In the United States Court of Federal Claims

No. 16–1036C

(Filed: June 21, 2018)

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Equal Access to Justice Act ; 28 U.S.C. § 

2412(d); Attorney’s Fees; Prevailing 

Party on Remand; Substantially Justified; 

Judicial Imprimatur.

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JOHNATHAN D. SILVA, *

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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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John A. Wickham, Law Office of John Adams Wickham, Evergreen, Colorado, for 

Plaintiff.

Delisa M. Sanchez, with whom were Chad A. Readler, Acting Assistant Attorney General, 

Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., as well 

as LCDR Adam B. Yost, Office of the Judge Advocate General, U.S. Navy, for Defendant.

OPINION AND ORDER

WHEELER, Judge.

On December 28, 2017, counsel for Plaintiff Johnathan D. Silva filed a motion for 

attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for

fees and expenses incurred in proceedings regarding his discharge from the United States 

Navy. The prevailing party in an EAJA action is entitled to reasonable attorney’s fees. 28 

U.S.C. § 2412(d)(1)(A), (B). In this case, both parties agreed to remand the case to the 

Board for Correction of Naval Records (“BCNR”) where Mr. Silva was ultimately afforded 

all the relief he sought. Mr. Silva then voluntarily dismissed the case, but the parties are

unable to agree on whether Mr. Silva is entitled to an award of attorney’s fees.
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Mr. Silva requests attorney’s fees in the amount of $33,937.56. For the reasons set 

forth below, Mr. Silva’s motion for attorney’s fees is DENIED.

Factual and Procedural Background

On March 10, 2004, Mr. Silva enlisted in the United States Naval Reserve under the 

Delayed Entry/Enlistment Program (“DEP”). Compl. ¶ 1. While Mr. Silva was in the 

DEP, he also enlisted in the Individual Ready Reserve. Id. at ¶ 5. Mr. Silva commenced 

active duty on September 29, 2004. Id. at ¶ 1.

Mr. Silva served without disciplinary incident until February 13, 2008, when he 

received nonjudicial punishment (“NJP”) for three offenses: (1) driving under the influence 

on December 1, 2007; (2) a two-hour unauthorized absence on December 28, 2007; and 

(3) driving under the influence on December 28, 2007. Id. ¶ 12. Then, in March 2008, Mr. 

Silva completed substance abuse treatment and his performance recovered. Id. at ¶¶ 13–

14. However, on August 13, 2010, Mr. Silva was suspected of being under the influence 

of alcohol and drunk on duty. Id. at ¶ 15; BCNR Review ¶ 4(e), Dkt. No. 24. Subsequently, 

he was medically evaluated for fitness for duty. Compl. ¶ 15. On August 26, 2010, Mr. 

Silva, with advice of counsel, refused NJP in order to contest the charges. Id. at ¶¶ 28–29.

On August 27, 2010, the Navy provided notice of and initiated administrative discharge 

proceedings against him. Id. at ¶ 30.

Mr. Silva contested the charges in his rebuttal statement and requested an 

administrative board hearing, claiming he met the six-year threshold of active military 

service necessary to be granted such a hearing. Id. at ¶¶ 32–33. The Navy denied his 

request concluding he was one month short of the threshold because the Navy did not count 

Mr. Silva’s time in the DEP as active military service. Id. at ¶ 34; BCNR Review ¶ 4(f).

On October 5, 2010, Mr. Silva received a General Discharge (Under Honorable 

Conditions) for Misconduct (Serious Offense) from the Navy. Compl. ¶¶ 34, 37.

In 2011, Mr. Silva petitioned the Naval Discharge Review Board (“NDRB”) for his 

discharge, alleging, among other things, that the denial of a hearing under the

administrative board was improper conduct. Id. at ¶ 38. On November 7, 2012, the NDRB 

denied the petition. Id. at ¶ 39. The NDRB determined that Mr. Silva’s time in the DEP 

was not creditable for purposes of pay and thus, not creditable for determining the 

eligibility to request an administrative board. Id. The NDRB also stated that Mr. Silva’s 

time in the DEP constituted service in the “Inactive Standby Reserve,” rather than the 

“Ready Reserve.” Id. at ¶ 8.

In 2014, Mr. Silva petitioned the BCNR to correct his naval record by setting aside 

his NJP and upgrading his discharge. Compl. ¶ 40; Notice, Attach. 1, Oct. 18, 2016, Dkt. 

No. 5. On June 22, 2015, the BCNR denied his application finding that the evidence was 
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“insufficient to establish the existence of probable material error or injustice.” Notice, 

Attach. 1.

On August 22, 2016, Mr. Silva filed a complaint in this Court requesting that the 

Court review the BCNR decision and declare it “arbitrary and capricious, and abuse of 

discretion, and contrary to law.” Compl. at 21. Mr. Silva further asked that: (1) the Court 

void his discharge for misconduct and retroactively restore him to active duty with back 

pay; (2) the Government issue Mr. Silva an Honorable discharge; and (3) the Government 

expunge all records related to the 2010 separation proceedings and discharge. Id.

On November 3, 2016, the parties voluntarily filed a joint motion to remand the case 

to the BCNR. Joint Mot. to Remand, Dkt. No. 8. The purpose of the remand was to seek

guidance from the BCNR regarding the policy behind the NDRB’s finding that Mr. Silva’s 

time in the DEP was not considered creditable towards the six year threshold, as well as 

regarding his DEP time constituting service under the Inactive Standby Reserve, as 

opposed to the Ready Reserve. Joint Mot. to Remand at 3–4. The Court granted the motion 

to remand. Order Granting Mot. to Remand, Dkt. No. 9.

On April 28, 2017, the Government filed a motion to stay the case for an additional 

six months to allow the Navy and BCNR to finish reviewing the matter. Def.’s Mot. to 

Continue Stay, Dkt. No. 15. The Court granted the motion to stay but advised the 

Government that another extension was unlikely to be granted and that the stay would end 

on November 8, 2017. Order, Dkt. No. 16.

On November 8, 2017, the BCNR issued its remand decision, favoring Mr. Silva 

and satisfying all of his initial criteria in the complaint before the Court. BCNR Review at 

4. As both parties concede, the Navy leadership reversed its policy and credited service 

time spent in the DEP toward the minimum six year requirement. Pl.’s Mot. at 7, Dkt. No. 

26; Def.’s Resp. at 13, Dkt. No. 32. The Navy’s Assistant General Counsel for Manpower 

& Reserve Affairs issued an advisory opinion stating that “the period served in [the DEP] 

counts towards fulfillment of the MSO.” Pl.’s Mot., Attach. C, at 1–2 (quoting DoDI 

1304.25, Encl. 3, ¶ 4, Oct. 31, 2013). Additionally, the advisory opinion stated that time 

spent in the DEP was considered time in the Individual Ready Reserve, not the Inactive 

Standby Reserve. Id. at 2. Content with the BCNR decision after remand, Mr. Silva filed 

for voluntary dismissal on November, 30, 2017. Notice of Voluntary Dismissal, Dkt. No. 

25.

On December 28, 2017, counsel for Mr. Silva filed a motion for attorney’s fees 

under the Equal Access to Justice Act. Pl.’s Mot. at 1. In his motion, counsel for Mr. Silva 

originally asked for attorney’s fees in the amount of $26,184.04. Id. This amount was

based on billing records of 126 hours at an hourly rate adjusted for cost-of-living expenses

and inflation to $204.04, and an added expense of $475. Id. at 18–19.
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The Government disagrees with Mr. Silva’s entitlement to attorney’s fees under 

EAJA, claiming he is not a prevailing party and that the Government’s position was

substantially justified. Def.’s Resp. at 1. Alternatively, if the Court finds that an EAJA 

award is appropriate, the Government asserts that Mr. Silva is not entitled to attorney’s

fees higher than the statutory cap, after taking cost of living adjustments into account, and 

only for work performed by his counsel before this Court. Id. Mr. Silva opposes the 

Government’s position and, in his reply, amends his request for attorney’s fees in the 

amount of $33,937.56 to account for the hours spent on the reply. Pl.’s Reply at 9, Dkt. 

No. 41. The new attorney’s fee award figure is based on a total of 164 attorney hours billed 

at an hourly rate of $204.04, with an additional expense of $475. Id.

Discussion

I. Recovery Under EAJA

EAJA is a partial waiver of sovereign immunity because it renders the United States 

liable for attorney’s fees for which it would otherwise not be liable. Ardestanti v. 

Immigration & Naturalization Serv., 502 U.S. 129, 137 (1991). As with any waiver of 

sovereign immunity, EAJA must be “strictly construed in favor of the United States.” Id.

Under EAJA, an award of reasonable attorney’s fees is granted to the prevailing party in 

an action by or against the United States, provided that certain criteria are met. 28 U.S.C. 

§ 2412(d)(1)(A). For a party to be eligible for attorney’s fees from the United States, five 

criteria must be satisfied: 

(1) the party must have been a “prevailing party” in a suit against the United 

States; (2) the government’s position must not have been “substantially 

justified;” (3) there cannot be any “special circumstances [that] make an 

award unjust;” (4) any fee application must be submitted to the court within 

thirty days of final judgment in the action and must also be supported by an 

itemized statement; and (5) a qualifying party must, if a corporation or other 

organization, have not had more than $7,000,000 in net worth and 500 

employees at the time the adversarial adjudication was initiated. 

28 U.S.C. § 2412(d)(1), (2); see Dalles Irrigation Dist. v. United States, 91 Fed. Cl. 689, 

696 (2010); Comm’r, Immigration & Naturalization Service v. Jean, 496 U.S. 154, 158 

(1990).

“The EAJA applicant has the burden of establishing that he is a prevailing party.” 

Hughett v. United States, 110 Fed. Cl. 680, 685 (2013) (quoting Davis v. Nicholson, 475 

F.3d 1360, 1366 (Fed. Cir. 2007)). Once established, the Government then bears the 

burden of proving that its position was substantially justified. Doty v. United States, 71 

F.3d 384, 385 (Fed. Cir. 1995).
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Here, the parties disagree about whether Mr. Silva is a prevailing party and whether 

the Government’s position was substantially justified. The Court considers the standards 

for decision and review appropriate for both of these subsections below.

A. Prevailing Party

For a party to prevail, there must be some relief on the merits of the claim in order 

to create a “material alteration of the [parties’] legal relationship.” Buckhannon Bd. & 

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603–04 (2001).

Further, the material alteration of the legal relationship of the parties must be achieved 

through the “necessary judicial imprimatur on the change.” Id. at 605. Two examples of 

an alteration in the legal relationship between the parties include an enforceable judgment 

on the merits and a court-ordered consent decree. Hughett, 110 Fed. Cl. at 686 (citing 

Buckhannon, 532 U.S. at 601, 603, 605–06).

When a case is remanded to an administrative agency, the remand may confer 

prevailing party status, but not every remand “constitutes a grant of relief on the merits.” 

Former Emp.’s of Motorola Ceramic Prod.’s v. United States, 336 F.3d 1360, 1366 (2003). 

When the remand is required because of alleged agency error, the EAJA applicant qualifies 

as a prevailing party. Id. However, the EAJA applicant does not receive prevailing party 

status “if the court issuing the remand order does not identify or acknowledge an error by 

the administrative agency.” Small v. United States, 130 Fed. Cl. 88, 103 (2016) (quoting 

Hughett, 110 Fed. Cl. at 687). “Whether or not a remand was based on an agency error is 

not limited to the four corners of the remand order.” Gurley v. Peake, M.D., 528 F.3d 

1322, 1328 (Fed. Cir. 2008). Thus, when a remand order does not expressly state that it 

was based on administrative error, the EAJA applicant has the burden to prove, based on 

the evidentiary record, that the remand was “predicated on administrative error even though 

the remand order does not say so.” Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 

2007).

A voluntary dismissal after remand does not automatically preclude a finding of 

prevailing party status for the plaintiff. Martinez v. United States, 94 Fed. Cl. 176, 183 

(2016). As long as there has been “some preceding judicial action which constitutes a 

judicial imprimatur on a material alteration of the legal relationship of the parties,” the 

plaintiff may still prevail. Id. (quoting Buckhannon, 532 U.S. at 605). 

In order to recover attorney’s fees under EAJA, Mr. Silva must establish that he is 

a prevailing party. More specifically, because the case was remanded to the BCNR, Mr. 

Silva must prove that the remand was due to administrative error. See Nicholson, 475 F.3d 

1366. Mr. Silva makes three arguments in support of being a prevailing party. He argues 

that the Court’s remand order: (1) was based on agency error, (2) “sufficiently changed the 

relationship between the parties,” and (3) constituted judicial relief. Pl.’s Mot. at 12–14. 
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1. Agency Error

In this case, the Court did not identify or acknowledge an error by the agency in the 

remand order. Remand Order (“The Court agrees that remand to the BCNR is appropriate 

and would promote the most efficient resolution of this case.”) In order to establish 

prevailing party status, Mr. Silva must show that the remand was predicated on an 

administrative error through the evidentiary record. Nicholson, 475 F.3d at 1366. Mr. 

Silva argues that the remand, based on the entirety of the record, is predicated upon agency 

error because the BCNR decision was arbitrary by violating its mandate under 10 U.S.C. § 

1552. Pl.’s Mot. at 13. He claims that the BCNR failed to “determine or ignored the true 

nature of the issue, or if the BCNR did evaluate the issue, it failed to provide a sufficiently 

detailed and reasoned decision.” Id. Ultimately, he contends, the remand order was based 

upon fixing the “virtually useless” BCNR decision on judicial review. Id.

The Government argues that the joint remand was not premised upon agency error 

because the NDRB and BCNR decisions were based on present policy at the time of their 

respective decisions, which changed during the pendency of the BCNR remand. Def.’s

Resp. at 13–14. The Government points out that Mr. Silva conceded that he was aware of 

the change in Navy policy between the issuance of the NDRB and BCNR first decision and 

the second BCNR decision after remand. Def.’s Resp. at 13; Pl.’s Mot. at 7 (“[T]he Navy 

leadership reversed its policy to now credit a Navy member’s uninterrupted service in the 

DEP towards the minimum six years service required for entitlement to an administrative 

separation board.”) The Government states further that “on remand, the BCNR did not 

‘correct’ any errors in Mr. Silva’s military record. Rather, it applied the Navy’s newly 

revised policy....” Def.’s Resp. at 14.

Additionally, with regard to the NDRB’s mistaken mention that Mr. Silva had been 

enlisted in the Inactive Standby Reserve, instead of the Individual Ready Reserve, the 

Government asserts that the incorrect statement had no bearing on whether Mr. Silva’s time 

in the DEP should have been credited to the threshold six years. Id. at 15. Rather, “[t]he 

NDRB made its decision based on the fact that the Navy’s policy—at the time it considered 

Mr. Silva’s petition—was that time [spent] in DEP was not creditable... not based on 

whether a service member was in the Inactive Standby Reserve or in the Individual Ready 

Reserve.” Id. (citing Notice, Attach. 1, 26). Although the Government made a mistake, it 

had no impact on the merits of the case and does not rise to the level of an administrative 

error.

“[R]emands that do not address administrative error but which merely provide 

another opportunity for adjudication are insufficient to convey prevailing party status on a 

plaintiff.” Hughett, 110 Fed. Cl. at 68 (finding that a former service-member was not a 

prevailing party under EAJA after a remand not based on administrative error and a 

voluntary dismissal occurred). In this case, the remand does not address administrative 

error explicitly or implicitly. The remand to the BCNR, therefore, did not convey 
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prevailing party status on Mr. Silva. Without such status, Mr. Silva may not be granted 

attorney’s fees under EAJA. Accordingly, the motion for attorney’s fees must be denied.

2. Altered Legal Relationship and Judicial Imprimatur

Mr. Silva also argues that the remand order altered the legal relationship between 

the parties because it instructed the BCNR to reconsider Mr. Silva’s claim and to clarify 

prior inconsistencies, specifically the NDRB’s conclusion that Mr. Silva was enlisted into 

the Standby Reserve even though his enlistment document reflected otherwise. Pl.’s Mot. 

at 12. In order to prevail, a party must show that the material alteration of a legal 

relationship between parties was achieved through the “necessary judicial imprimatur on 

the change.” Buckhannon, 532 U.S. at 605. “A party must have received a judicial 

imprimatur tantamount to a judgment in favor of that party on the merits of the original 

claim.” Akers v. Nicholson, 409 F.3d 1356, 1359 (Fed. Cir. 2005) (citing Buckhannon, 

532 U.S. at 605). Additionally, the Supreme Court rejects the “catalyst theory” holding 

that a plaintiff lacks the necessary judicial imprimatur, and does not prevail “if it achieves 

the desired result because the lawsuit brought about a voluntary change in the defendant’s 

conduct.” Buckhannon, 532 U.S. at 601, 605.

Mr. Silva contends that judicial imprimatur is provided in the remand because the 

BCNR was not free to ignore the Court’s instructions to determine whether Mr. Silva’s 

time in the DEP is creditable to his total military service time. Pl.’s Mot. at 12–13. 

Additionally, Mr. Silva states that the Court’s November 8, 2017 deadline changed the 

Government’s otherwise voluntary request for remand into a judicially-imposed legal 

relationship between the parties. Id. at 14.

The Court’s remand is not the necessary judicial imprimatur to alter the legal 

relationship between the parties. Mr. Silva and the Government voluntarily filed a joint 

motion to remand the case to the BCNR to receive guidance regarding whether Mr. Silva’s 

time in the DEP should be considered creditable to his active military service. Joint Mot. 

to Remand at 3–4. The instructions that the Court issued with the remand order were only 

a duplicate of the instructions that the parties already laid out in their joint motion to 

remand. Id. at 4; see also Order Granting Mot. to Remand. Since judicial imprimatur was 

not achieved through the Court’s instructions, there is not an altered legal relationship 

between the parties.

Mr. Silva also contends that the remand order constitutes judicial relief because had 

the case not been remanded, “the remedy would have included a remand anyway.” Pl.’s 

Mot. at 14. However, as previously noted, the Supreme Court has held that although 

achieving the desired result, the plaintiff still lacks the necessary judicial imprimatur if the 

lawsuit brought about a voluntary change in the defendant’s conduct. Buckhannon, 532 

U.S. at 601, 605. The joint motion to remand was a voluntary change in this case; therefore, 

judicial imprimatur was absent.
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Mr. Silva did not achieve prevailing party status because there was no material 

alteration of the parties’ legal relationship. As such, Mr. Silva may not be granted 

attorney’s fees under EAJA.

B. Substantially Justified

Although the Court has found that Mr. Silva does not secure prevailing party status 

under EAJA, the Court will still address whether the Government’s position was 

substantially justified. The term “substantially justified” means that the Government’s 

position need not be correct or “justified to a high degree” but only “justified in substance 

or in the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce 

v. Underwood, 487 U.S. 552, 565 (1988) (internal quotations omitted). The Government 

bears the burden of proof when raising the defense that it was substantially justified. Doty, 

71 F.3d at 385. In assessing whether the Government’s position was substantially justified, 

“the entirety of the conduct of the government is to be viewed, including the action or 

inaction by the agency prior to litigation.” Chiu v. United States, 948 F.2d 711, 715 (Fed. 

Cir. 1991).

The Government posits three arguments in support of its proposition that its position

was substantially justified. First, the Government points out that its pre-litigation conduct 

was reasonable because Mr. Silva’s petition in the first instance was untimely. Def.’s Mot. 

at 20. Second, the Government contends its pre-litigation actions were in accordance with 

the regulations and policies in effect at the time that the NDRB and BCNR denied Mr. 

Silva’s petition. Id. at 21–22. Finally, the Government argues that its position in litigation 

was also substantially justified because the Government has responded to Mr. Silva’s 

claims in a “reasonable and legally justifiable manner.” Id. at 22.

The Government points out that Mr. Silva’s petition to the BCNR was untimely and

could have been denied on that basis alone. Notice, Attach. 1, 2 (“Although your 

application was not filed in a timely manner, the Board found it in the interest of justice to 

waive the statute of limitations and consider your application on the merits.”) Additionally, 

Mr. Silva’s petition was denied because of prevailing policies at the time it was submitted, 

which Mr. Silva acknowledged in his motion. Pl.’s Mot. at 7. Mr. Silva’s contention, that 

the BCNR decision on June 22, 2015 provides no evidence to justify its decision in denying 

Mr. Silva the right to a separation board, therefore, is irrelevant.

All the actions taken by the Government prior to litigation were taken in accordance 

with the regulations and policies in effect at the time. Therefore, Mr. Silva’s argument that 

the Government’s inconsequential mistake is evidence that its position is not substantially 

justified and his assertion that the Navy’s DEP policy was settled law are without merit.

The BCNR and NDRB denied Mr. Silva’s petition because of the implemented policy at 

the time those decisions were made, which, again, Mr. Silva acknowledges. Id. at 7; see 

also Def.’s Resp. at 20–21.
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During litigation, the Government acted in a reasonable and legally justifiable 

manner. Mr. Silva acknowledges the Government’s reasonableness during litigation in his 

motion: “[G]overnment counsel’s position during litigation has been reasonable for 

diligent efforts to create a process for resolving the plaintiff’s claims.” Pl.’s Mot. at 17, 

n.5.

Mr. Silva did not establish that he is a prevailing party, and the Government has met 

its burden to show that its conduct was substantially justified. Mr. Silva, therefore, may 

not recover attorney’s fees under EAJA.

Conclusion

For the foregoing reasons, Plaintiff’s motion for attorney’s fees is DENIED. The 

Clerk is directed to enter final judgment in favor of Defendant. No costs. 

IT IS SO ORDERED.

s/ Thomas C. Wheeler

THOMAS C. WHEELER

Judge