The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiff has filed a Motion for Attorney's Fees and Costs for
her litigation of the underlying action, as well a Motion to
Supplement Attorney's Fees to cover costs incurred preparing her
response to Defendant's Opposition to the underlying Motion. The
Government has opposed both Motions and the Plaintiff has filed
Replies to those Oppositions. For the following reasons, both
motions will be granted.
In the underlying action, Plaintiff, who is the widow of
retired Air Force Colonel Jerauld Gentry, sought a remand to the
Air Force Board for Correction of Military Records ("AFBCMR") to
consider her application to change her deceased husband's
Uniformed Services Survivor Benefit Plan records to name her as
his designated beneficiary. Plaintiff filed her action under the
Administrative Procedure Act, 5 U.S.C. § 701, and obtained an
Order from this Court ruling that the Agency had acted
arbitrarily and capriciously in denying her application. The case
was remanded to the AFBCMR to review whether Plaintiff's
application to correct Colonel Gentry's records should be
granted. Plaintiff now seeks attorney's fees and costs under the
Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. 1. Plaintiff is clearly the prevailing party in this action.
She sought only one remedy, namely, remand to the AFBCMR for
reconsideration, and that was the relief she obtained when her
Motion for Summary Judgment was granted and Defendant's Motion
for Summary Judgment was denied. For this reason, Buckhannon Bd.
and Care Home, Inc., et al. v. West Virginia Dept. of Health and
Human Resources, et al., 532 U.S. 598 (2001), is totally
distinguishable. Buckhannon and its progeny involved factual
situations where defendant voluntarily took certain actions
favorable to the plaintiff and plaintiff failed to obtain a
"court ordered" change in its legal relationship with the
defendant. Neither factor is present here. The Agency did not act
voluntarily to reconsider Plaintiff's application, and Plaintiff
secured a judgment, i.e., a court order, changing the legal
relationship between the parties. Because of this Court's Order,
the Defendant was required to consider Plaintiff's application
and therefore, contrary to her position before filing this
lawsuit, she had the opportunity to prevail before the AFBCMR. As
our Court of Appeals noted in Thomas v. National Science
Foundation, 330 F.3d 486, 494 (D.C. Cir. 2003), the judicial
relief required under Buckhannon must entail "some action (or
cessation of action) by the defendant that the judgment produces"
(citing Buckhannon, 532 U.S. at 606. That is precisely what
Plaintiff obtained judicial relief requiring the Agency to
consider her application. See also Role Models America, Inc.
v. Brownlee, 353 F.3d 962, 966 (D.C. Cir. 2004); Lynom v.
Widnall, 222 F. Supp.2d 1, 4 (D.D.C. 2002).
2. The next issue to be addressed under the Equal Access to
Justice Act is whether Defendant's position was "substantially
justified." The test under the case law is one of reasonableness.
Role Models America, Inc., id. Here, this Court held that the
actions of the Executive Director of the AFBCMR denying
Plaintiff's request to correct Colonel Gentry's military records was "arbitrary and capricious, an abuse of discretion,
not based on substantial evidence and otherwise contrary to law
under the APA." Mem. Op., July 19, 2004 at 10-11. While it is
true that such a finding does not, in and of itself, mandate the
conclusion that the Government's position was not substantially
justified, the record in this case fully supports such a
conclusion. In its earlier Opinion, the Court ruled that the
Executive Director violated the clear and obvious meaning of the
governing statute requiring that correction board decisions be
made by "boards of civilians." Id. at 8. Therefore, the
Executive Director, as a non-civilian, did not have the authority
to refuse to consider Plaintiff's application. The Court also
concluded that the AFBCMR had the statutory authority to correct
Colonel Gentry's military record, but was prevented from doing so
because the Executive Director refused to allow it to consider
Defendant relies on the fact that it had obtained a legal
opinion justifying the Executive Director's refusal to consider
Plaintiff's application. Apart from the fact that that legal
opinion was badly flawed in its reasoning, the Executive Director
had already obtained an advisory opinion recognizing that an
injustice had occurred and that the records should be corrected.
Given the fact that the statute required that the decision in
issue be made by "boards of civilians," and that the Executive
Director had already obtained an advisory opinion concluding that
Colonel Gentry's records should be corrected, the Court concludes
that the Defendant's position was not substantially justified
under the EAJA. See Role Models Am., Inc.,
353 F.3d at 967-68.
3. It is noteworthy that the Defendant has not in its
Oppositions to either Motion challenged either the hourly award
requested by Plaintiff, or the number of hours Plaintiff's
counsel spent on this matter, or the costs incurred. The Court
has independently examined all the supporting data submitted and
finds that the hourly award of $147.74 for 2003 and $150 for 2004
are reasonable, that the 60.2 hours expended on this case are also
reasonable, and that the costs of $509.52 are fully justified.
WHEREFORE, it is this 31st day of August, 2005, hereby
ORDERED, that Plaintiff's Motions for Attorney's Fees and
Costs is granted; and it is further
ORDERED, that Plaintiff's Motion to Supplement Attorney's
Fees is granted.
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