# In the United States Court of Federal Claims

No. 06-827 C Filed: May 30, 2014

TO BE PUBLISHED

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* FRANK J. PROCHAZKA, *

* Plaintiff, *

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v. *

* THE UNITED STATES, *

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Defendant. *

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Thomas Andrew Coulter , LeClair Ryan, P.C., Richmond, Vi rginia, Counsel for Plaintiff.

Devin Andrew Wolak , United States Department of Jus tice, Civil Division, Washington, D.C.,

Counsel for Defendant.

Joseph Robert Berger , Dickstein Shapiro, LLP, Washi ngton, D.C., Counsel for National Veterans Legal Service Program, Washington, D.C., Amicus Curiae In Support of Plaintiff Re: Liability and Damages.

MEMORANDUM OPINION AND FINAL ORDE R REGARDING PLAINTIFF’S CLAIM FOR ATTORNEY FEES, EXPENSES, AND COSTS UNDER THE EQUAL ACCE SS TO JUSTICE ACT

BRADEN, Judge.

Congress enacted the Equal Access to Justi ce Act (“EAJA”), 28 U.S.C. § 2412, to enable a plaintiff, like Captain Frank J. Prochazka (“ Captain Prochazka”), to obtain competent legal counsel to pursue monetary claims against the Unite d States, in complex cases , such as this one. Of course, the statutorily defi ned fee structure does not come close to compensating counsel,

such as Thomas A. Coulter or his firm LeCl air Ryan, P.C., for the market value of their professional services. Therefore, the court woul d be remiss if it did not express appreciation to

Plaintiff’s counsel and the law firm of LeClair Ryan, P.C. for thei r professional services in this

matter. Attorney Fees, Expenses, and Costs; Back Pay, Under the Military Pay Act, 37 U.S.C. § 204; Correction of Military Records; Equal Access to Justice Act, 28 U.S.C. § 2412.2 I. RELEVANT FACTS.

On June 30, 2002, Captain Prochazka, a member of the Judge Advocate General’s Corps (“JAGC”), with a flawless record of service, was “involuntarily retire d” by the United States Navy (“Navy”), based on an internal determ ination that his “service creditable” and consequential “mandatory retirement date” pr ior to the enactment of the Defense Officer Personnel Management Act (“DOPMA”) required that he be denied five years of active duty pay and subject to a substantial reduction of pension benefits. This decision was based on the Navy’s erroneous determination that no method existed, pr ior to DOPMA, to determ ine Plaintiff’s “total commissioned service,” because the statute de lineating how “total commissioned service” was

calculated for Naval Officers like Plaintiff had been insignificantly amended in 1968. 1

After exhausting all avenues of administrative relief, including the Naval Personnel Command (“NPC”), the Office of the Navy’s Ju dge Advocate General (“OJAG”), and the Board for Correction of Naval Records (“BCNR”), on December 6, 2006, Captain Prochazka filed a

pro se complaint in the United States Court of Federal Claims, seeking correction of his military records, “including a determinati on that the date of his mandator y retirement is July 1, 2008, and for adjustments to pay and allowances for the inte rvening period and for rela ted relief.” Compl. ¶ 1. On February 5, 2007, an Amended Complaint was filed also seeking corrective and monetary relief under the Tucker Act, 28 U.S.C. § 1491(a)(1); the Mi litary Pay Act, 37 U.S.C. § 204; 10 U.S.C. § 1552 (authorizing the correction of milit ary records); and 10 U.S.C. §§ 1401–12 (computation of military retire d pay). Am. Compl. ¶ 4. On March 25, 2008, the court stayed this case to afford Plaintiff time to obtain counsel.

On January 26, 2009, Thomas A. Coulter, a part ner in the firm of LeClair Ryan, P.C., filed a motion to appear as counsel for Captai n Prochazka before the BCNR and the court.

On December 10, 2009, the court issued a Memorandum Opinion And Order determining that it had jurisdiction to adjudicate the claims alleged in the February 5, 2007 Amended Complaint, pursuant to the Tucker Act, 28 U.S. C. § 1491(a)(1), and the Military Pay Act, 37 U.S.C. § 204. See Prochazka v. United States

, 90 Fed. Cl. 481, 488–89 (2009) (“ Prochazka I ”).

The court also determined that the BCNR vi olated 10 U.S.C. § 1556, and its own internal procedures, by failing to allow Captain Prochazka the opportuni ty to comment on a May 2004 NPC Advisory Opinion before issuing a May 11, 2004 decision. Id . at 493–94. Since this error was prejudicial and the May 2004 NPC Advisory Opinion failed to provide a rational basis for

1 Prior to 1968, 10 U.S.C. § 6388(b) required the “total commissi oned service of each

officer originally appointed in the grade of lieutenant (juni or grade) or ensign in any staff corps of the Navy . . . [to be] computed from June 30 of the fiscal year in which he accepted that appointment.” 10 U.S.C. § 6388(b) (1964) (emphasi s added). In 1968, the statute was modified to require that the “total comm issioned service of each officer initially appointed in the grade of lieutenant (junior grade) or ensi gn in any staff corps of the Navy . . . is computed from June 30 of the fiscal year in which he accepted that a ppointment.” 10 U.S.C. § 6388(b), as amended in 1968. In short, the text of the statute was ch anged from “originally appointed” to “initially appointed.”3 how the Navy’s determination of Plaintiff’s “ser vice date” was computed, the court denied the Government’s August 3, 2007 Motion To Dismiss, stayed pending Cross Motions For Judgment On The Administrative Record, and remanded th e case, pursuant to RCFC 52.2, instructing the BCNR to answer four specific questions. Id. at 497–98. 2

Thereafter, the BCNR requested and received advisory opinions from the NPC and the

OJAG. See 3/16/11 BCNR Dec ., Doc. 84 at 1. A March 29, 2010 Advisory Opinion from the NPC reaffirmed the Navy’s prior interpretati on of 10 U.S.C. § 6388(b), as amended in 1968. 3 A March 26, 2010 Advisory Opinion from the OJ AG, however, adopted the reasoning of an October 26, 2001 OJAG Advisory Opinion (“2001 OJAG Op.”), prep ared in response to a June 6, 2001 letter from Captain Prochazka to the Navy, but not previously disclosed to him, despite repeated requests. See 2010 OJAG Op. at 1 (citing “refer ence (c)”). Both the 2001 and 2010 OJAG Advisory Opinions concluded that Ca ptain Prochazka’s September 20, 1977 appointment into the Regular Navy was as a lieutenant and not as a lieutenant (junior grade). See 2010 OJAG Op. at 2 (citing 2001 OJAG Op. at 7–12). In other words, if Captain Prochazka had been appointed into the Regular Navy as a lieutenant (junior grade) it was possible to compute his “total commissioned service,” pursuant to 10 U.S.C. § 6388(b), as amended in 1968, because:

This section [§ 6388(b)] as enacted used the word “originally” [instead of] “initially.” 10 U.S.C. § 6388(b) as am ended by U.S. Code, 1976, substitutes the word “initially” for “originally.” The le gislative history is silent on the reason behind this change. An officer’s first appoi ntment in a staff corps is an original

2 The court directed the BCNR to answer the following questions:

1. Pursuant to NAVMILPERSCOM Notice 1821, should the Navy compute

Plaintiff's service date unde r the “AA” or “M” method?

2. If Method “AA” is the proper method for computing Plaintiff's service date, what is Plaintiff's correct service date, gi ven the type of his appointment and date of rank at the time of appointment?

3. If method “M” is the proper method for co mputing Plaintiff's service date, what is the proper amount of “constructive se rvice credit” that should be awarded to

Plaintiff?

4. If Plaintiff's service date and involunt ary retirement date should be adjusted, what correction of his military record is required and what accrued pay and

benefits are due?

Prochazka I , 90 Fed. Cl. at 498.

3 The March 29, 2010 NPC Advisory Opinion corrected a prior March 15, 2010 NPC Advisory Opinion that contai ned “clerical errors.” See 3/16/11 BCNR Dec ., Doc. 84 at 2.4 appointment; thus, substituting “initially” for “originally” would not alter the meaning of the statute.

2001 OJAG Op. at 7 n.23 (emphasis added).

On September 24, 2010, the BCNR requested a “supplemental advisory opinion” from the OJAG, to ascertain whether the Marc h 26, 2010 OJAG Advisory Opinion could be “harmonized” with the March 29, 2010 NPC Advisory Opinion. See 3/16/11 BCNR Dec ., Doc. 84, Encl. 13 at 3.

On October 25, 2010, without performing any additional analysis, the OJAG issued a “supplemental advisory opinion” adopting th e March 29, 2010 NPC advisory opinion’s interpretation of 10 U.S.C. § 6388, as amende d in 1968, and disavowing the reasoning of the 2001 OJAG Opinion regarding the substitution of “i nitially” for “originally” in the statute. 10/25/10 OJAG Supp. Op. at 2.

On January 17, 2011, Captain Prochazka submitt ed a new record to the BCNR that he had only recently obtained from the Navy w ith the assistance of Senator Jim Webb, demonstrating that Captain Prochazka’s first appointment into the Regular Navy was as a lieutenant (junior grade), and not as a lieutenant. See 3/16/11 BCNR Dec ., Doc. 84, Encl. 22 at 9 (copy of an “ALNAV” electronic message that was transmitted at the time of Captain Prochazka’s appointment into the Regular Na vy in 1977 confirming his permanent appointment was to the rank “LTJG,” with a temporary appointment as “LT”).

On March 16, 2011, the BCNR issued a decision concurring with the March 29, 2010 NPC Opinion and the October 25, 2010 OJAG “suppl emental” advisory opinion, concluding that no method existed, prior to DOPMA, to determ ine Captain Prochazka’ s “total commissioned

service.” See 3/16/11 BCNR Dec . at 6–7. Therefore, the BCN R again found that the Navy correctly computed Captain Prochazka’s “total commissioned service” under the M method set

forth in SECNAVINST 1821.1. See 3/16/11 BCNR Dec . at 6–7.

On April 30, 2012, after additional briefing on the parties’ re spective Motions For Judgment On The Administrative Record, the c ourt determined that the Navy and the BCNR’s interpretation of 10 U.S.C. § 6388(b), as amended in 1968, was arbitrary, capricious, and contrary to law. See Prochazka v. United States , 104 Fed. Cl. 774, 796–97 (2012) (“ Prochazka

II

”).

II. PROCEDURAL HISTORY.

On November 16, 2012, the court entered a Fina l Judgment that Captain Prochazka was:

[D]ue $413,940.54 in back pay, comprise d of active-duty back pay of $612,961.98 for the period between July 1, 2002 and June 30, 2007; a credit to the government of $295,244.19 for retirement pay received between July 1, 2002 and June 30, 2007; and retirement back pa y of $96,222.75 for the period of July 1, 2007 through September 30, 2012 . . . . Furthermore, . . . [P]laintiff is entitled to5 receive monthly military retirement pay of $8,459.00, beginning on October 1, 2012 and going forward[.]

Judgment, Prochazka v. United States , No. 06-cv-827 (Fed. Cl. Nov. 16, 2012), ECF No. 110.

On January 14, 2013, the Government filed a Notice Of Appeal, but withdrew it on June 14, 2013, pursuant to a Joint Stipulation Of Dismissal. See Order, Prochazka v. United States

, No. 2013-5052 (Fed. Cir. filed June 20, 2013), ECF No. 17 (formal mandate dismissing appeal pursuant to Federal Rule of A ppellate Procedure 42(b)).

On July 19, 2013, Plaintiff filed a Motion For Attorney Fees And Related Expenses/Costs

with the United States Court of Federal Claims , pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA Mot.”), together with: (1) the July 19, 2013 Declaration of Thomas A. Coulter (“Coulter Decl.”); (2) a copy of the Unit ed States Department of Labor, Bureau of Labor Statistics’ Consumer Price Index (“CPI”); (3 ) an itemized spreadsheet listing Plaintiff’s counsel’s time entries, adjusted for cost of livin g (“Ex. A”); (4) supporting invoices from LeClair Ryan, P.C., for time billed from December 31, 2008 through April 30, 2013 (“Ex. B”); (5) the declaration of Michael A. Batten, the Project Billing and Audit Coordinator at LeClair Ryan, P.C. (“Ex. C”); (6) the July 17, 2013 Declaration of Plaintiff, Captain Frank J. Prochazka (“7/17/13 EAJA Decl.”), including his 2006 and 2007 joint 1040 tax returns (“7/17/13 EAJA Decl. Ex. A”), and an itemized description of costs and expenses that Captain Prochazka incurred prior to retaining LeClair Ryan, P.C. (“EA JA Decl. Ex. B”); (7) an itemized list of costs and expenses, including supportin g invoices, incurred by LeClair Ry an, P.C. (“Ex. D”); and (8) EAJA Form 5, Application For Fees And Other Expenses Under The E qual Access To Justice Act (“Ex. E”).

On November 25, 2013, after the court granted four extensions, the Government filed a Response (“Gov’t Resp.”).

On January 22, 2014, Plaintiff filed a Reply and Supplemental Motion For Attorney Fees And Related Expenses/Costs (“Pl. Reply”), requesting: (1) $110,561.56 for attorney fees incurred from November 10, 2008 to December 20, 2013, (2) $763.37 in expenses and costs incurred by Captain Prochazka for th e period during which he proceeded pro se , and (3) $1,950.00 in expenses and costs incu rred by LeClair Ryan, P.C. EAJA Mot. 21; Pl. Reply 22. Plaintiff’s January 22, 2014 Reply also incl udes an updated itemized spreadsheet listing Plaintiff’s counsel’s time entries spent prep aring the EAJA Motion and January 22, 2014 Reply (“Pl. Reply Ex. A”).

III. DISCUSSION.

A. Jurisdiction.

Plaintiff’s July 19, 2013 Motion For Attorney Fe es And Related Expenses/Costs properly invokes the court’s jurisdiction pur suant to the EAJA, unde r which “a [federal trial] court shall award to a prevailing party other than the United St ates fees and other expenses . . . in any civil action . . . brought by or against th e United States in any court havi ng jurisdiction of that action,”6 if certain requirements are met. See 28 U.S.C. § 2412(d)(1)(A). And, since the United States Court of Federal Claims had jurisdiction to ad judicate the claims alleged in the December 6, 2006 Complaint, as amended, the court also has ju risdiction to adjudicate Plaintiff’s July 19,

2013 Motion. See Burkhardt v. Gober , 232 F.3d 1363, 1367 (Fed. Cir. 2000) (holding that a court has jurisdiction to adjudica te a claim filed under the EAJA fo r attorney fees, expenses, and costs where the court “ha[d] the power to hear and decide the underlying civil action in which the EAJA applicant incurred thos e fees and other expenses”).

B. The Requirements Of The Equa l Access To Justice Act.

Congress enacted the EAJA to authorize a prevailing party in a lawsuit against the United

States to recover reasonable attorn ey fees, expenses, and costs. See Scarborough v. Principi , 541 U.S. 401, 406 (2004) (“Congress enacted EAJA, Pub. L. 96-481, Tit. II, 94 Stat. 2325, in 1980 ‘to eliminate the barriers that prohibit small bus inesses and individuals from securing vindication of their rights in . . . administrative proceedi ngs brought by or against th e Federal Government.’” (quoting H.R. Rep. No. 96-1005, at 9 (1980))). Section (d)(1)(A) of the EAJA provides that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United Stat es fees and other e xpenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort ), including proceedi ngs for judicial review of agency action, brought by or ag ainst the United States in any court having jurisdiction of that action, unless the court finds that the pos ition of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

Section (d)(1)(B) requires a “party” seeking r easonable attorney fees , expenses, and costs under the EAJA to submit an application “within th irty days of final j udgment in the action,” together with a statement asserting that the pos ition of the United States was not substantially justified and showing that:

[T]he party 4 is a prevailing party and is eligible to receive an award . . . , the amount sought, including an itemized statement from a ny attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed.

28 U.S.C. § 2412(d)(1)(B).

The United States Supreme Court has held that the EAJA requires: “( 1) that the claimant be a ‘prevailing party’; (2) that the Government’s posit ion was not ‘substantially justified’; (3)

4 “Party” is defined, in releva nt part, as “an individual w hose net worth did not exceed $2,000,000 at the time the civil ac tion was filed[.]” 28 U. S.C. § 2412(d)(2)(B).7 that no ‘special circumstances make an award unjust’; and, (4) pursuant to 28 U.S.C. § 2412 (d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.” Comm’r, INS v. Jean , 496 U.S. 154, 158 (1990).

The court’s determination of wh ether the position of the Unit ed States was “substantially justified” is based on “the record (including the record with respect to the action or failure to act by the agency upon which the civil ac tion is based) which is made in the civil action for which fees and other expenses are sought .” 28 U.S.C. § 2412(d)(1)(B).

In this case, the Government does not disp ute that Captain Prochazka: (1) is the “prevailing party”; (2) is a “par ty . . . whose net worth did not exceed $2,000,000 at the time the civil action was filed”; and (3) timely filed a motion for attorney fees, expenses and costs. Gov’t Resp. 5. The court is also satisfied that Plaintiff meet s these threshold requirements. 5 Nor does the Government suggest that there are any “speci al circumstances that would make an award, on the whole, unjust.” Gov’t Resp. 11.

The Government, however, contends that its position was “substantia lly justified.”

C. Whether The Government’s Position Was “Substantially Justified.”

1. The Government’s Argument.

The Government argues that the court must take into account that “the EAJA is a partial waiver of sovereign immunity that ‘must be stri ctly construed in favor of the United States.’” Gov’t Resp. 4 (quoting Ardestani v. INS , 502 U.S. 129, 137 (1991)). C ongress did not intend the EAJA to serve as a “mandatory fee sh ifting device.” Gov’t Resp. 4 (quoting KMS Fusion,

5 In this case, Captain Prochazka unquestionabl y is the “prevailing party,” since the court awarded him back pay from July 1, 2002, and directed that his military records be corrected. See

Prochazka II , 104 Fed. Cl. at 800; see also Gurley v. Peake , 528 F.3d 1322, 1326 (Fed. Cir. 2008) (“Prevailing party status requires ‘some relief on the merits.’” (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res. , 532 U.S. 598, 603 (2001))).

Captain Prochazka also submitted a July 17, 2013 Declaration indi cating that his net worth has never exceeded $2,000,000 “during the entire pendency of this matter, including at the time the civil action was filed[.] ” 7/17/13 EAJA Decl. ¶ 2. His Joint 1040 tax returns for 2006 and 2007 confirm this representation. 7/17/13 EAJA Decl. Ex. A.

In addition, the July 19, 2013 EAJA Motion included an itemized statement and was timely as it was filed within th irty days of entry of the June 20, 2013 Mandate and Order. See Order, Prochazka v. United States , No. 2013-5052 (Fed. Cir. filed June 20, 2013), ECF No. 17;

see also 28 U.S.C. § 2412(d)(2)(G) (defin ing “final judgment” as “a judgment that is final and not appealable, and includes an order of settlement”).8 Inc. v. United States , 39 Fed. Cl. 593, 598 (1997) (citing Gavette v. Office of Pers. Mgmt. , 808 F.2d 1456, 1465 (Fed. Cir. 1986) ( en banc ))).

The Government also contends that the legal issues in this case were of first impression and that the United States Court of Appeals fo r the Federal Circuit has cautioned that “[w]hen

the issue is a novel one on which th ere is little precedent, courts have been reluctant to find the [G]overnment’s position was not substantia lly justified.” Gov’t Resp. 7 (quoting Norris v. Securities and Exchange Comm’n. , 695 F.3d 1261, 1265 (Fed. Cir. 2012) (quoting

Schock v. United States , 254 F.3d 1, 6 (1st Cir. 2001))); see also id. (“The general issue raised by [Plaintiff] had not been raised in [the United States Court of Federa l Claims] before.”).

Russo v. Winter

, No. 06-cv-1256 (S.D. Cal. June 30, 2006), ECF No. 12, is the only case addressing the general issue raised in this case. Therein, the United States District Court for the Southern District of California dismissed the pl aintiff’s challenge as no n-justiciable, reasoning that the Secretary’s “uniform and consistent in terpretation of the regulations at issue is not plainly erroneous and represents a reasoned management policy decision.” Gov’t Resp. 7 (quoting Order, Russo , No. 06-cv-1256 (S.D. Cal. June 30, 2006), at 7, ECF No. 12); see also id. 10 (“The only other court to consider this issue, the Southern District of California, elected to refrain from interfering with the Navy’s c onsidered and rational personnel-management policy.”). Although that case ar ose under the Administrative Pr ocedure Act, 5 U.S.C. § 551 et

seq. (“APA”), and is “not strictly applicable to Tucker Act military pay claims,” the District

Court’s observations demonstrate that the Govern ment’s position in this case was “substantially justified.” Gov’t Resp. 7. Moreover, since this case involves “matters affecting the military,” the court should decline to determine that the Government’s position was not substantially justified. 6 Gov’t Resp. 8.

In addition, the complex substantive nature of this case evidences th at the Government’s litigation position was s ubstantially justified. See Gov’t Resp. 9 (“[T]o the extent that there is any question about the need for litigation due to the difficulty of the question, the procedural history of this case should put such concerns to rest.”). Specificall y, the court required the parties to submit multiple rounds of briefing on the merits, and the court remanded the case on December 10, 2009 to the BCNR. Gov’t Resp. 10 (describing the procedural history as demonstrating that “[r]easonable minds have alr eady disagreed about how to handle this issue, and the Government was [therefore] substantially justified in defending this litigation”).

6 The Government cites Russo as support, because it “e cho[es] well-established and longstanding precedent” that the court’s “deference to the President and Congress is at its ‘apogee’ when addressing challenges to the exer cise of congressional oversight or executive branch management of the military and the nation al defense.” Gov’t Resp. 8–9. For this reason, military matters “have been held to be non-justicia ble or non-reviewable by the judicial branch.”

Gov’t Mot. 9.9 2. Plaintiff’s Response.

Prior to 1968, administrative a nd court decisions made clear that a staff corps officer’s

“total commissioned service” under Section 6388 “b egan with his first commission in a staff corps of the Regular Navy, with a permanent commission . . . . [and that] [o]ther prior commissioned service, as a Reserv e officer or a line officer, simply did not count toward his total commissioned service.” EAJA. Mot. 6 (citing, e.g. , To the Secretary of the Navy , 37 Comp. Gen. 747, 748 (1958) (explaining that “y ears of commissioned service beginning on June 30 of the year in which the officer was originally commissioned in a staff corps of the Regular Navy, with
a permanent commission , [are to be counted] for the purpose of determining a staff corps officer’s eligibility for . . . separation from the active list” (emphasis added)); see also Payson v. Franke , 108 U.S. App. D.C. 368, 370–71 (1960) (same), cert. denied , 365 U.S. 815 (1961)). Moreover, the Navy never disputed Plaintiff’ s contention, first made in June 2001, that

his “total commissioned service” under pre-1968 law would be dete rmined from the date of his permanent appointment as a lieutenant (junior grade) in the Regular Navy on September 20, 1977. EAJA Mot. 6. As such, the Navy departed from established law. For this reason, among others, the Government’s litiga tion position in this case was not substantially justified. The Government’s position, both at the agency level and in the Un ited States Court of Federal Claims, rested on a “one-word change in the statutory language” (EAJA. Mot. 6) that was contrary to the plain language of Section 6388, as amended in 1968. EAJA Mot. 15. As the court detailed in the Apr il 30, 2012 Memorandum Opinion And Final Order, the Navy’s interpretation was “contrary to the statute’s structure and there was no evidence that Congress intended to change the meaning of the statut e with its one-word substitution in Section 6388(b)[.]” EAJA Mot. 15 (citing Prochazka II , 104 Fed. Cl. at 791–93). Moreover, the Navy’s interpretation of Section 6388(b) was inconsistent with the legisl ative history, because there is no evidence that Congress intended to change “the relevant appointment for purposes of computing the years of service creditable toward retirement.” EAJA Mot. 15 (citing Prochazka II , 104 Fed.

Cl. at 794 (analyzing the legislative history of 10 U.S.C. § 6388(b), as amended in 1968)).

The context of this case also needs to be ke pt in mind, since, for the past decade, the Navy engaged in a variety of di latory tactics that delayed resolution of Captain Prochazka’s claims, notably declining “to actua lly address his questions regard ing [the Navy’s] interpretation of the statute in questio n[.]” EAJA Mot. 14; see also Pl. Reply 7 (“[T]he Government never bothered to address [Plaintiff’s] questions regarding [the Navy’s] interpretation of . . . Section 6388(b).”). The Navy also did not provide Captain Prochazka with information regarding how his mandatory retirement date was determined, nor did it allow Plaintiff to comment on the May 2004 NPC Advisory Opinion, in direct contrave ntion of Navy regulations. EAJA Mot. 14–15. The Navy’s statutory interpretati on also was not substantiated by any longstanding interpretation of Section 6388(b), as amended in 1968. EAJA Mot. 15–16. Instead, the Navy’s interpretation was supported only by an internal memorandum issued by the Acting Navy JAG in 1972 (that contained no statutory anal ysis), and a 1975 memorandum from the Acting Navy JAG that simply adopted the reasoning of the 1972 memorandum. EAJA Mot. 15–16.

Moreover, the 2001 OJAG Advi sory Opinion is “the only internal Navy document in the

Administrative Record in which the author disc usses the fact that the word ‘originally’ was replaced by ‘initia lly’ in the 1968 Act,” and that Opin ion entirely contradicted the Navy’s10 statutory interpretation and was not disclosed to Plaintiff un til 2010. EAJA Mot. 16 (quoting

Prochazka II , 104 Fed. Cl. at 796 (emphasis in original)); see also id. (“An officer’s first appointment in a staff corps is an original appointment; thus, substituting ‘initially’ for ‘originally’ would not alter the meaning of the statute [ i.e. , 10 U.S.C. § 6388(b), as amended in 1968].” (quoting 2001 OJAG Op. at 7 n.23)); Pl. Reply 2 (“[T]he Navy concealed its own statutory interpretation for more than 8 years . . . basing its defense . . . on a statutory interpretation argument contradi cted by its own statutory interp retation from 2001.”). Had the Navy followed the 2001 OJAG Opinion—“its own internal advice”—Captain Prochazka would

have avoided more than a decade of litigation. EAJA Mot. 16.

The Government’s “most egregious conduct, ” however, occurred after the court’s December 10, 2009 Memorandum Opinion And Or der remanding the case to the BCNR for further proceedings. EAJA Mot. 16. At th at point, the Navy “managed to issue two contradictory advisory opinions,” i.e. , a March 29, 2010 NPC Advisory Opinion and a March 26, 2010 OJAG Advisory Opinion, both c oncluding that Captain Prochazk a should be denied relief. EAJA Mot. 16–17. But, the NPC Advisory Opin ion merely reiterated the Navy’s flawed statutory interpretation, suppor ted by nothing more than a cursory analysis of the “plain meaning” of “initially.” EAJA Mot. 17. In contrast, the 2001 OJAG Advisory Opinion concurred with Captain Prochazka’s view that “s ubstituting ‘initially’ for ‘originally’ effected no substantive change in the statute,” but also concluded, without any “cr edible support,” that Captain Prochazka was appointed as a lieutenant and therefore was not in a qualifying grade for purposes of the Section 6338(b). EAJA Mot. 17–18 & n.5; see also Pl. Reply 8 (construing the erroneous conclusion in the 2001 OJAG Opinion that Plaintiff was appointed as a lieutenant as being belied by “a simple review of [Plaintiff’s] military records”). The inconsistency between the NPC and OJAG Advisory Opinions was so st ark that the OJAG adopt ed, without performing any additional analysis, the NPC’ s statutory interpretation in a supplemental advisory opinion to “harmonize” the Navy’s contradictory positions. EA JA Mot. 18. Based on this record, the court should reject the Government’s flawed contentio n—that its position in this case was substantially justified. Pl. Reply 5 (citing Metro. Van & Storage, Inc. v. United States , 101 Fed. Cl. 173, 187 (2011) (holding that substantial justifica tion requires the Government to be “ clearly reasonable in asserting its position, includi ng its position at the agency level, in view of the law and the facts” (internal citation omitted))).

In addition, the Government’s position was not ipso facto substantially justified simply because this case may have involved an issue of first impression. Pl. Reply 6 (citing

Devine v. Sutermeister , 733 F.2d 892, 895 (Fed. Cir. 1984) (“[T]he novelty of the [G]overnment’s position cannot compensate for the paucity of support in favor of that position.”), superseded on other grounds by statute as recognized in Doty v. United States , 71 F.3d 384, 385 (Fed. Cir. 1995)). “Unlike most cases of first impressio n, presenting novel legal claims . . . , this was not a part icularly difficult stat utory interpretation issu e.” Pl. Reply 6. The structure, plain meaning, and legislative hi story of 10 U.S.C. § 6338 all undermined the Government’s statutory interpretation, and thus , “this was not a close call.” Pl. Reply 7; see also

id. (explaining that Plaintiff’s lawsuit “should not have been a case at all, had the Navy ever bothered to examine [Plaintiff’s] statutory interpretati on argument at some point prior to [the court’s] decision more than 10 years after [Plaintiff] filed his initial claim”).11 Plaintiff also discounts the Government’s asse rtion that “it is of some support for [the Government’s] position that the BCNR twice ruled against [Plaintiff].” Pl. Reply 10 (citing Gov’t Resp. 10). As the court determined in the December 10, 2009 Memorandum Opinion And Order, the BCNR’s May 11, 2004 decision violated 10 U.S.C. § 1556, since the BCNR did not

allow Plaintiff to comment on the NPC adviso ry opinion. Pl. Reply 3, 10. The second BCNR decision, issued on March 16, 2011, also “failed to rationally harmoniz e two contradictory opinions from NPC and OJAG” (Pl. Reply 10), and was determined by the court to be arbitrary and capricious. Pl. Reply 3; see also id. 10 (construing the BCNR’s decision as merely “rubberstamping” the Navy’s statutor y interpretation argument). Further, “the BCNR never acknowledged that the Navy’s [sta tutory interpretation of Secti on 6388(b), as amended in 1968] was contrary to the law prior to DOPMA.” Pl. Reply 10.

In addition, although Russo involved a “Naval Officer with similar circumstances” to Captain Prochazka, Russo “never addressed [Plaintiff’s] statut ory argument, . . . it is unclear whether that argument was ever presented to the c ourt in the first place,” and the District Court concluded that the controversy was non-just iciable. Pl. Reply 11 (citing Order, Russo v. Winter

, No. 06-cv-1256 (S.D. Cal. June 30, 2006), ECF No. 12); see also id. (explaining that the District Court never engaged in the statutory analysis th at was determinative in this case, because the court “simply assumed the Navy’s interpretati on of relevant statut es was correct”).

Finally, the procedural history of this case does not demons trate that the Government’s position was substantially justified. Pl. Reply 11. Instead, procedural issues such as the court’s remand to the BCNR, additional briefing to respond to amicus curiae National Veterans Legal Service Program, and “the possibility of a class action” required additional time. Pl. Reply 11– 12. Therefore, “the lengthy proc edural history and multiple r ounds of briefing do not, in any way,” justify the Government ’s position. Pl. Reply 14; see also id. (“The only real complexity was in reviewing the lengthy record to determine whether the Navy had ever really offered any interpretation of the ke y statutory amendment that was at the heart of [Plaintiff’s] claim.” (emphasis added)).

3. The Court’s Resolution.

The United States Supreme Court has defined “s ubstantially justified” to mean “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 c itation and quotations omitted). In determining substantial justificat ion, the court must “look at the entirety of the [G]overnment's conduct and make a judgment call whether the [G ]overnment’s overall position had a reasonable

basis in both law and fact

. ” Chiu v. United States , 948 F.2d 711, 715 (Fed. Cir. 1991). “To be ‘substantially justified’ means . . . more than merely undeserving of sanctions for frivolousness[.]” Pierce , 487 U.S. at 566. “Congress did not, however, want the substantially justified standard to be read to raise a pr esumption that the Government position was not substantially justified simply because it lost the case[.]” Scarborough , 541 U.S. at 415 (citation and internal quotations omitted).

The Government “has the burden to show that its position was substantially justified.”
Miles Constr., LLC v. United States , 113 Fed. Cl. 174, 177 (2013); see also White v. Nicholson

,12 412 F.3d 1314, 1315 (Fed. Cir. 2005) (“The EAJA re quires the Government to show that its position during the course of proceedings was substa ntially justified.”). To satisfy this burden, the Government must justify its position throu ghout the litigation, as we ll as its prelitigation

conduct. See Jean , 496 U.S. at 159 (explaining that the Government’s “position . . . encompass[es] both the agency’s prelitigation conduct and the Department of Justice’s subsequent litigation positions”); see also Patrick v. Shinseki , 668 F.3d 1325, 1330 (Fed. Cir. 2011) (explaining that the “‘position’ of the [G]overnment includes actions taken at the agency level as well as argumen ts made during litigation”).

The court is mindful that Congress did not en act the EAJA to functi on as a mandatory fee shifting device in litigation. See KMS Fusion, Inc. , 39 Fed. Cl. at 598. The novelty or difficulty of the legal issues presented also is relevant in determining whether the Government’s position was substantially justified. See Norris , 695 F.3d at 1265 (explai ning that assessing the “justification of the [G]overnment’s position [requires the court to] . . . consider the clarity of the governing law, that is, whether ‘judicial decisions on the issue left the status of the law unsettled,’ and whether the legal is sue was novel or difficult” (quoting Nalle v. C.I.R. , 55 F.3d 189, 192 (5th Cir. 1995))). It is equally cl ear that the EAJA imposes on the court the “responsibility to examine thorough ly the entire history of the di spute, not just the litigation phase.” KMS Fusion, Inc. , 39 Fed. Cl. at 597; see also 28 U.S.C. § 2412(d)(2)(D) (defining “position of the United States” as “the position taken by the United States in the civil action, [and] the action or failure to act by the agen cy upon which the civil action is based”). In addition, although the EAJA require s a holistic interpretation of the Government’s conduct, so

that the reasonableness of the Government’s position is “determined by the totality of circumstances,” Essex Electronic Engineers, Inc. v. United States , 757 F.2d 247, 253 (Fed. Cir. 1985), “the Government’s prelitigation conduct or its litigation position could be sufficiently unreasonable by itself to render the entire G overnment position not substantially justified,” Healey v. Leavitt , 485 F.3d 63, 67 (2d Cir. 2007) (internal ci tations and quotations omitted).

The United States Court of Appeals fo r the Federal Circuit has held that:

[S]ubstantial justification requires that the Government show that it was clearly

reasonable in asserting its position, including it s position at the agency level, in

view of the law and the facts. The G overnment must show that it has not persisted in pressing a te nuous factual or legal posit ion, albeit one not wholly

without foundation.

Gavette , 808 F.2d at 1467 (emphasis added) (inter nal citations and quotations omitted).

The Navy’s prelitigation conduct in this case evidences a patte rn of dilatory tactics and unreasonable behavior. For example, the Administ rative Record contains no evidence that, after Captain Prochazka petitioned the NPC to recalcu late his assigned retirement date on June 6, 2001, the Navy ever responded to his inquiry. Even after the NPC forwarded Captain Prochazka’s unanswered petition to OJAG for an opinion, he was not even provided with a copy of the OJAG opinion. Around July 2002, Captain Prochazka received a “response” to his unanswered June 6, 2001 petition that consisted largely of an admission that records pertaining to Captain Prochazka’s petition were someho w lost. This conduct was exacerbated by the13 Navy’s failure to allow Captain Prochazka to comment on the May 2004 NPC Advisory Opinion in contravention of 10 U.S.C. § 1556, despite Capt ain Prochazka’s explicit written request to do so. These errors and delays engendered more errors and delays.

After the court issued its December 10, 2009 Memorandum Opinion And Order, the NPC and OJAG issued contradictory advisory opinions on March 29 and March 26, 2010, respectively, requiring the BCNR to request a “supplemental” OJAG Advisory Opinion to address how the two opinions could be “harmonize d.” This “harmonizati on” took the form of the OJAG summarily adopting, without performi ng any additional analysis, the incongruous March 29, 2010 NPC Advisory Opinion. During this pr ocess, the Navy also revealed for the first time, despite repeated prior requests by Captain Prochazk a, that the 2001 OJAG Opinion explicitly adopted Captain Prochazka’s statut ory interpretation argument and contravened the Navy’s statutory argument. Eight years passed before the Navy fina lly disclosed this Opinion.

Subsequently, the Government adopted the Na vy’s view that substi tuting “initially” for “originally”—two words that are undeniably sy nonyms—heralded a substa ntive change, without any indication from Congress, in 10 U.S.C. § 6388(b). This deci sion now adversely affects an entire class of Navy officers, like Captain Proc hazka, who began their career in the JAGC or JAGC Student Program. The Government’s pos ition also departed fro m the settled pre-1968 understanding that a staff corps officer’s “total commissioned service” wa s calculated from their first commission in the Regular Navy, with a pe rmanent commission; time spent as a Reserve

officer or a line officer was not counted. See To the Secretary of the Navy , 37 Comp. Gen. at 748 (explaining that “years of comm issioned service beginning on June 30 of the year in which the

officer was originally commissioned in a staff corps of the Regular Navy, with a permanent

commission , [are to be counted] for the purpose of dete rmining a staff corps officer’s eligibility for . . . separation from the active list”). In sum, the Government’s argument not only was unfounded in law, but facially implausible. See Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001) (“Congress, we have held, does not al ter the fundamental de tails of a regulatory scheme in vague terms or ancillary provisions —it does not, one might say, hide elephants in mouseholes.”).

The combination of the Government’s err oneous statutory interpretation, neglect in disclosing the highly relevant 2001 OJAG Opinion, unlawful failu re to allow Plaintiff to comment on the NPC Advisory Opinion, and unwill ingness to address Plaintiff’s statutory interpretation argument at the agency level, was simply not justifiable “to a degree that could satisfy a reasonable person.” Pierce , 487 U.S. at 565; cf. Kelly v. Nicholson , 463 F.3d 1349, 1355 (Fed. Cir. 2006) (concluding that when th e Government ignored relevant evidence presented by the plaintiff at the agency level, the Government’s position was not substantially justified because “a failure to consider evidence of record cannot be subs tantially justified”). Indeed, the process outlined above is the paradigm example of an agency continuing to press “a tenuous factual or legal position.” See Gavette , 808 F.2d at 1467 (holding that, to demonstrate substantial justification, the “Government must show that it has not ‘persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundati on’” (internal citation omitted)). It is true that th e Government “can establish that its position was substantially justified if it demonstrates that it adopted a r easonable, albeit incorrect, interpretation of a particular statute or regulation.” Patrick , 668 F.3d at 1330. But, where the Government14 “interprets a statute in a manne r that is contrary to its plain language and unsupported by its legislative history, it will prove difficult to establish substantial justification

. ” Id. at 1330–31;

see also Marcus v. Shalala , 17 F.3d 1033, 1038 (7th Cir. 1994) (upholding the District Court’s decision that the Government’s position was not substantially justified, because the Government’s interpretation was “manifestly contra ry to the [controlling] statute” (citations and internal quotation marks omitted)); Or. Natural Res. Council v. Madigan , 980 F.2d 1330, 1332 (9th Cir. 1992) (holding that the Government’s position was not substantially justified where it contravened the “clear” language and legi slative history of the statute).

Although the statutory issue presen ted in this case was one of first impression, “a relative dearth of precedent does not in itself subs tantially justify governmental action.” Infiniti Info.
Solutions, LLC v. United States , 94 Fed. Cl. 740, 749 (2010); see also Gutierrez v. Barnhart, 274 F.3d 1255, 1261 (9th Cir. 2001) (“[T]here is no per se rule that EAJA fees cannot be awarded where the [G]overnment's litigation position contains an issue of first im pression.”). And, while the Government posits that its position was sup ported by “decades” of practice by the Navy and BCNR, the continual reassertion of an e rroneous legal position, even if supported by administrative decisions, does not render th e Navy’s position substantially justified. 7 Infiniti Info. Solutions, LLC , 94 Fed. Cl. at 749 (“Moreover, even if prior administrative decisions had supported the government's position, that positi on would not necessarily be reasonable.”); see also Metro. Van. & Storage, Inc. , 101 Fed. Cl. at 189 (“[E]ven if prior GAO decisions had found in favor of the government's position, that positi on would not automatically or necessarily have been substantially justified.”); Geo–Seis Helicopters, Inc. v. United States , 79 Fed. Cl. 74, 77–78 (2007) (holding that the Government’s position wa s not substantially justified even though it was supported by a multitude of GAO decisions, b ecause those GAO decisions were contrary to explicit regulations). To be sure, the 1972 and 1975 Acting Navy JAG Memoranda provide some support for the Government ’s position, but the Navy neve r issued formal regulations endorsing the views articulated therein, neither Memorandum actually addressed the substitution of the word “initially” for “originally,” and the only internal Navy document in the Administrative Record that discussed this precis e issue explained that “substituting ‘initially’ for ‘originally’ [did] not alter the meaning of [10 U.S.C. § 6388(b), as amended in 1968.]”

Prochazka II , 104 Fed. Cl. at 796–97 (quoting 2001 OJAG Op. at 7 n. 23).

7 Assuming, arguendo , that the United States District Court for the Southern District of

California’s decision in Russo supports the Government’s positi on, “[o]bviously, the fact that one other court agreed or disagreed with the Go vernment does not establish whether its position was substantially justified.” Pierce , 487 U.S. at 569. Further, any support that Russo provides is based on the District Court’s assumption, unaccompa nied by substantive analysis, that the Navy adopted a “uniform and consistent interpretation of the regulations at issue [that] is not plainly erroneous[.]” Order, Russo , No. 06-cv-1256 (S.D. Cal. June 30, 2006), at 7, ECF No. 12.15 For these reasons, the court has determined th at the Government has not shown that it

was “ clearly reasonable in asserting its position, including its position at the agency level, in

view of the law and the facts.” 8 Gavette , 808 F.2d at 1467 (emphasis in original).

D. Whether The Court’s Award Shoul d Include Work Performed On Determining The Viability Of A “Class Action.”

1. The Government’s Argument.

The Government challenges only one category of fees claimed, i.e. , the time and expenses claimed related to the court’s inquiry about wh ether this case shoul d be categorized as a class action. Gov’t Resp. 11. The amount of le gal fees in that category is $6,043.78. Gov’t Resp. 11. The United States Court of Federal Cl aims has discretion to reduce a fee award sought under the EAJA, where an amount claimed could be considered “recovery out of proportion to [a party’s] actual success.” Gov’t Resp. 11 (quoting CEMS, Inc. v. United States , 65 Fed. Cl. 473, 484 (2005) (quoting Baldi Bros. Constructors v. United States , 52 Fed. Cl. 78, 83 (2002))). Specifically, the court may reduce an award to re flect the prevailing party’s lack of success on a particular issue raised. Gov’t Resp. 11 (citing Hensley v. Eckerhart , 461 U.S. 424, 436–37 (1983) (“The [trial] court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.”)).

Several of the billing records submitted indicate that, at the court’s request, Plaintiff’s counsel spent time “addressing the issue of converti ng this case to a class action,” but concluded that was not a viable option. Gov’t Resp. 12. B ecause Plaintiff did not succeed on this issue, Plaintiff’s counsel should not be compensa ted for this work. Gov’t Resp. 11–12 (citing Supplemental Brief, Prochazka v. United States , No. 06-cv-827, Dkt. No. 63, at 46 ([T]his case is not appropriate for certifica tion as a class action.”)). The G overnment asserts that the court should exclude all entries associated with certifyi ng this case as a class action since Plaintiff’s billing records are recorded in “block billing” entries. Gov’t Resp. 14 (citing Cobell v. Norton

, 407 F. Supp. 2d 140, 160 (D.D.C. 2005) (observing that courts “confronted with petitions [for attorney fees] containing block time entries . . . . have simply voided ‘the entire time entries billed as block time’” (quoting Reyes v. Nations Title Agency of Ill., Inc. , No. 00-7763, 2001 WL 687451, at *1 (N. D. Ill. June 19, 2001)))). Since th e burden of proof lies with the plaintiff, and “block-billing frustrates the [c]our t’s inquiry,” all such entries shoul d be denied. Gov’t Resp. 14.

2. Plaintiff’s Response.

Plaintiff responds that the Government’s a ssertions are belied by relevant decisional authority holding that “when a pl aintiff achieves excellent results, regardless of the number of arguments or claims upon which it prevails, it is entitled to a full fee aw ard under [the] EAJA.”

8 The court also is deeply troubled by the fact that, for other Officers like Captain Prochazka whose claims accrued in 2002, the Govern ment's dilatory tactics at the Navy-level likely have caused the statute of limitations to run a nd therefore precluded those Officers from filing suit to vindi cate their rights.16 Pl. Reply. 15 (citing Metro. Van. & Storage, Inc. , 101 Fed. Cl. at 196 (“Where a plaintiff has obtained excellent results, his a ttorney should recover a fully comp ensatory fee. Normally this will encompass all hours reasonably e xpended on the litigation[.]” (quoting Hensley , 461 U.S. at 435–37))).

Although Plaintiff ultimately determined this case was not appropria te for class action treatment, “some of the details of that work helped bolster other arguments, including [Plaintiff’s] detailed analysis of the methods for assigning a service date under SECNAVINST 1821.1.” Pl. Reply 18 (quoting Hensley , 461 U.S. at 448 (Brennan, J., concurring in part, dissenting in part) (explaining that “even where two claims [asserted in the same lawsuit] apparently share no ‘common core of facts’ or related legal concepts, th e actual work performed by lawyers to develop the facts of both claims ma y be closely intertwined” (internal citations omitted))). Moreover, the work Plaintiff perf ormed in this case could favorably impact a potential class action of similarly situated plaintiffs in the future. Pl. Reply 18 (noting that “any ruling in [Plaintiff’s] favor could clearly impact others similarly situated”).

The court specifically requested that the part ies analyze the appropriateness of this case for treatment as a class action; Plaintiff’s “counsel duly complied with the [c]ourt’s request and provided an analysis as to whether class action treatment was warranted for this matter.” Pl. Reply 19. Although the Government argues that it should not bear th e costs of Plaintiff’s work on the class action issue, it is si milarly unfair to shoulder Plainti ff with that burden. Pl. Reply 19. Finally, Plaintiff argues that, should the court determine that fees associated with work on

the class action issue are not reco verable, the court should not st rike the block-billed entries

associated with that issue, but “apportion[] an appropri ate recovery base d on a reasonable

assessment of the amount of time in the block-billed time entries attributable to work that did not involve any class action issues .” Pl. Reply 19 n.7 (citing Info. Sciences Corp. v. United States

, 88 Fed. Cl. 626, 634–35 (reducing the amount of recoverable attorney fees based on a “fair approximation of the work performe d on reimbursable claims”)).

3. The Court’s Resolution.

In Hensley

, the United States Suprem e Court held that:

Where a plaintiff has obtaine d excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of ex ceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plain tiff failed to prevail on every contention

raised in the lawsuit . . . . The result is what matters

.

Hensley , 461 U.S. at 435 (emphasis added).

Although Hensley involved the fee-shifting provision under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b), th e United States Court of Appeals for the

Federal Circuit has held that the Hensley standard is to be used in determining the amount of fees

awarded under the EAJA. See Hubbard v. United States , 480 F.3d 1327, 1333 (Fed. Cir. 2007)17 (“[W]e see no reason why the . . . principles [announced in Hensley ] should not be equally applicable to the parallel fee-shifting provi sion of the Equal Access to Justice Act.”).

Where a plaintiff achieves only “partial or limited success,” however, instead of “excellent results,” a fully compensatory award of fees may be excessive. Hensley , 461 U.S. at 435–36; see also id. at 440 (“[W]here the plai ntiff achieved only limite d success, the district court should award only that am ount of fees that is reasonabl e in relation to the results obtained.”). The United States Court of Fede ral Claims has “concluded that a plaintiff experiences ‘partial or limited success’ typically where the plaintiff fails on the majority of its claims or recovers significantly less damage s than the amount it originally sought.” United Partition Sys, Inc. v. United States , 95 Fed. Cl. 42, 57 (2010) (citing, e.g. , Dalles Irrigation

Dist. v. United States , 91 Fed. Cl. 689, 703–04 (2010) (reducing plaintiff’s attorney fees because plaintiff only prevailed on thre e of seven total claims); CEMS, Inc. , 65 Fed. at 483–84 (same, re: where plaintiff “prevailed on only 9 of the 30 clai ms and individual bid items actually litigated, and received only somewhat less than 24 percent of the damages sought”)).

In striking the appropriate bala nce to determine whether to ad just a fee award for claims that “involve a common core of facts or [that are] based on related legal theories,” the United States Supreme Court has held that “the most critical factor is the degree of success obtained.” Hensley , 461 U.S. at 435–36. Thus, in a lawsuit consis ting of related claims, “a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the [trial court] did not adopt each contention raised.” Id. at 440; see also Metro. Van & Storage, Inc. , 101 Fed. Cl. at 196 (explaining that “ Hensley requires only that the plaintiff achieve ‘substantial relief,’ not that there be an identity between the relief sought and the relief granted”); United Partition Sys., Inc. , 95 Fed. Cl. at 57 (holding that the plain tiff achieved “substantial success” where it prevailed at each critical procedural stage of litigation, won on the merits, and recovered approximately 81% of the damages it sought). There is no “precise rule or formula” for determining the degree of success a party achieved, and a “plaintiff can obtain ‘excellent results’

even if it lost on some claims.” United Partition Sys, Inc. , 95 Fed. Cl. at 57 (quoting Hensley

, 461 U.S. at 435). Trial courts are vested with broad discretion to de termine appropriate and reasonable attorney fees. See Metro. Van & Storage, Inc. , 101 Fed. Cl. at 185 (explaining that

the court “has considerable discretion to determin e what level of attorneys’ fees are reasonable

and the amount of hours that should be compensated”); see also Hubbard , 480 F.3d at 1334–35 (same).

In the court’s view, Plaintiff’s counsel achieved “excellent results” and is entitled to a full award of attorney fees. This is not a case in which Plaintiff obtained pa rtial or limited success by achieving “significantly less damages than the amount it orig inally sought.” United Partition Sys, Inc. , 95 Fed. Cl. at 57. In fact, Plaintiff’s couns el obtained complete relief for his client, since the court granted Plaintiff’s Motion For J udgment On The Administra tive Record, awarded Plaintiff back pay, enhanced retirement pay, a nd ordered a correction of Plaintiff’s military records. To paraphrase the Court in Hensley , Plaintiff’s counsel obta ined “the result that

mattered.” See Hensley , 461 U.S. at 435 (“The resu lt is what matters.”). That Plaintiff did not “technically” prevail on the issue of converting this case into a cl ass action does not detract from the “degree of success obtained,” which the United States Supreme Court has described as “the

most critical factor.” Id. at 436; see also United Partition Sys, Inc. , 95 Fed. Cl. at 57 (“A18 plaintiff can obtain ‘excellent results’ even if it lost on some claims” (quoting Hensley , 461 U.S. at 435)). Further, Plaintiff’s counsel addresse d the question of certifying this case as a class action after a specific request by the court. See Order, Prochazka v. United States , No. 06-827 (Fed. Cl. Mar. 25, 2008), ECF No. 43 (explaining the court’s concern that “this case should more properly be certified as a class action”).

For these reasons, Plaintiff’s counsel is entitl ed to a full fee award in an amount as

described below.

E. Plaintiff’s Total Award of Fees, Expenses And Costs Under The Equal

Access To Justice Act.

1. Attorney Fees.

Plaintiff has provided an itemized statemen t demonstrating that a total of 625.20 hours were spent litigating the merits phase of this litigation, and preparing the July 19, 2013 Motion For Attorney Fees And Related Expenses/Costs and January 22, 2014 Reply. See Pl. Reply Ex. A. The United States Court of Appeals for the Federal Circuit has held that “attorney fees incurred in the preparation of an application for fees are compens[a]ble under the EAJA.” Schuenemeyer v. United States, 776 F.2d 329, 333 (Fed. Cir. 1985). The court finds that all “entries in question provide sufficient detail to in form the court as to the content of the work done during the hours claimed,” Miles Construction, LLC, 113 Fed. Cl. at 180, and the 625.20 hours claimed is reasonable given the length and co mplexity of this case. Thus, all hours listed in the updated itemized description are included in the fees calculation.

2. Cost Of Living Adjustment.

The EAJA provides that:

[A]ttorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorney s for the proceedings involved, justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A)(ii).

As a matter of law, the United States C ourt of Federal Claims has discretion in determining whether or not to appl y a cost of living adjustment. See Oliveira v. United States, 827 F.2d 735, 742 (Fed. Cir. 1987) (holding that the United States Court of Federal Claims did not abuse its discretion in denying a cost of living adjustment). To prevail on the cost of living adjustment, a plaintiff must “alleg e[] that the cost of living has increased” from the effective date of the statutory cap on fees to the date legal se rvices were rendered, as measured by the CPI. See Cal. Marine Cleaning, Inc. v. United States, 43 Fed. Cl. 724, 733 (1999) . And, the United States Court of Federal Claims “ordinarily grants a cost of living adjustment in an EAJA action when the Department of Labor’s Consumer Price Index . . . indicates that such an adjustment is

warranted.” Miles Constr., LLC , 113 Fed. Cl. at 181 (citing Dalles Irrigation Dist. , 91 Fed. Cl.19 at 705 (explaining that a cost of living adjust ment “should be freely granted” absent unusual circumstances)).

In this case, Plaintiff adequately alleges that the cost of living incr eased and has provided an itemized spreadsheet applying an accepted methodology that compares the March 1996 CPI to the CPI for each month during which Plaintiff’s counsel billed hours, to calculate the cost of living adjustment. Pl. Reply Ex. A; see also Carmichael v. United States , 70 Fed. Cl. 81, 86 (2006) (applying the cost of livi ng adjustment “by comparing th e March 1996 CPI to the CPI for each month an attorney billed hours”); Gonzalez v. United States , 44 Fed. Cl. 764, 771 (1999) (same). In this case, the Government does not dispute that a cost of living adjustment is warranted, nor contests Plainti ff’s method for calculating the ad justment. Gov’t Resp. at 14 (explaining that, should the court award Plaintiff attorney fees, the Government “sees no other

reasons to reduce a fee award from the amount [Plaintiff has] reque sted”). Therefore, the court finds it appropriate to apply a cost of living adjustment and, since the Government does not contest Plaintiff’s methodology, the court accepts Plai ntiff’s calculations as set forth in Pl. Reply

Ex. A. See Dalles Irrigation Dist. , 91 Fed. Cl. at 705 (holding, where the Government does not object to a plaintiff’s method for calculating a cost of living adjust ment, that the court may adopt the plaintiff’s reasonable methodology).

For these reasons, the court has determined that Plaintiff is entitled to $110,561.56 in attorney fees, reflecting compensation for the 625.20 attorney hours billed, adjusted for a cost of living increase. Pl. Reply Ex. A.

3. Expenses And Costs.

Captain Prochazka seeks reimbursement of $2,713.37, including: (1) $763.37 in costs and expenses incurred during the period he proceeded pro se ; and (2) $1,950.00 in costs and expenses that Plaintiff’s counsel and the law fi rm of LeClair Ryan, P.C. incurred from January 23, 2009 to January 9, 2013. See EAJA Decl. Ex. B (detailing Ca ptain Prochazka’s costs and expenses); Ex. D (same, re: expe nses and costs for LeClair Ryan, P.C.). Since the Government does not object to these reasonable expenses and costs, they are in cluded in Plaintiff’s total fees

and costs award.

IV. CONCLUSION.

For these reasons, Plaintiff’s July 19, 2013 Motion For Attorney Fees and Related Expenses/Costs and January 22, 2014 Supplementa l Motion For Attorney Fees are granted. Plaintiff is awarded $110,561.56 in attorney fees and $2,713.37 in related expenses and costs.

Accordingly, the Clerk of Cour t will enter judgment for Plai ntiff in the total amount of $113,274.93, representing the total fees and expens es allowable under the Equal Access to

Justice Act.

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN Judge