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Lynom v. Widnall

September 25, 2002

MARY LYNOM, PLAINTIFF,
v.
SHEILA WIDNALL, ET AL., DEFENDANTS.



MEMORANDUM OPINION AND ORDER

Pending before the Court is Lieutenant Colonel Mary Lynom's renewed application for attorney's fees and costs. Lieutenant Colonel Lynom filed a lawsuit in this Court on February 3, 1995.

Plaintiff seeks attorney's fees and costs in the amount of $174,664.73. For the following reasons, this Court grants plaintiff an award of fees and costs in the amount of $105,378.78.

I. Procedural History

On February 16, 1993, the Air Force Board for the Correction of Military Records ("Board") granted plaintiff's request for reinstatement with back pay and allowances, but denied plaintiff's request for retroactive promotion to Lieutenant Colonel. Plaintiff was subsequently promoted to the Reserve grade of Lieutenant Colonel through the normal promotion system with a date of rank in 1997.

Plaintiff filed this lawsuit in February 3, 1995. The complaint alleged that, beginning in 1981, plaintiff's supervisors at the Air National Guard of the U.S. Air Force subjected her to a pattern of sexual harassment. Plaintiff asserted that the Board's decision to deny the full relief that she requested was arbitrary and capricious and in violation of the APA. Plaintiff also brought constitutional tort claims against several officers.

On September 6, 1998, this Court dismissed plaintiff's Bivens claims against the individual officers. *fn1 However, the Court held that the Board's initial decision to award plaintiff less than all of the relief that she requested in her petition was arbitrary and capricious, in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. See Mem. Op. & Order, Civ. Action No. 95-233 (EGS), Slip Op. at 7 (Sept. 17, 1998). The Court remanded plaintiff's case to the Board "to reconsider its decision denying plaintiff the full relief that she requested." Id. The Court instructed that:

[i]f the Board again denies the full relief ... [it] must carefully explain such a decision in light of the overwhelming evidence in the administrative record of plaintiff's outstanding duty performance. Id.

On November 2, 1999, the Board issued an Addendum to Record of Proceedings recommending that plaintiff's military records "be corrected to show that she was promoted to the Reserve grade of Lieutenant Colonel with a promotion date of April 16, 1989." Admin. Record, vol. II at 3-9. The effect of this award was to make plaintiff's promotion effective eight years earlier, with corollary back pay and other allowances totaling approximately $46,000.

Following the Board's decision on remand, plaintiff moved the Court for a second remand. On March 21, 2000, the Court denied plaintiff's motion, and this case was dismissed on January 5, 2001.

II. Analysis

Plaintiff seeks attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), which in relevant part provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. Id.

The Court finds that plaintiff is a prevailing party for purposes of the EAJA, and that defendant's position in opposing plaintiff's claim that the Board's consideration of her petition violated the APA was not substantially justified. Accordingly, ...


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