Loomis v. United States

74 Fed. Cl. 350, 2006 U.S. Claims LEXIS 394, 2006 WL 3734165
CourtUnited States Court of Federal Claims
DecidedDecember 15, 2006
DocketNo. 03-1653C
StatusPublished
Cited by28 cases

This text of 74 Fed. Cl. 350 (Loomis 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.

Bluebook
Loomis v. United States, 74 Fed. Cl. 350, 2006 U.S. Claims LEXIS 394, 2006 WL 3734165 (uscfc 2006).

Opinion

OPINION

BRUGGINK, Judge.

This is a military pay case in which plaintiff sought this court’s review of decisions of the Army Board for the Correction of Military Records (“ABCMR”). Plaintiff had been discharged for homosexual conduct and conduct unbecoming an officer despite his request for the suspension of the Army’s elimination proceedings against him. A suspension would have enabled him to accrue the 20 years of active service credit required for retirement. Before the ABCMR, he sought to set aside the discharge and the Under Other Than Honorable Conditions (“UOTHC”) characterization of his discharge. The two decisions of the ABCMR upgraded plaintiffs discharge to “General, Under Honorable Conditions (‘GUHC’),” but denied an upward adjustment of his active federal service credit which would have permitted him to retire with twenty years of active federal service.

Before this court, plaintiff sought review of the decisions of the ABCMR. We granted plaintiffs motion for summary judgment in part, holding that plaintiff had a right to suspension of the Army Board of Inquiry (“BOI”) elimination proceedings during the consideration of his request for retirement in lieu of elimination. Loomis v. United States, 68 Fed.Cl. 503 (2005). We also denied plaintiffs motion in part, specifically rejecting his argument that the military’s sodomy prohibition, article 125 of the Uniform Code of Military Justice, and the Army’s “Don’t Ask, Don’t Tell” (“DADT”) policy should be held unconstitutional. Id. We awarded plaintiff a judgment in the amount of $241,801.00 in retirement pay with further retirement pay and benefits on a continuing basis. Id.

Pending now is plaintiffs motion for attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2000). Plaintiff claims that he is entitled to an award of attorneys’ fees and costs in the amount of $23,125.00. In support of his motion, plaintiff argues that: 1) he is a prevailing party for purposes of EAJA because plaintiff was awarded the very remedy he sought in bringing the lawsuit, namely, a finding that he had a right to have his elimination proceedings suspended pending the processing of his request for retirement in lieu of elimination; 2) the government’s position on the suspension right was not substantially justified because the court found no support in the record for the government’s position with respect to the suspension issue; and 3) the Army’s position on the UOTHC characterization of plaintiffs discharge was not substantially justified because the ABCMR overturned it in its 2004 decision.

The government concedes that plaintiff is the prevailing party. However, the government argues that: 1) plaintiff is not eligible for an EAJA award because there is no record that he in fact incurred attorneys’ fees himself and because he failed to provide contemporaneous evidence of the “status”1 and the usual billing rates of his attorneys; 2) the [352]*352government’s position as a whole had a reasonable basis in fact and law; and 3) even if its position was not substantially justified, the award requested by plaintiff is excessive considering the limited degree of success plaintiff achieved.

The matter is fully briefed. Oral argument is deemed unnecessary. For the reasons set out below, we grant plaintiffs motion and award attorneys’ fees in the amount of $23,125.00.

BACKGROUND

The facts surrounding this case are set out in detail in this court’s November 7, 2005 opinion. Loomis, 68 Fed.Cl. 503. A summary is given below.

On August 19, 1996, elimination proceedings against plaintiff, a former senior officer on active duty in the Army, were initiated based on the Army’s DADT policy. At a BOI hearing held on December 16, 1996, it was recommended that plaintiff be discharged for homosexual conduct and conduct unbecoming an officer. Because of a finding that plaintiffs homosexual acts involved force, coercion or intimidation, an aggravating factor under Army regulations, the BOI also recommended that plaintiffs discharge be characterized as UOTHC.

Under Army Regulations (“AR”) 600-8-24, para. 4-24, a soldier may request retirement once elimination proceedings are commenced if the request is properly styled as one for “retirement in lieu of elimination.” Plaintiff requested retirement in various forms during the ehmination proceedings. He first requested an early retirement in lieu of separation which allows soldiers to retire with less than 20 years of active service credit. When the request was denied, plaintiff then requested a voluntary retirement. This request was also returned without action due to ineligibility. Lastly, plaintiff requested retirement in lieu of elimination on May 12, 1997, with an effective date of July 23, 1997. This request was denied 30 days later by the chief of the Army Reserve on June 12, 1997.

Upon discharge, plaintiff filed an appeal of his elimination to the ABCMR on May 14, 1999. The board found that plaintiffs misconduct was sufficient to justify elimination. The board also upheld the Army’s denial of plaintiffs May 1997 request for retirement in lieu of elimination. The board, however, upgraded plaintiffs discharge to GUHC due to a lack of aggravating factors. Plaintiff had argued that Army regulations required a 30-day suspension of his ehmination proceedings until a decision was reached on the request for retirement. The board, however, held that the relevant regulations could not be used to allow plaintiff to accrue additional active duty service credit, and that, in any event, any error was harmless.

Upon plaintiffs second ABCMR appeal, the board denied plaintiffs request for 11 days of active service credit. The additional active service credit, according to plaintiff, would have made him eligible for a regular retirement prior to his separation from the Army. The board concluded that documents supplied by plaintiff in support of plaintiffs claim were insufficient to demonstrate his entitlement for additional service credit.

On November 7, 2005, we granted in part plaintiffs motion for judgment upon the administrative record with respect to his claim of a right to suspension of his elimination proceedings before the BOI pending consideration of his request for retirement in lieu of elimination. In other respects, plaintiffs motion for judgment on the record was denied. We specifically rejected plaintiffs argument that the characterization of his discharge should be set aside. We held that the military’s sodomy prohibition, article 125 of the Uniform Code of Military Justice, and the Army’s DADT policy do not violate the Constitution of the United States on substantive due process or equal protection grounds. Judgment was entered entitling plaintiff to $241,801.00 in retirement pay through February 28, 2006, and to retirement pay and benefits thereafter on a continuing basis.

In September 2006, plaintiff filed the pending motion for attorneys’ fees. As required under EAJA, plaintiff supplied with his application supporting documentation itemizing services provided, number of hours spent on each of the services and the rate of fees charged. In its response, defendant intimated that plaintiff did not pay at least a portion [353]*353of the fees requested. In reply, plaintiff provided an affidavit responding to defendant’s allegation and further detailing that attorneys David P. Sheldon, Philip Sundel, and Raymond J.

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Bluebook (online)
74 Fed. Cl. 350, 2006 U.S. Claims LEXIS 394, 2006 WL 3734165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loomis-v-united-states-uscfc-2006.