Crawford v. United States

66 F.4th 1339

• Court: Court of Appeals for the Federal Circuit
• Decided: April 26, 2023
• Docket: 22-1585
• Status: Published

Opinion

Case: 22-1585 Document: 25 Page: 1 Filed: 04/26/2023

United States Court of Appeals for the Federal Circuit ______________________

JOHN CRAWFORD, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2022-1585 ______________________

Appeal from the United States Court of Federal Claims in No. 1:18-cv-01956-PEC, Judge Patricia E. Campbell- Smith. ______________________

Decided: April 26, 2023 ______________________

CHRISTIAN CURRAN, Crowell & Moring, LLP, Washing- ton, DC, argued for plaintiff-appellant. Also represented by STEPHEN JOHN MCBRADY, CHARLES BAEK; ROCHELLE BOBROFF, National Veterans Legal Services Program, Ar- lington, VA.

WILLIAM PORTER RAYEL, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE. ______________________ Case: 22-1585 Document: 25 Page: 2 Filed: 04/26/2023

Before MOORE, Chief Judge, PROST and STARK, Circuit Judges. MOORE, Chief Judge. John Crawford appeals a decision of the United States Court of Federal Claims holding Mr. Crawford is not enti- tled to attorneys’ fees and expenses under the Equal Access to Justice Act (EAJA). We reverse. BACKGROUND Mr. Crawford served honorably in the United States Army and Florida Army National Guard for two decades before he was discharged in 2011 for failure to meet medi- cal retention standards due to his service-connected PTSD. Mr. Crawford’s PTSD began after his second tour of duty in Iraq, at which time he was referred to the Florida State Surgeons Medical Discharge Review Board (SSMDRB) for a medical assessment. J.A. 282. The SSMDRB found Mr. Crawford did not meet medical retention standards and that his PTSD was incurred in the line of duty. J.A. 1221– 22. It accordingly recommended Mr. Crawford be coun- seled regarding his rights to request a fitness determina- tion by a Physical Evaluation Board (PEB) of the Army’s Physical Disability Evaluation System (PDES), a prerequi- site for medical retirement. See 10 U.S.C. § 1201. Despite the SSMDRB’s findings, Mr. Crawford was not referred to a PEB and was instead erroneously discharged as if his PTSD was not incurred in the line of duty. As a consequence, Mr. Crawford never received a fitness deter- mination or medical retirement. In 2015, Mr. Crawford sought correction of his records and retroactive benefits be- fore the Army Board for the Correction of Military Records (ABCMR). Although the ABCMR found Mr. Crawford’s PTSD may have been service connected and that he should have been referred to PDES, the ABCMR did not grant him that relief. J.A. 1176. Instead, it directed the Office of the Case: 22-1585 Document: 25 Page: 3 Filed: 04/26/2023

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Surgeon General to further review Mr. Crawford’s records to determine whether he met retention standards at the time of his discharge and whether he should have been re- ferred to PDES. See J.A. 1166; J.A. 1176. Pursuant to that directive, Dr. Kathryn O’Donnell reviewed Mr. Crawford’s records. Notwithstanding the SSMDRB’s findings and the uncontested fact that Mr. Crawford was discharged for fail- ure to meet medical retention standards, Dr. O’Donnell rec- ommended that Mr. Crawford not be referred for a fitness determination because, in her opinion, Mr. Crawford met retention standards at the time of his discharge. J.A. 1002–03. Following Dr. O’Donnell’s report, Mr. Crawford filed a complaint with the United States Court of Federal Claims. The complaint directly challenged the ABCMR’s and Dr. O’Donnell’s decisions and findings, but also alleged an orig- inal error in the Army’s failure to refer him to a PEB for a fitness determination prior to his separation, as required by Army Regulation 40-501, ¶ 10-25. J.A. 14–37. Rather than answer Mr. Crawford’s complaint, the government filed a voluntary motion for remand to the ABCMR (Re- mand Motion). J.A. 41–46; J.A. 56–60. The Remand Mo- tion argued Mr. Crawford’s claims for medical retirement should not proceed until the ABCMR conducted the predi- cate fitness determination, which the government con- ceded did not occur at the time of Mr. Crawford’s separation. J.A. 43–45. The Court of Federal Claims concluded remand was warranted for two “principal reasons”: (1) remand for a fit- ness determination could obviate the need for further pro- ceedings in the event the ABCMR granted Mr. Crawford relief, and (2) if the ABCMR did not grant such relief, then the more extensive record developed on remand would be essential for further litigation. J.A. 82–84 (Remand Deci- sion). Accordingly, it granted the motion and remanded for the ABCMR to “determine and explain whether Mr. Craw- ford was unfit for duty at the time of his separation . . . Case: 22-1585 Document: 25 Page: 4 Filed: 04/26/2023

based upon the existing ABCMR record and any other doc- umentation received by the ABCMR on remand.” J.A. 83– 84. On remand, the ABCMR found Mr. Crawford was enti- tled to medical retirement based solely on the evidence available “at the time of [his] separation without additional processing through PDES” and accordingly granted him complete relief, including the correction of his records and medical retirement benefits retroactive to the date of his discharge. J.A. 132; see also J.A. 413. Mr. Crawford then moved for attorneys’ fees and expenses pursuant to § 2412(d)(1)(A) of the EAJA, arguing the remand was pred- icated on agency error and that he was therefore a prevail- ing party under the statute. The Court of Federal Claims denied the motion, reasoning the remand was based on ju- dicial economy rather than a finding or admission of agency error, and that Mr. Crawford was therefore not a prevailing party. Crawford v. United States, 157 Fed. Cl. 741 (2022) (Fees Decision). Mr. Crawford appeals. We have jurisdic- tion pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION Section 2412(d)(1)(A) of Title 28 directs courts to award attorneys’ fees and expenses incurred in civil actions against the government if: (1) the litigant is a “prevailing party”; (2) the “position of the United States” was not “sub- stantially justified”; and (3) special circumstances do not make the award unjust. Because we conclude these condi- tions are satisfied, 1 we reverse.

1 The government bears the burden to establish the existence of special circumstances making the award un- just, see, e.g., Brewer v. Am. Battle Monuments Comm’n, 814 F.2d 1564, 1569 (Fed. Cir. 1987), but did not contend, either before the Court of Federal Claims or on appeal, that such circumstances exist here. Case: 22-1585 Document: 25 Page: 5 Filed: 04/26/2023

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I To be a prevailing party under § 2412(d)(1)(A), a plain- tiff must receive “at least some relief on the merits of his claims.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603–04 (2001). Typically, it is readily apparent whether a decision grants a party relief on the merits and thereby confers pre- vailing party status. The Supreme Court has made clear, for example, that remands to district courts do not consti- tute relief on the merits or otherwise confer prevailing party status. See Hewitt v. Helms, 482 U.S. 755, 762 (1987). Where a decision remands a matter to an adminis- trative agency for further proceedings, however, whether the plaintiff is prevailing may be less clear because, in some cases, “[s]ecuring a remand to an agency can consti- tute the requisite success on the merits.” Kelly v. Nichol- son, 463 F.3d 1349, 1353 (Fed. Cir. 2006). Accordingly, “we have developed tests [to determine] when court-to-administrative agency remands confer pre- vailing party status.” Davis v. Nicholson, 475 F.3d 1360, 1363 (Fed. Cir. 2007). Where, as here, the remanding court retains jurisdiction, a plaintiff is a prevailing party if the remand was “because of alleged error by the agency” and the plaintiff is successful in the remand proceedings. For- mer Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003). Remands “based on our recognition of agency error from the record,” as well as judicial findings or agency concessions of error, confer pre- vailing party status. Davis, 475 F.3d at 1364–65 (citing Kelly, 463 F.3d at 1354 n.3). “[O]ur focus is on whether agency error was the reason,” whether explicit or implicit, for the remand. Id. at 1364. In the absence of a judicial finding or agency concession of error, “the default rule is that the remand is not based on administrative error” and the burden is on the EAJA applicant “to prove, based on the record, that the remand had to have been predicated on administrative error even though the remand order does Case: 22-1585 Document: 25 Page: 6 Filed: 04/26/2023

not say so.” Id. at 1366. Whether a party is a prevailing party under § 2412(d)(1)(A) is a question of law we review de novo. 2 We hold the Court of Federal Claims erred in conclud- ing Mr. Crawford was not a prevailing party under § 2412(d)(1)(A). The Remand Decision provided “two prin- cipal reasons” for remand: [1] The ABCMR has not yet considered the find- ings of Dr. Kathryn R. O’Donnell. . . . As [the gov- ernment] notes, it is possible once the ABCMR has considered this new evidence, some or all of plain- tiff’s requests for relief may be granted by that board. See ECF No. 7 at 4 (stating that “[i]f the ABCMR agrees with Mr. Crawford, it may obviate the need for further litigation”). [2] Further, once the ABCMR has created a more extensive record of the Army’s consideration of all of Mr. Crawford’s claims, that record would be essential to further lit- igation in this court, if the ABCMR again rejects Mr. Crawford’s relief. See ECF No. 9 at 1-2 (stating the government “is seeking to have the ABCMR de- cide, for the first time, whether Mr. Crawford was unfit for duty at the time of his separation, a

2 The parties dispute, in part, the applicable stand- ard of review. While the government agrees with Mr. Crawford that the ultimate question of whether a litigant is a prevailing party is a question of law subject to de novo review, it contends the Court of Federal Claims’ determi- nation that the government did not concede error in its Re- mand Motion is a finding of fact reviewed for clear error. We need not resolve this dispute because we conclude the Court of Federal Claims’ determination that the govern- ment did not concede error must be reversed under either standard of review. Case: 22-1585 Document: 25 Page: 7 Filed: 04/26/2023

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determination that is necessary for Mr. Crawford to obtain the relief he seeks”). J.A. 83 (emphasis in original). The Court of Federal Claims reasoned Mr. Crawford was not a prevailing party because the remand for Mr. Crawford to receive the fitness deter- mination he was previously denied was “rooted in concerns for judicial efficiency” rather than agency error. Fees Deci- sion, 157 Fed. Cl. at 745. We do not agree. While the Remand Decision explicitly invoked concerns for judicial efficiency, that does not preclude the conclusion that the remand was nevertheless implicitly predicated on agency error. The judicial efficiency achieved in this case was to provide Mr. Crawford with the process he was due either at the time of his discharge or during the pre-re- mand ABCMR proceedings—an omission the government repeatedly acknowledged in its Remand Motion and which the ABCMR subsequently determined was error. See, e.g., J.A. 43 (“[I]t is undisputed that neither a PEB nor the ABCMR determined whether Mr. Crawford was fit or unfit for duty at the time of his separation from the Army Na- tional Guard.”); J.A. 56 (“Because no competent board has made a fitness determination, a fact that is undisputed, we proposed a remand to the Army so that the ABCMR can make this necessary determination.”); J.A. 132 (finding the Army “should have referred [Mr. Crawford]” to PDES “but failed to do so without adequate explanation”). But for this error, there would be no judicial efficiency in remanding the case for Mr. Crawford to obtain a fitness determination. If proper procedures had been followed, Mr. Crawford would have already received that determination and been granted medical retirement. J.A. 132 (finding Mr. Craw- ford’s entitlement to medical retirement was apparent based on the “medical evidence available . . . at the time of [his] service separation without additional processing through PDES”). Case: 22-1585 Document: 25 Page: 8 Filed: 04/26/2023

This case is therefore distinguishable from prior deci- sions in which we have held remands based “solely” on ju- dicial efficiency do not confer prevailing party status. See Gurley v. Peake, 528 F.3d 1322, 1324 (Fed. Cir. 2008) (hold- ing remand to avoid “piecemeal litigation” of “inextricably intertwined claims” did not confer prevailing party status where it was explicitly predicated on judicial economy and “nothing in the joint motion [for remand] [] suggest[ed] that the Board erred”); see also Ward v. U.S. Postal Serv., 672 F.3d 1294, 1300 (Fed. Cir. 2012) (discussing Gurley). Here, the remand was necessary to cure the agency error. To the extent the remand was based both on judicial efficiency and agency error, the government concedes this is sufficient to confer prevailing party status. Oral Arg. at 21:40–22:10.3 The Court of Federal Claims erred in determining the re- mand was “rooted in concerns for judicial efficiency” to the exclusion of agency error. Fees Decision, 157 Fed. Cl. at 745. Understood in context, the Court of Federal Claims’ remand was implicitly predicated on agency error. Cf. Kelly, 463 F.3d at 1354–55 (rejecting the Veterans Court’s interpretation of its remand order as being premised on of- fering the veteran the option to further pursue a claim and concluding the remand was predicated on the VA’s errone- ous neglect of evidence); Davis, 475 F.3d at 1365 (distin- guishing Kelly as involving an “agency error [that], although not explicitly stated in the [] remand order, was nevertheless clear from the record”). To be sure, the Court of Federal Claims did not find in its Remand Decision that the failure to provide Mr. Craw- ford with a pre-discharge fitness determination was error. Nor did the government’s Remand Motion characterize that omission as erroneous. Indeed, the Remand Motion expressly disclaimed any error. J.A. 43; J.A. 59. But courts

3 Available at https://oralarguments.cafc.uscourts. gov/default.aspx?fl=22-1585_03092023.mp3. Case: 22-1585 Document: 25 Page: 9 Filed: 04/26/2023

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are not bound by a party’s characterizations of its conduct in determining whether there has been a concession of er- ror. It is the substance of the government’s admissions that matter. Here, the substance of the government’s admissions amounts to an implicit concession of error in failing to refer Mr. Crawford to a PEB for a fitness determination. In re- questing remand, the government repeatedly admitted Mr. Crawford did not receive a fitness determination prior to his discharge or during the pre-remand ABCMR proceed- ings. See, e.g., J.A. 43; J.A. 56. Nor did the government dispute Mr. Crawford’s allegations that, pursuant to Army Regulation 40-501, ¶ 10-25, he was entitled to—but did not receive—notification that he could request a PEB fitness determination regardless of whether his PTSD was in- curred in the line of duty. See J.A. 22–23 at ¶¶ 39–42; J.A. 27–28 at ¶¶ 65–70; see also J.A. 257 (Army Regulation 40- 501, ¶ 10-25 (Aug. 23, 2010)). Rather, the government urged that its requested remand would “address that al- leged error,” J.A. 58, and provide “the relief Mr. Crawford would likely receive if he successfully moved for judgment on the administrative record.” J.A. 44; see also J.A. 57 (urg- ing remand in lieu of merits briefing since “the likely result of such briefing (if Mr. Crawford were successful) is the very relief we are proposing now”). On remand, the ABCMR expressly found that these omissions were errone- ous and that Mr. Crawford’s medical records at the time of his discharge established he “was unfit due to PTSD and should have been medically separated from service.” J.A. 132. Thus, viewed in the context of the full evidentiary rec- ord, the government’s admissions that Mr. Crawford did not receive a fitness determination were, in fact, implicit admissions of error. In sum, we conclude the Court of Federal Claims’ Re- mand Order was predicated on agency error. There is no dispute Mr. Crawford was successful on remand while the Court of Federal Claims retained jurisdiction. Accordingly, Case: 22-1585 Document: 25 Page: 10 Filed: 04/26/2023

the Court of Federal Claims erred in concluding Mr. Craw- ford was not a prevailing party for purposes of § 2412(d)(1)(A). II The availability of attorneys’ fees and expenses under the EAJA also requires the “position of the United States” to have been not substantially justified. 28 U.S.C. § 2412(d)(1)(A). Although the Court of Federal Claims did not reach this question because it determined Mr. Craw- ford was not a prevailing party, the parties agree the issue has been adequately briefed and can be resolved on appeal. Oral Arg. at 2:40–2:54, 27:09–27:17. The government’s position is substantially justified when it is “justified to a degree that could satisfy a reason- able person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). To meet this standard, the government bears the burden to “show it has not persisted in pressing a tenuous factual or legal position.” Gavette v. Off. of Pers. Mgmt., 808 F.2d 1456, 1467 (Fed. Cir. 1986) (en banc) (internal quotation marks omitted). The “position” under review in- cludes not only litigation positions taken by the govern- ment, but also “the action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D); see also Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991) (“[W]hen assessing whether to award attorney fees . . . the entirety of the conduct of the government is to be viewed, including the action or inaction by the agency prior to litigation.”). The government has not carried its burden to show its position was substantially justified in this case. It is now undisputed the Army erred by not referring Mr. Crawford to PDES and granting medical retirement in 2011 when Mr. Crawford was honorably discharged. Nevertheless, the government resisted the correction of Mr. Crawford’s records and the award of benefits through years of unrea- sonable litigation. The government has not identified any Case: 22-1585 Document: 25 Page: 11 Filed: 04/26/2023

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non-tenuous factual or legal support for that position. In- deed, the Army’s own findings following the Court of Fed- eral Claims’ remand belie any argument to the contrary. On remand, the ABCMR determined the Army should have referred Mr. Crawford to PDES “but failed to do so without adequate explanation,” a failure it characterized as an “in- justice” and “deprivation of due process.” J.A. 132. The ABCMR further determined “there was sufficient medical evidence available to render a decision regarding [Mr. Crawford’s] fitness at the time of separation without addi- tional processing through PDES.” J.A. 132 (emphasis added). In other words, the ABCMR determined not only that it was error to deprive Mr. Crawford of medical retire- ment in 2011, but also that the government’s repeated de- mands for additional assessments and evidence were unnecessary in view of the records the government had al- ready possessed for eight years. An advisory opinion solicited by the ABCMR on re- mand denounced the government’s failures in even stronger terms. That opinion, offered by the Army Review Boards Agency’s Medical Advisor, concluded “significant harm has been committed upon Mr. Crawford through multiple errors of competency and possible errors of integ- rity in adjudicating what should have been a rather straightforward PEB/MEB case.” J.A. 253. The Medical Advisor expressed that he could not “sufficiently empha- size [his] dismay at the treatment of a Solider who has served honorably at war” and noted he had not encountered such an egregious error in his “25 years in the Army.” J.A. 253–54. As he aptly summarized: “This is absolutely not what right looks like in the Army.” J.A. 253 (internal quo- tation marks omitted). The government contends its position was nonetheless substantially justified because it has “reasonably worked to rectify potential errors in Mr. Crawford’s discharge,” in- cluding by requesting additional opinions regarding Mr. Crawford’s medical state during the initial ABCMR Case: 22-1585 Document: 25 Page: 12 Filed: 04/26/2023

proceedings. Appellee’s Br. at 51. We are not persuaded. On remand, the ABCMR found sufficient medical evidence existed as early as 2011 to grant Mr. Crawford the relief he did not receive until 2019. The government’s solicitation of unnecessary additional evidence in the interim does not demonstrate the government’s position was substantially justified. The government also contends its position was justified because it permitted Mr. Crawford to move for a correction of his records after the three-year deadline pro- vided by 10 U.S.C. § 1552(b). Weighed against the totality of the government’s conduct, that small grace does not con- stitute substantial justification. Permitting Mr. Crawford to seek correction of an error that should never have oc- curred can hardly justify the government’s unwarranted opposition throughout the remainder of those proceedings. CONCLUSION We have considered the parties’ other arguments and find them unpersuasive. For the reasons given, we reverse the Court of Federal Claims’ decision that Mr. Crawford is not entitled to attorneys’ fees and expenses under § 2412(d)(1)(A) of the EAJA. We therefore remand for the Court of Federal Claims to consider, in the first instance, the quantum of attorneys’ fees. REVERSED AND REMANDED COSTS Costs are awarded to Mr. Crawford.