Howell v. United States ( 2023 )

In the United States Court of Federal Claims
No. 20-735C
(Filed: February 9, 2023)
NOT FOR PUBLICATION
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STEPHEN P. HOWELL, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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OPINION AND ORDER
After the parties agreed to a voluntary remand, the Board for Correction of
Naval Records (“BCNR”) gave Plaintiff relief sufficient for disposition of the case, and
this Court entered judgment. See Def.’s Mot. for Voluntary Remand & Mot. to Stay
(ECF 7); Pl.’s Resp. to Mot. for Voluntary Remand & Mot. to Stay (ECF 9); Remand
Order (ECF 10); Def.’s Status Report (ECF 42); Pl.’s Notice Pursuant to RCFC 52.2(e)
(ECF 44); Dismissal Order (ECF 46). Plaintiff now moves for attorney’s fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Pl.’s Application
(ECF 45); Def.’s Resp. to Application (ECF 53); Pl.’s Reply (ECF 54).
The EAJA authorizes, under some circumstances, payment of attorney’s fees
to “a prevailing party other than the United States.” 28 U.S.C. § 2412(d)(1)(A). A
remand to an agency can confer “prevailing party” status if it amounts to relief on the
merits upon a finding of government error. Gurley v. Peake, 528 F.3d 1322, 1327 (Fed.
Cir. 2008); Former Emps. of Motorola Ceramic Prod. v. United States, 336 F.3d 1360,
1363–64, 1366 (Fed. Cir. 2003) (discussing Buckhannon Board and Care Home, Inc.
v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)).
But a litigant does not qualify as a “prevailing party” when the United States
voluntarily changes its position. Motorola, 336 F.3d at 1363–64. The litigant thus
must point to indications in the remand order or elsewhere in the record to show that
he obtained remand by proving error. Silva v. United States, 138 Fed. Cl. 325, 330
(2018); Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007).
The Court’s remand order did not find error or reach the merits of Plaintiff’s
claims in any way. Rather, the Court remanded for consideration of all issues based
on any new evidence the parties wished to provide. See Remand Order. That does not
make Plaintiff a prevailing party. See Davis, 475 F.3d at 1366. The application for
fees is therefore DENIED. I do not reach the parties’ other arguments about the
propriety of fees.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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