NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL SABO, NICHOLAS WELLS, JUAN
PEREZ, ALAN PITTS, BILLY J. TALLEY, AIMEE
SHERROD, TYLER EINARSON, ON BEHALF OF
THEMSELVES AND ALL OTHER INDIVIDUALS
SIMILARLY SITUATED,
Plaintiffs-Appellees
v.
UNITED STATES,
Defendant-Appellant
______________________
2016-2693
______________________
Appeal from the United States Court of Federal
Claims in No. 1:08-cv-00899-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: December 15, 2017
______________________
ARNOLD BRADLEY FAGG, Morgan, Lewis & Bockius
LLP, Washington, DC, argued for plaintiffs-appellees.
Also represented by CHARLES P. GROPPE; BARTON F.
STICHMAN, National Veterans Legal Services Program,
Washington, DC.
2 SABO v. UNITED STATES
ALEXANDER ORLANDO CANIZARES, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., DOUGLAS K. MICKLE, SHARI A. ROSE.
______________________
Before MOORE, CHEN, and STOLL, Circuit Judges.
MOORE, Circuit Judge.
The government appeals from the Court of Federal
Claims’ (“Claims Court”) judgment and order awarding
$3,862,924.53 to a certified class of plaintiffs (“Plaintiffs”)
for attorneys’ fees and expenses pursuant to the Equal
Access to Justice Act (“EAJA”). For the reasons discussed
below, we affirm.
BACKGROUND
When a disability renders a military service member
unfit to perform his duties, he may be retired—either
permanently or temporarily (by being placed on the
temporary disability retirement list)—or separated. 10
U.S.C. §§ 1201–03. A service member can be retired upon
a determination that, among other requirements, his
disability is at least 30 percent, or separated upon a
determination that his disability is less than 30 percent,
“under the standard schedule of rating disabilities in use
by the Department of Veterans Affairs at the time of the
determination.”
Id. §§ 1201(b), 1203(b). The Secretaries
of the military service branches are authorized to pre-
scribe regulations to determine “the percentage of disabil-
ity of any such member at the time of his separation
from active duty.”
Id. § 1216(b)(2).
In 2008, Congress enacted the National Defense
Authorization Act for Fiscal Year 2008 (“NDAA”). Pub. L.
No. 110-181, 122 Stat. 3. As part of the NDAA, Congress
created a new statutory section directing that the service
SABO v. UNITED STATES 3
branches “shall, to the extent feasible, utilize the schedule
for rating disabilities in use by the Department of Veter-
ans Affairs” and “may not deviate from the schedule”
unless it would result in a greater percentage of disabil-
ity.
Id. § 1642 (codified at 10 U.S.C. § 1216a).
The Department of Veterans Affairs’ (“VA”) Schedule
for Rating Disabilities (“VASRD”) contains provisions
relating to post-traumatic stress disorder (“PTSD”).
Specifically, VASRD § 4.129 provides:
When a mental disorder that develops in service
as a result of a highly stressful event is severe
enough to bring about the veteran’s release from
active military service, the rating agency shall as-
sign an evaluation of not less than 50 percent and
schedule an examination within the six month pe-
riod following the veteran’s discharge to deter-
mine whether a change in evaluation is
warranted.
38 C.F.R. § 4.129. VASRD § 4.130 sets forth a schedule
for rating mental disorders, including PTSD.
Id. § 4.130.
Prior to the enactment of NDAA, Department of
Defense Instruction (“DoDI”) 1332.39 generally adopted
the VASRD as the standard for assignment of disability
ratings, but stated “not all the general policy provisions in
Sections 4.1 – 4.31 of the VASRD are applicable.” DoDI
1332.39, Application of the Veterans Administration
Schedule for Rating Disabilities ¶ 4.2 (Nov. 14, 1996). It
specifically declined to adopt the VA’s convalescent rat-
ings, which permit assignment of total disability ratings
for specified periods of time without regard to actual
impairment of function.
Id. ¶ 6.7; see 38 C.F.R. §§ 4.30,
4.128. The Army also issued policy memoranda in 2002
and 2005 declaring that the 50 percent rating in VASRD
§ 4.129 was a convalescent rating that it would not use
when assigning disability ratings to soldiers deemed unfit
for duty due to PTSD. Shortly after passage of the NDAA,
4 SABO v. UNITED STATES
the Department of Defense (“DoD”) rescinded DoDI
1332.39 and directed the service branches to prospectively
apply VASRD § 4.129 to service members deemed unfit
for duty due to PTSD.
Plaintiffs are service members who served in Iraq and
Afghanistan, were diagnosed with PTSD, and were medi-
cally separated as a result. All received disability ratings
of less than 50 percent for PTSD, in accordance with DoD
policy prior to the enactment of NDAA. On December 17,
2008, Plaintiffs sued, alleging the DoD wrongfully disre-
garded VASRD § 4.129 and chapter 61 of Title 10 in
rating their disabilities. On July 15, 2011, the parties
filed a settlement agreement (“Agreement”), which the
Claims Court approved on December 22, 2011.
The terms of the Agreement involved various actions
by the Plaintiffs, the government, and the Claims Court,
but the Agreement generally provided the service branch-
es would change Plaintiffs’ records to reflect a 50 percent
disability rating for PTSD. It further provided:
[T]he Court will maintain jurisdiction of the
claims . . . until the parties submit to the Court a
joint status report that lists (in filings made under
seal) the names of those plaintiffs whose military
records have been changed pursuant to the agreed
upon terms above, and as set forth in the Exhibits
to this agreement. By submitting the list of
names to the court under cover of these joint sta-
tus reports, the parties further agree that these
plaintiffs’ claims can be dismissed from the case
with prejudice, consistent with paragraph 2 of this
agreement, and with a provision incorporating the
terms of this Settlement Agreement in the order
of dismissal.
J.A. 831–32 ¶ 20. The Agreement further provided:
SABO v. UNITED STATES 5
Nothing in th[e] Settlement Agreement shall pre-
clude Plaintiffs from making an application for
fees or other applicable relief under [EAJA] nor
from receiving an award pursuant to EAJA, and
the government does not waive any defenses to
any such EAJA application nor concede or admit
any entitlement under EAJA[.]
J.A. 825 ¶ 2.
Plaintiffs filed an initial application for fees and costs
under EAJA on October 10, 2012. The government moved
to dismiss the application because, under 28 U.S.C.
§ 2412(d)(1)(B), Plaintiffs’ EAJA application was untimely
filed more than thirty days after the day the Claims Court
approved the Agreement. The Claims Court denied the
motion because “[i]ssues of implementation of the Settle-
ment Agreement remain[ed] to be decided by the Court,”
and treating the Agreement as a final judgment would
“conflict with the general rule that dismissal of all claims
is a prerequisite for a final judgment” and “frustrate the
purpose of the EAJA.” J.A. 5–6.
On July 26, 2016, the Claims Court awarded Plain-
tiffs the entirety of their requested attorneys’ fees and
expenses pursuant to EAJA. It held that the govern-
ment’s position was not substantially justified, in part,
because VASRD § 4.129 is not a convalescent rating and
was applicable prior to enactment of the NDAA. On
October 13, 2016, the Claims Court dismissed the last
remaining claim with prejudice. On November 7, 2016,
the Claims Court issued a judgment pursuant to Rule 58
“that all claims in this matter are dismissed, with preju-
dice.” J.A. 3009. The government timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
The government puts forth two arguments contesting
the Claims Court’s award under EAJA. First, it argues
6 SABO v. UNITED STATES
the Claims Court’s December 2011 approval of the
Agreement constituted a final judgment pursuant to
§ 2412(d)(2)(G). We do not agree.
“A party seeking an award of fees and other expenses
shall, within thirty days of final judgment in the action,
submit to the court” its EAJA application. 28 U.S.C.
§ 2412(d)(1)(B). “Final judgment” means “a judgment
that is final and not appealable, and includes an order of
settlement.”
Id. § 2412(d)(2)(G). Of course, a court’s
adoption of a settlement agreement can constitute a final
judgment for the purposes of EAJA. The statutory lan-
guage of EAJA expressly anticipates that “an order of
settlement” can constitute a final judgment. 28 U.S.C.
§ 2412(d)(2)(G). And we have previously taken no issue
with a final judgment that stemmed from the parties’
settlement agreement and stipulation for entry of judg-
ment. See, e.g., Levernier Const., Inc. v. United States,
947 F.2d 497, 498 (Fed. Cir. 1991) (reviewing EAJA
award filed after the parties implemented a settlement
agreement and the court entered judgment for the agreed
amount). If the parties had agreed to dismiss the entire
class of claims together as part of a global settlement, the
court’s approval of the settlement agreement might have
been reasonably construed as a “final judgment” for the
purposes of § 2412.
However, the fact that a court approved and adopted
a settlement agreement does not always mean that the
order is a “final judgment” under § 2412. A final judg-
ment must be one “that is final and not appealable.” 28
U.S.C. § 2412(d)(2)(G). The statute contemplates the
filing of an EAJA application only after the case is entire-
ly at an end (final), including appealability. See Melkon-
yan v. Sullivan,
501 U.S. 89, 96 (1991) (explaining that
the 30-day clock begins to run after the time to appeal the
court’s judgment has expired). The final judgment rule
precludes appeals until the trial court “ends the litigation
on the merits and leaves nothing for the court to do but
SABO v. UNITED STATES 7
execute the judgment.” Catlin v. United States,
324 U.S.
229, 233 (1945). Whether a particular settlement agree-
ment satisfies this finality requirement is determined
according to the terms of the settlement agreement. And
even in a settled case, “the trial court must dismiss, with
or without prejudice, all of the claims as a predicate to a
final judgment before appellate jurisdiction may lie.”
Silicon Image, Inc. v. Genesis Microchip Inc.,
395 F.3d
1358, 1363 (Fed. Cir. 2005).
The Agreement in this case was not contemplated by
the parties to constitute a final judgment of all claims.
The first sentence under the section titled “General Set-
tlement Framework” states that “[w]ithin six months of
the date on which the Court approves this Settlement
Agreement, defendant shall take all steps necessary to
execute” a series of actions including changing military
records of individual plaintiffs and transmitting a copy of
the changed record to the class member and Plaintiffs’
counsel. J.A. 826–27 ¶ 6. The Agreement expressly
contemplated “that the [Claims] Court will maintain
jurisdiction of the claims” until the parties jointly submit-
ted lists of individual plaintiffs whose military records
had been changed in accordance with the Agreement.
J.A. 831–32 ¶ 20. Only upon submission of these joint
status reports did the parties “agree that these plaintiffs’
claims can be dismissed from the case with prejudice.”
Id.
The parties did not authorize the dismissal of any claims
unless and until the joint status reports were submitted.
The parties also anticipated that the Agreement would be
executed in batches: the first joint status report would “be
filed within 60 days of the court’s final approval” of the
Agreement, with subsequent reports “filed on an ongoing
basis as additional plaintiff’s [sic] military records are
changed, but at a minimum, every 90 days thereafter.”
Id. This evidences the parties’ intent that this class
action suit would not be final unless and until joint status
8 SABO v. UNITED STATES
reports were submitted and approved for all individual
plaintiffs in the class.
The Agreement in this case did not become “final” for
the purposes of EAJA until October 13, 2016, when the
Claims Court dismissed the last claim with prejudice.
The Agreement reflects the parties’ contemplation that
there existed conditions precedent to the dismissal of the
claims similar to those in Silicon
Image. 395 F.3d at
1363. Plaintiffs’ EAJA application was timely filed. 1
Second, the government argues its positions both be-
fore and during litigation were substantially justified. We
hold that the Claims Court did not abuse its discretion in
finding that the government’s positions were not substan-
tially justified.
A court shall award to a prevailing party other than
the United States fees and expenses incurred in a civil
action against the United States “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). The government bears
the burden of establishing its position was substantially
justified, and its position includes actions both before and
during litigation. Patrick v. Shinseki,
668 F.3d 1325,
1330 (Fed. Cir. 2011). A position is substantially justified
if a reasonable person could think it correct.
Id. We
review the Claims Court’s EAJA award, including the
determination that the government’s position was not
substantially justified, for abuse of discretion. Libas, Ltd.
v. United States,
314 F.3d 1362, 1364–65 (Fed. Cir. 2003).
In a thorough and well-reasoned opinion, the Claims
Court clearly addressed each of the government’s argu-
ments and explained why the government’s positions,
1 The parties did not dispute that Plaintiffs may file
an EAJA application before a final judgment.
SABO v. UNITED STATES 9
both before and during litigation, were not substantially
justified. It explained that the plain language of 10
U.S.C. §§ 1201–03, applicable before enactment of the
NDAA, required the service branches to use “the standard
schedule of rating disabilities in use by the [VA] at the
time of the determination” without qualification that
some sections of the VASRD should be used but not
others. It reasoned that the DoD’s characterization of
VASRD § 4.129 as a convalescent rating was contrary to
the description of convalescent ratings in VASRD §§ 4.30
and 4.128 as a 100 percent total disability rating when
treatment for a disability resulted in hospitalization or
immobilization. 38 C.F.R. §§ 4.30, 4.128. And while the
Claims Court recognized that the government’s decision
to pursue a settlement with Plaintiffs was substantially
justified, it evaluated the government’s actions after
approval of the Agreement and concluded that it failed to
meet its burden of establishing that the actions it took to
expeditiously process Plaintiffs’ claims were substantially
justified. Under these circumstances, we cannot say the
Claims Court abused its discretion in concluding that,
overall, the government’s positions were not substantially
justified.
CONCLUSION
For the foregoing reasons, we affirm the Claims
Court’s judgment awarding fees and expenses under
EAJA.
AFFIRMED
