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. CampbellSmith.

______________________ 

Decided: April 26, 2023 

______________________ 

CHRISTIAN CURRAN, Crowell & Moring, LLP, Washington, DC, argued for plaintiff-appellant. Also represented 

by STEPHEN JOHN MCBRADY, CHARLES BAEK; ROCHELLE 

BOBROFF, National Veterans Legal Services Program, Arlington, VA. 

 WILLIAM PORTER RAYEL, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also 

represented by BRIAN M. BOYNTON, PATRICIA M.

MCCARTHY, DOUGLAS K. MICKLE. 

 ______________________ 

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2 CRAWFORD v. US

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 entitled 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 medical 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 counseled regarding his rights to request a fitness determination by a Physical Evaluation Board (PEB) of the Army’s 

Physical Disability Evaluation System (PDES), a prerequisite 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 determination or medical retirement. In 2015, Mr. Crawford 

sought correction of his records and retroactive benefits before 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 

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CRAWFORD v. US 3

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 referred 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 failure to meet medical retention standards, Dr. O’Donnell recommended 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 original 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 (Remand Motion). J.A. 41–46; J.A. 56–60. The Remand Motion argued Mr. Crawford’s claims for medical retirement 

should not proceed until the ABCMR conducted the predicate fitness determination, which the government conceded 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 fitness determination could obviate the need for further proceedings 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 Decision). Accordingly, it granted the motion and remanded for 

the ABCMR to “determine and explain whether Mr. Crawford was unfit for duty at the time of his separation . . . 

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4 CRAWFORD v. US

based upon the existing ABCMR record and any other documentation received by the ABCMR on remand.” J.A. 83–

84.

On remand, the ABCMR found Mr. Crawford was entitled 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 predicated on agency error and that he was therefore a prevailing party under the statute. The Court of Federal Claims 

denied the motion, reasoning the remand was based on judicial 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 jurisdiction 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 “substantially justified”; and (3) special circumstances do not 

make the award unjust. Because we conclude these conditions are satisfied,1 we reverse. 

1 The government bears the burden to establish the 

existence of special circumstances making the award unjust, 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. 

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CRAWFORD v. US 5

I 

To be a prevailing party under § 2412(d)(1)(A), a plaintiff 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 prevailing party status. The Supreme Court has made clear, 

for example, that remands to district courts do not constitute 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 administrative 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 constitute the requisite success on the merits.” Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed. Cir. 2006). 

Accordingly, “we have developed tests [to determine] 

when court-to-administrative agency remands confer prevailing 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. Former 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 prevailing 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 

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6 CRAWFORD v. US

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 concluding Mr. Crawford was not a prevailing party under

§ 2412(d)(1)(A). The Remand Decision provided “two principal reasons” for remand:

[1] The ABCMR has not yet considered the findings of Dr. Kathryn R. O’Donnell. . . . As [the government] notes, it is possible once the ABCMR has 

considered this new evidence, some or all of plaintiff’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 litigation 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 decide, 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 standard 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’ determination that the government did not concede error in its Remand 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 government did not concede error must be reversed under either 

standard of review. 

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CRAWFORD v. US 7

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 determination he was previously denied was “rooted in concerns 

for judicial efficiency” rather than agency error. Fees Decision, 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-remand 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 National 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. Crawford’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”).

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8 CRAWFORD v. US

This case is therefore distinguishable from prior decisions in which we have held remands based “solely” on judicial efficiency do not confer prevailing party status. See 

Gurley v. Peake, 528 F.3d 1322, 1324 (Fed. Cir. 2008) (holding 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 remand 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 offering the veteran the option to further pursue a claim and 

concluding the remand was predicated on the VA’s erroneous neglect of evidence); Davis, 475 F.3d at 1365 (distinguishing 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. Crawford 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. 

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CRAWFORD v. US 9

are not bound by a party’s characterizations of its conduct

in determining whether there has been a concession of error. 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 requesting remand, the government repeatedly admitted Mr. 

Crawford did not receive a fitness determination prior to 

his discharge or during the pre-remand ABCMR proceedings. 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 incurred 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 alleged 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 (urging 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 erroneous 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 record, 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’ Remand 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, 

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10 CRAWFORD v. US

the Court of Federal Claims erred in concluding Mr. Crawford 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. Crawford 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 reasonable 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 includes not only litigation positions taken by the government, 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 unreasonable litigation. The government has not identified any 

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CRAWFORD v. US 11

non-tenuous factual or legal support for that position. Indeed, the Army’s own findings following the Court of Federal 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 “injustice” 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 additional 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 retirement in 2011, but also that the government’s repeated demands for additional assessments and evidence were

unnecessary in view of the records the government had already possessed for eight years.

An advisory opinion solicited by the ABCMR on remand 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 integrity in adjudicating what should have been a rather 

straightforward PEB/MEB case.” J.A. 253. The Medical 

Advisor expressed that he could not “sufficiently emphasize [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 quotation 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,” including by requesting additional opinions regarding Mr. 

Crawford’s medical state during the initial ABCMR 

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12 CRAWFORD v. US

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 provided by 10 U.S.C. § 1552(b). Weighed against the totality 

of the government’s conduct, that small grace does not constitute substantial justification. Permitting Mr. Crawford 

to seek correction of an error that should never have occurred 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.

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