The opinion of the court was delivered by: REGGIE WALTON, District Judge
This matter comes before the Court on the Plaintiff's Motion
for Attorney's Fees pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412 (2000) ("EAJA").*fn1 For the reasons set
forth below, the Court denies the plaintiff's motion.
The facts of this case have been exhaustively discussed in this
Court's prior Memorandum Opinion, Calloway v. Brownlee,
366 F. Supp. 2d 43, 47-49 (D.D.C. 2005), and will only briefly be
reviewed here to the extent necessary to resolve the pending
In 1974, the plaintiff enlisted in the United States Army as an
active duty member. Initially, the plaintiff trained as an automated data specialist;
however, in October 1983, the plaintiff became an Army recruiting
specialist. Amended Compliant for Declaratory Relief ("Compl.")
at 1-2. Although the plaintiff received several awards and
accolades throughout his career, he alleged that once Captain
Latham became his supervisor and performance evaluator, his
scores in his Noncommissioned Officer Evaluation Reports
("NCOER") began to decline.*fn2 Id. ¶¶ 7-15. For example,
the plaintiff noted that Captain Latham awarded him only two
"excellence marks" and three "success marks" in the NCOER for the
period of August 1993 through August 1994,*fn3 despite
having received five "excellence marks" in his prior NCOER. Id.
¶ 16. Following this 1994 NCOER, the plaintiff was assigned to
another battalion. Id. ¶ 26. The plaintiff opines that his 1994
NCOER should have been classified as a "relief-for-cause"
NCOER,*fn4 which would have provided him the opportunity to
receive formal counseling, time to react to the report, and an
explanation of the reasons for his removal, because it formed the
basis for his transfer to another battalion. Id. ¶¶ 20-25.
Thus, according to the plaintiff, the Army failed to comply with
its own regulations. Id. ¶¶ 29-30. In November 1994, the
plaintiff's new supervisor issued another NCOER regarding the
plaintiff. Id. According to the plaintiff, his new supervisor, in order to take credit for the plaintiff's
successes, recommended that the plaintiff be relieved of his
duties. Id. ¶¶ 27-28. However, the plaintiff again asserts that
a "relief-for-cause" NCOER was not issued, although such a NCOER
should have been issued. Id. ¶¶ 29-30.
In January 1997, after the plaintiff was not selected for a
promotion, he filed an appeal with the Enlisted Special Review
Board ("ESRB") seeking removal from his record the NCOER for the
period of August 1993 through January 1994 and the NCOER issued
in November 1994. Id. ¶¶ 33-37. The ESRB denied the
plaintiff's request, and the plaintiff subsequently appealed the
denial to the Army Board for Correction of Military Record
("ABCMR"), which also denied his request. Id. ¶¶ 35-37. On
February 13, 2004, the plaintiff commenced this action.
(B) This Court's Prior Opinion
In this action, the plaintiff challenged the ABCMR's decision
to deny his request to have the two contested NCOERs "removed
from his personnel file or otherwise corrected to reflect his
true work performance." Calloway, 366 F. Supp. 2d at 45. The
defendant moved for dismissal of this matter or alternatively
requested summary judgement, and the plaintiff filed a
cross-motion for summary judgment. Id. The Court denied both
government motions and granted, in part, the plaintiff's
cross-motion for summary judgement. Id.
The Court rendered its rulings for the following reasons.
First, this Court found, despite the defendant's argument to the
contrary, that the Little Tucker Act, 28 U.S.C. § 1346 (2000),
did not prevent this Court from exercising subject matter
jurisdiction to adjudicate this case since the plaintiff was not
seeking monetary relief in excess of $10,000. Calloway,
366 F. Supp. 2d at 50-53. The defendant also asserted that he was
entitled to summary judgment because the administrative record
clearly showed that the agency carefully considered the claims
advanced by the plaintiff, and thus, he did not violate the "arbitrary and
capricious" standard of the Administrative Procedure Act ("APA"),
5 U.S.C. § 706(2)(a)(2000). Id. at 54. The plaintiff, on the
other hand, asserted, among other arguments, that the ABCMR's
actions were "arbitrary and capricious" because it failed to
consider the plaintiff's claim that the two contested NCOERs were
improperly classified. Id. After a careful review of the
administrative record and the papers submitted to it by the
parties, this Court held that even though it was not "explicitly
clear" that the plaintiff was contending that his NCOERs were
improperly classified, "there [was] some evidence in the record
to suggest" that this argument had been raised. Id. at 54-55.
Moreover, because the plaintiff was proceeding pro se at the
agency level, this Court took great pains to ensure that his
rights were protected from "the consequences of technical
errors." Id. at 54-55. Thus, because the improper
classification argument had not been reviewed by the ABCMR, the
Court remanded the case to the ABCMR to address the argument in
the first instance. Id. at 56.
The plaintiff now seeks attorney's fees under the EAJA. The
EAJA provides that
a court shall award to a prevailing party other than
the United States fees and other expenses . . .
incurred by that party in any civil action (other
than cases sounding in tort), including proceedings
for judicial review of an agency action, brought by
or against the United states in any court having
jurisdiction of that action, unless the court finds
that the position of the United States was
substantially justified or that special circumstances
make an award unjust.
28 U.S.C. § 2412 (d)(1)(A). Thus, to award attorney's fees under
the EAJA, the Court must find that (1) the plaintiff is a
"prevailing party;" (2) the government was not "substantially
justified" in the position it took; and (3) the attorney's fees
request is reasonable. United States v. Wade, 255 F.3d 833
836-37 (D.C. Cir. 2001). It is the prevailing party's burden to
establish that it is a "prevailing party" within the meaning of the EAJA. Turner v.
District of Columbia Bd. of Elections and Ethics, 354 F.3d 890
895 (D.C. Cir. 2004). Once this is established, the burden then
shifts to the defendant to establish that its position was
"substantially justified" or that special circumstances make the
award unjust. Taucher v. Brown-Hruska, 396 F.3d 1168
(D.C. Cir. 2005). Finally, if the defendant satisfies his
obligation, the burden shifts back to the plaintiff to establish
that the fees requested are reasonable. Turner,
354 F.3d at 895.
Here, the plaintiff contends that he was a "prevailing party"
within the meaning of the EAJA and that the government's
positions in the litigation before this Court were not
"substantially justified." Pl.'s Mem. at 1. The defendant, on the
other hand, opposes the attorney's fees request, arguing that the
plaintiff was not a "prevailing party" within the meaning of the
EAJA. Def.'s Opp'n at 1-2. Specifically, the defendant opines
that the plaintiff is not a "prevailing party" because the Court
merely remanded the case to the ABCMR to address, in the first
instance, the plaintiff's improper classification argument or
explain why it failed to do so. Def.'s Opp'n at 2-3.
Additionally, the defendant asserts that even if the plaintiff
was a "prevailing party," the government's failure to address the
plaintiff's improper classification argument was "substantially
justified" because the plaintiff failed to clearly raise the
argument at the agency level. Def.'s Opp'n at 9-10. In support of
its position, the government notes that "[t]his Court recognized
the justification for the government's position, noting `it is
easy to see why defendant would make this argument (that the
issue was not raised administratively) as neither the ABCMR or
the ESRB addresses the issue.'" Id. Finally, the defendant
contends that even if attorney's fees are awarded, the
plaintiff's request ...