Howell v. United States

Federal Claims

Howell v. United States

CourtUnited States Court of Federal Claims

DecidedFebruary 9, 2023

Docket20-735

StatusUnpublished

This text of Howell v. United States (Howell v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howell v. United States, (uscfc 2023).

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In the United States Court of Federal Claims No. 20-735C (Filed: February 9, 2023) NOT FOR PUBLICATION *************************************** STEPHEN P. HOWELL, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *************************************** 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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In the United States Court of Federal Claims No. 20-735C (Filed: February 9, 2023) NOT FOR PUBLICATION *************************************** STEPHEN P. HOWELL, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * *************************************** 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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