Norager v. United States

1

TYLER J. NORAGER, Plaintiff, v. THE UNITED STATES, Defendant.

No. 22-135

United States Court of Federal Claims

August 8, 2024

Sean J. Powell, Faegre Drinker Biddle & Reath LLP, Chicago Illinois, with whom were Rochelle Bobroff, Esther Leibfarth and Matthew Handley, National Veterans Legal Services Program, Arlington, Virginia, of counsel, for Plaintiff.

Domenique Kirchner, Senior Trial Counsel, United States Department of Justice, Civil Division, Commercial Litigation Branch, Washington, D.C., with whom were Brian M. Boynton Principal Deputy Assistant Attorney General, Patricia McCarthy, Director, Douglas K. Mickle, Assistant Director, United States Department of Justice, and Stacey R. Fernandez, Captain, Judge Advocate, Litigation Attorney, U.S. Army Legal Services Agency, of counsel, for Defendant.

OPINION AND ORDER

EDWARD H. MEYERS, JUDGE.

I. Background

On February 9, 2022, Plaintiff, Tyler Norager, filed his complaint in this case. ECF No. 1. Norager alleged the Army wrongly denied him military disability retirement benefits and failed to refer him to the Disability Evaluation System ("DES"). Id. Issues quickly arose. Within weeks of filing the administrative record, the Government moved to remand this matter to the Army Board for Correction of Military Records ("ABCMR") because it was not clear which version of governing regulations the ABCMR applied to Norager's claims. See ECF No. 6. The ABCMR did not indicate the date of the discharge regulations that it was applying. In most cases this is not an issue because the default rule is that the regulations in effect at the time of a discharge apply to that discharge. In this case, that was 2008. But the ABCMR cited language from the regulation that was not added until 2009 without indicating that it was applying a subsequent version of the regulation. Thus, it was unclear what version of the regulation the ABCMR was applying and why. This prompted the Government's remand motion to allow the ABCMR to explain what version of the regulation it applied and why.

The Government also supported remand by identifying arguments that Norager made for the first time in this court, which this court could not hear but could be raised to the ABCMR on remand. ECF No. 9 at 1-2; see also ECF No. 13 at 9:7-10:18, 44:3-16, 46:3-47:2. There were also some arguments that were raised to the ABCMR that it did not clearly address. Id. at 38:9-40:24, 48:12-50:1. Norager opposed remand but argued that if the court did remand the case it should remand "the case for an MEB and PEB evaluation and determination consistent with the relief requested in SPC Norager's Complaint . . . ." ECF No. 8 at 17.

Following argument on the motion to remand, the court directed the parties to confer and propose instructions for a remand to the ABCMR. Both parties filed proposed remand orders. ECF No. 16. The court remanded the matter to the ABCMR with directions that borrowed "from both Norager's and the Government's proposed orders." ECF No. 17 at 2. The remand order recognized the court's concerns "regarding the ABCMR's not addressing nonfrivolous arguments Norager raised to it, the potential lack of a clear, reasoned explanation for the ABCMR's decision [i.e. which version of the regulation it applied], and the fact that Norager is making arguments here that he did not raise to the ABCMR, which this Court may not address." Id. at 1. And it directed the ABCMR to "reopen the record and provide Plaintiff with the opportunity to submit a new brief that contains all the claims, evidence, and arguments he wishes to raise to the ABCMR," to "identify the governing statutes and regulations applicable to Plaintiff's claims, and assess Plaintiff's claims under the applicable statutes and regulations," and to "provide a reasoned explanation for its conclusions," among other instructions. Id. at 2.

On remand, the ABCMR received new evidence, obtained a new medical advisory opinion, and provided a detailed opinion that granted Norager all the relief he sought. ECF No. 23 at 40.^[1] Upon the filing of the ABCMR decision, the parties submitted a status report in which the Government explained it considered this action moot. While Norager urged the court to keep the matter open because although the ABCMR recommended certain changes to his record, those changes had not yet occurred. ECF No. 24. The court scheduled a series of status reports through which the parties' views remained unchanged. See ECF Nos. 25-28. The Government then moved to dismiss the complaint for mootness. ECF No. 29. Before Norager responded, the Army implemented the ABCMR's recommended changes to his record and the parties stipulated to dismissal on October 11, 2023. ECF No. 30. Norager then filed his motion for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), on November 10, 2023. ECF No. 31.

II. Discussion

Under EAJA, prevailing parties "may recover attorney's fees and costs from the Government" in certain circumstances. Ardestani v. INS, 502 U.S. 129, 132 (1991). EAJA provides:

[A] court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States in any court having jurisdiction of that action, 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). EAJA requires the party seeking fees to submit an application for fees "within thirty days of final judgment in the action . . . ." Id. § 2412(d)(1)(B). And the application must demonstrate the party's eligibility and include "an itemized statement from any attorney . . . representing . . . the party stating the actual time expended and the rate at which fees and other expenses were computed." Id. EAJA defines "party" as "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed . . . ." Id. § 2412(d)(2)(B).

So long as the timeliness and eligibility requirements are met, a party may recover fees under EAJA if: "(1) the litigant is a prevailing party; (2) the position of the United States was not substantially justified; and (3) special circumstances do not make the award unjust." Crawford v. United States, 66 F.4th 1339, 1342 (Fed. Cir. 2023) (cleaned up). The party seeking fees "has the burden of proving he is a prevailing party." Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007) (citing RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1288 (Fed.Cir.1999)). And if the party satisfies this step, then "the burden shifts to the Government to show that its litigating position was 'substantially justified.'" Id. As a partial waiver of sovereign immunity, EAJA "must be strictly construed in favor of the United States." Ardestani, 502 U.S. at 137.

A. Norager timely filed his EAJA application.

EAJA requires parties to file a fee petition within 30 days of final judgment. 28 U.S.C. § 2412(d)(1)(B). Under EAJA, "final judgment" is "a judgment that is final and not appealable . . . ." 28 U.S.C. § 2412(d)(2)(G). "[A] judgment does not become final for EAJA purposes until . . . the time for an appeal has run." Sabo v. United States, 127 Fed.Cl. 412, 415 n.5 (2013) (citing Impresa Construzioni Geom. Domenico Garufi v. United States, 531 F.3d 1367, 1369 (Fed. Cir. 2008)). Given the parties stipulated to dismissal in this case without prejudice or explicitly preventing appeal, the court calculates the timeliness of an EAJA petition from the date on which the right to appeal expired. Accura Eng'g & Consulting Servs., Inc. v. United States, No. 22-1592C, 2024 WL 3093318, at *1 (Fed. Cl. June 21, 2024) ("Although the parties stipulated to dismissal . . . the time to move for fees still runs from the date when the time to appeal expired.") (citing Impressa, 531 F.3d at 1371 and Bly v. Shulkin, 883 F.3d 1374, 1376-77 (Fed. Cir. 2018)). Here, the parties filed their stipulation on October 11, 2023, and the court dismissed Norager's complaint without prejudice the same day. See ECF No. 30. The time to appeal expired on December 10, 2023 (60 days after stipulation of dismissal), meaning EAJA's 30-day clock began to run on December 11, 2023. Fed. R. App. P. 4(a)(1)(B). Therefore, the last day Norager could have filed his EAJA application was January 10, 2024. 28 U.S.C. § 2412(d)(1)(B).

Norager filed his application on November 10, 2023. ECF No. 31. If anything, Norager filed his EAJA petition too early. That is not problematic, however, because "courts generally treat as timely EAJA applications filed even before a judgment becomes final." Bly, 883 F.3d at 1377 n.1 (citing Brewer v. Am. Battle Monuments Comm'n, 814 F.2d 1564, 1569-70 (Fed. Cir. 1987)). Given these precedents coupled with the fact that the Government does not challenge Norager's filing on timeliness grounds, the court concludes that the early filing in this case does not impact Norager's eligibility. And now that the parties' time to appeal has expired, the court concludes that Norager's application is timely.

B. Norager sufficiently established his eligibility as a party under the statute.

The court turns next to whether Norager qualifies as a "party" under EAJA. As relevant here, EAJA defines a "party" as "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed . . . ." 28 U.S.C. § 2412(d)(2)(B). Norager includes a declaration in which he states he satisfies this requirement. ECF No. 31-2 at 180.

Although most cases on this issue involve corporate or other legal entities, this court has addressed the issue as to individuals as well. The individual plaintiff cases (i.e those brought by natural persons...