The opinion of the court was delivered by: Reggie B. Walton United States 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 motion.
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 judgment, 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 judgment. 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, 1173 (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 ...