              In the United States Court of Federal Claims
                                         No. 10-723 C
                                     (Filed May 15, 2013)

 * * * * * * * * * * * * * *                  *
 JUANITA L. HUGHETT,                          *
                                              *     Motion for Attorney’s Fees and
                       Plaintiff,             *     Costs; Equal Access to Justice
                                              *     Act, 28 U.S.C. § 2412 (2006);
              v.                              *     Procedural Remand Did Not
                                              *     Convey Prevailing Party Status
 THE UNITED STATES,                           *     on Plaintiff; Government’s
                                              *     Litigating Position Was
                       Defendant.             *     Substantially Justified.
                                              *
 * * * * * * * * * * * * * *                  *

       Jason E. Perry, Cheshire, CT, for plaintiff.

       Michael D. Snyder, United States Department of Justice, with whom were
Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, Deborah A. Bynum, Assistant Director, Washington, DC, for
defendant. Todi Carnes, United States Air Force, Joint Base Andrews, MD, of
counsel.
                           ________________________

                                       OPINION
                               ________________________

Bush, Judge.

       The court has before it Ms. Juanita L. Hughett’s motion for an award of
attorney’s fees and costs in the sum of $9376.30.1 Pl.’s Mot. at 3. The parties
dispute whether a remand from this court to the Air Force Board for Correction of


       1
         / The court notes that conflicting figures were submitted by plaintiff, compare Pl.’s Mot.
at 3, Att. 1 at 1 with Pl.’s Mot. Supp. Att. 1 at 1, but the discrepancy is immaterial.
Military Records (AFBCMR or Board) conveyed prevailing party status on
plaintiff. As explained below, plaintiff, under precedent controlling upon this
court, was not a prevailing party in this case. In addition, the government’s
position in this litigation was substantially justified. For these reasons, plaintiff’s
motion must be denied in its entirety.

                                     BACKGROUND2

       The relevant facts are undisputed. Pl.’s Reply at 2. Ms. Hughett served in
the Air National Guard and her service included a period of active duty. Def.’s
Opp. at 2. “[S]he was honorably released from active duty for completion of
required active service on March 20, 2009.” Id. The record shows, however, that
Ms. Hughett was also undergoing medical evaluation for serious health problems
in the months leading up to her discharge. The gravamen of the complaint filed in
this court on October 25, 2010 was that plaintiff was wrongfully discharged and
that Ms. Hughett should be restored to active duty to complete the evaluation of
her “physical disability case.” Compl. at 1, 5. Among the forms of relief requested
were active duty pay, “out of pocket expenses for medical care,” and attorney’s
fees and costs. Id. at 4-5.

       Defendant filed a motion to dismiss and for judgment on the administrative
record on April 11, 2011. The government argued, first, that to the extent Ms.
Hughett challenged the merits of the government’s evaluation of her fitness for
duty, the determination that she was fit for duty (and not eligible for a disability
retirement) was nonjusticiable. Second, to the extent that plaintiff challenged the
procedural aspects of her discharge, the government argued that the administrative
record showed no procedural violations that would justify relief from this court.
On May 12, 2011, plaintiff, rather than cross-moving for judgment on the
administrative record, filed a motion to supplement the administrative record and
to stay proceedings.

      On June 23, 2011, the parties then jointly filed a motion to remand plaintiff’s
requests for relief to the AFBCMR, noting that the board had never had an
opportunity to consider Ms. Hughett’s challenge to her release from active duty.
The parties framed their request for remand in this manner:



      2
       / The court makes no findings of fact in this opinion.

                                               2
             To this time, Ms. Hughett has not petitioned the
             AFBCMR for relief; thus, a remand would afford the Air
             Force an opportunity in the first instance to apply all
             appropriate regulations to Ms. Hughett’s circumstances,
             and to make a determination whether the agency erred in
             releasing her from active duty. Upon remand, the
             AFBCMR will consider the documents that comprise the
             administrative record in this matter, as well as the
             additional documents that Ms. Hughett sought to add to
             the administrative record in her motion to supplement the
             administrative record. Accordingly, the AFBCMR would
             create a coherent and comprehensive record regarding
             Ms. Hughett’s claims . . . .

Jt. Mot. at 2 (footnoted omitted). The court granted the parties’ motion on June 30,
2011 and stayed proceedings during the remand to the AFBCMR.

      This court’s remand order adopted the specific instructions to the AFBCMR
requested by the parties, which are reproduced here in their entirety:

             (1) The Board is to afford Ms. Hughett the opportunity to
             initiate AFBCMR review by completing and filing a DD
             Form 149 (Application for Correction of Military
             Record), and to present in writing any arguments and
             evidence that might establish her entitlement to relief
             regarding her alleged release from active duty prior to
             final disposition of her disability case;

             (2) The Board is to afford Ms. Hughett any relief the
             AFBCMR determines she is entitled to, and to issue a
             decision explaining in detail the rationale supporting its
             final decision;

             (3) The court retains jurisdiction over this matter.

Order of June 30, 2011, at 2 (formatting altered). There was no language in the
court’s remand order indicating the court’s position on the merits of plaintiff’s
claims. The court’s only comment was that a remand to the AFBCMR was

                                          3
“appropriate in these circumstances.” Id.

       Ms. Hughett presented two alternative requests for relief to the AFBCMR.
The first was to be restored to active duty so as to permit a “fitness/disability
determination.” AFBCMR Remand Decision (Remand Dec.), at 1. The second
was to obtain a disability retirement as of March 20, 2009. Id. The Board granted
her the second alternative, ordering a correction of her records to show a 30%
combined disability rating for two health conditions and a retirement date of March
20, 2009 “by reason of physical disability.” Id. at 4, 6.

       In light of this relief, the parties informed the court that dismissal of the
instant case was warranted, because the Board “afford[ed] [Ms. Hughett] a
satisfactory disposition of her case.” Jt. Status Report of July 27, 2012, at 1.
Plaintiff filed a motion for voluntary dismissal, which was granted. Judgment was
entered on October 11, 2012. Plaintiff’s motion for attorney’s fees and costs was
filed on January 9, 2013, citing the Equal Access to Justice Act, 28 U.S.C. § 2412
(2006) (EAJA) as the relevant statutory authority. Defendant opposes plaintiff’s
motion.

                                   DISCUSSION

I.    Overview of EAJA

       EAJA is a “fee-shifting” statute. Hubbard v. United States, 480 F.3d 1327,
1333 (Fed. Cir. 2007). “A party that prevails against the United States in a civil
action is entitled, in certain circumstances, to an award of attorney’s fees, court
costs, and other expenses.” Melkonyan v. Sullivan, 501 U.S. 89, 91 (1991) (citing
28 U.S.C. § 2412). Certain criteria must be met by the applicant, including
“timeliness of the application,” id. at 103; not exceeding the maximum net worth
for individuals or corporations, see Bazalo v. West, 150 F.3d 1380, 1384 (Fed. Cir.
1998) (“The statute requires that the party seeking fees show that he is [financially]
eligible to receive an award under the statute.”); and “prevailing party” status, Rice
Servs., Ltd. v. United States, 405 F.3d 1017, 1025 (Fed. Cir. 2005).

      The United States Court of Appeals for the Federal Circuit has stated that

             [t]he EAJA statute provides that a trial court must award
             attorney’s fees where: (i) the claimant is a “prevailing

                                          4
             party”; (ii) the government’s position was not
             substantially justified; (iii) no “special circumstances
             make an award unjust”; and (iv) the fee application is
             timely submitted and supported by an itemized statement.

Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed. Cir. 2003) (citing 28 U.S.C.
§ 2412(d)(1)(A)-(B); Comm’r, INS v. Jean, 496 U.S. 154, 158 (1990)).

       “The EAJA applicant has the burden of proving he is a prevailing party.”
Davis v. Nicholson, 475 F.3d 1360, 1366 (Fed. Cir. 2007) (citing RAMCOR Servs.
Grp. v. United States, 185 F.3d 1286, 1288 (Fed. Cir. 1999)). The government,
however, bears the burden of proof when it raises the defense that its litigating
position in the controversy was “substantially justified.” Libas, 314 F.3d at 1365
(citations omitted). To carry this burden, the government’s position must have
“had a ‘reasonable basis in law and fact.’” RAMCOR, 185 F.3d at 1290 (quoting
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). To rule on the government’s
‘substantial justification’ defense, the trial court must “‘look at the entirety of the
government’s conduct.’” Id. (quoting Chiu v. United States, 948 F.2d 711, 715
(Fed. Cir. 1991)).

II.    Timeliness and Financial Eligibility

      Defendant does not contest either the timeliness of plaintiff’s EAJA
application or Ms. Hughett’s financial eligibility for an EAJA award. The court
issued its judgment on October 11, 2012 and plaintiff filed her EAJA application
on January 9, 2013. Ms. Hughett’s application is timely pursuant to 28 U.S.C.
§ 2412(d)(1)(B), (d)(2)(G). Plaintiff has also filed a Declaration of Net Worth
which evidences that Ms. Hughett is an eligible “party” under the statute. See Pl.’s
Mot. Att. 2 at 1; see also 28 U.S.C. § 2412(d)(2)(B). Thus, plaintiff’s EAJA
application satisfies two of the necessary criteria for an EAJA award.

III.   Prevailing Party

       A.    Controlling Precedent

       There is a wealth of authority discussing the “prevailing party” requirement
for an EAJA award, and there is no need to examine all of this precedent. Instead,
the court focuses primarily on controlling precedent which discusses the effect of a

                                           5
remand on a party’s claim that it fulfills the prevailing party requirement. The
seminal case in this circuit for that issue is Former Employees of Motorola
Ceramic Products v. United States, 336 F.3d 1360 (Fed. Cir. 2003) (Motorola).
Plaintiff endeavors to fit her case within the holding of Motorola. Pl.’s Reply at
2-3. As discussed infra, however, Motorola and its progeny clearly show that for
the purposes of EAJA Ms. Hughett is not a prevailing party in this lawsuit.

            1.     Motorola

      In Motorola, the Federal Circuit began its analysis of the prevailing party
issue with a discussion of Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598 (2001):

            In its recent decision in Buckhannon, the Supreme Court
            interpreted the phrase “prevailing party” . . . to exclude
            the so-called “catalyst” theory of recovery. Before
            Buckhannon, most circuits had interpreted “prevailing
            party” to include parties who “achieve[d] the desired
            result because the lawsuit brought about a voluntary
            change in the defendant’s conduct.” The Court rejected
            the “catalyst” theory. “A defendant’s voluntary change
            in conduct, although perhaps accomplishing what the
            plaintiff sought to achieve by the lawsuit, lacks the
            necessary judicial imprimatur on the change,” the Court
            held. The Court explained that the term “prevailing
            party” does not “authorize[ ] federal courts to award
            attorney’s fees to a plaintiff who, by simply filing a
            nonfrivolous but nonetheless potentially meritless lawsuit
            (it will never be determined), has reached the
            ‘sought-after destination’ without obtaining any judicial
            relief.” Rather, to be a prevailing party, one must
            “receive at least some relief on the merits,” which
            “alter[s] . . . the legal relationship of the parties.” Two
            examples of an alteration in the legal relationship
            between the parties were an enforceable judgment on the
            merits and a court-ordered consent decree.

Motorola, 336 F.3d at 1363-64 (citing Buckhannon, 532 U.S. at 601, 603, 605-06).

                                         6
This brief passage contains the essential concepts found in “prevailing party”
disputes in EAJA cases: the catalyst theory of recovery, voluntary changes in
government conduct, judicial imprimatur, at least some relief on the merits, an
alteration in the legal relationship of the parties, and enforceable judgments/court-
ordered consent decrees. In Motorola, the Federal Circuit applied these concepts
to the specific circumstance at issue in this case – whether a remand from a federal
court to a federal agency conveys prevailing party status on the plaintiff.

       The Motorola court noted that although “a remand order, at least in most
circumstances, does not constitute relief on the merits for the purposes of the
fee-shifting statutes,” id. at 1364, “[r]emands to administrative agencies are . . .
different . . . , and a remand [to an administrative agency] may constitute the
securing of relief on the merits,” id. at 1365. The Federal Circuit distinguished
between remands where the court retains jurisdiction while the administrative
agency considers the plaintiff’s demand, and those cases where the court does not
retain jurisdiction over the dispute. Id. at 1366. Where, as here, jurisdiction is
retained during the remand proceedings, “the claimant is a prevailing party only if
it succeeds before the agency.” Id.

       The Motorola opinion contains other pronouncements that are relevant to the
instant dispute. For example, the Federal Circuit stated that “[w]e do not hold that
every remand constitutes a grant of relief on the merits.” Id. Two types of
remands, in particular, do not convey prevailing party status: a remand to consider
the effect of intervening legislation, and a remand to consider newly discovered
evidence. Id. (citing Vaughn v. Principi, 336 F.3d 1351, 1355 (Fed. Cir. 2003)).
In contrast, “where the plaintiff secures a remand requiring further agency
proceedings because of alleged error by the agency, the plaintiff qualifies as a
prevailing party . . . when successful in the remand proceedings where there has
been a retention of jurisdiction.” Id. Finally, the Federal Circuit held that the fact
that the government consents to a remand order does not deprive the plaintiff of
prevailing party status. Id. at 1367.

             2.    Other Binding Precedent

       There are several Federal Circuit decisions that have expanded upon the
concepts discussed in Motorola. Although it is better not to conflate the two
distinct types of remand identified in Motorola, i.e., remands where the court
retains jurisdiction and remands where the court does not retain jurisdiction, both

                                          7
of these scenarios may trigger an EAJA dispute and provoke an inquiry into the
nature of the remand in question. Because the nature of the remand is a
component of the inquiry into a plaintiff’s prevailing party status, it is plaintiff’s
burden to show that the remand was of a type that confers prevailing party status.
See, e.g., Davis, 475 F.3d at 1366 (citing RAMCOR, 185 F.3d at 1288). As
previously noted, a plaintiff who obtains a remand to an administrative agency
“because of alleged error by the agency” may be entitled to an EAJA award.
Motorola, 336 F.3d at 1366 (emphasis added).

       Thus, an important question in these “prevailing party” disputes is whether
the remand order is purely procedural, or, instead, the remand is intended to
address a government error identified by the court or conceded by the government.
See, e.g., Akers v. Nicholson, 409 F.3d 1356, 1359 (Fed. Cir. 2005) (finding in that
case that the claimants were not prevailing parties because the “parties simply
agreed to a procedural remand,” which is merely an “‘opportunity for further
adjudication’” (quoting Vaughn, 336 F.3d at 1356)). A procedural remand does
not convey prevailing party status because such a remand does not result from or
immediately lead to judicial action on the merits. Id. As a general rule, if the court
issuing the remand order does not identify or acknowledge an error by the
administrative agency, the remand is procedural in nature and does not convey
prevailing party status upon the claimant. See, e.g., Thompson v. Shinseki, 682
F.3d 1377, 1382 (Fed. Cir. 2012) (stating that only remands based on “actual or
perceived administrative error” convey prevailing party status for EAJA purposes)
(citing Davis, 475 F.3d at 1364); Ward v. U.S. Postal Serv., 672 F.3d 1294, 1299
(Fed. Cir. 2012) (stating that “remands not rooted in agency error do not result in
prevailing party status” under EAJA); Gurley v. Peake, 528 F.3d 1322, 1328 (Fed.
Cir. 2008) (holding that a remand for “judicial economy rather than administrative
error” does not convey prevailing party status).

       Although the EAJA dispute in Rice Services did not involve a remand, that
decision provides further guidance for the determination of prevailing party status:
“[I]n order to demonstrate that it is a ‘prevailing party,’ an EAJA applicant must
show that it obtained an enforceable judgment on the merits or a court-ordered
consent decree that materially altered the legal relationship between the parties, or
the equivalent of either of those.” 405 F.3d at 1025 (citations omitted). In that
case, the Federal Circuit considered whether a court order issued at the conclusion
of a bid protest “carried sufficient judicial imprimatur to materially alter the legal
relationship between” the plaintiff and the government. Id. at 1027. Because the

                                           8
government acted unilaterally and voluntarily to restructure the procurement
challenged by the plaintiff, the trial court was able to dismiss the bid protest
without reaching the merits. Id. In these circumstances, there was no “merits
adjudication” and the plaintiff was not a prevailing party for EAJA purposes. Id. at
1027-28. A remand order, under Rice Services, must “carr[y] sufficient judicial
imprimatur to materially alter the legal relationship between” the plaintiff and the
government for that order to confer prevailing party status upon the plaintiff. Id. at
1027.

      B.     Ms. Hughett Is Not a Prevailing Party

       Applying these precedential decisions to the case at hand, the remand order
issued by this court on June 30, 2011 was purely procedural, because that order
was issued to promote judicial economy in this case rather than to address
administrative error. Plaintiff contends, nonetheless, that the remand to the
AFBCMR fits within the category of remands discussed in Motorola, where a
court retains jurisdiction and the plaintiff succeeds before the administrative
agency. Pl.’s Reply at 2-3. Although plaintiff is correct as to the category of
remand, i.e., a remand where the court retains jurisdiction over the plaintiff’s
claims, plaintiff misconstrues the nature and results of the remand to the
AFBCMR.

       In this case there was no administrative error identified by the court or
conceded by the Air Force. In Motorola, in contrast, the Federal Circuit
specifically found that administrative error had been conceded by the government.
See 336 F.3d at 1362 (noting that the “parties . . . agreed that the Department had
erred” and consented to a remand); see also id. at 1367 (describing the remand in
that case as “a remand granting the party relief on the merits”). The remand order
of June 30, 2011 was not rooted in administrative error and did not provide Ms.
Hughett relief on the merits. Thus, neither the nature nor the outcome of the
remand in this case, according to the binding precedent discussed supra, conveys
prevailing party status upon Ms. Hughett.

       Plaintiff’s only substantive argument that attempts to address the
overwhelming weight of authority discussing procedural remands in the context of
the prevailing party issue is plaintiff’s conjecture that “the remand was secured to
address the government’s filing of an incomplete administrative record.” Pl.’s
Reply at 3. No caselaw is cited in support of this proposition. Instead, plaintiff

                                          9
argues that the remand order “implicitly dealt with” the issue of plaintiff’s motion
to supplement the administrative record. Id. This argument fails as a matter of fact
and as a matter of law.

       Plaintiff’s motion to supplement the administrative record sought to add
documents to the administrative record in this case. Defendant agreed that these
additional documents should be included in the record before the AFBCMR on
remand. See Jt. Mot. at 2 (stating that “the AFBCMR will consider the documents
that comprise the administrative record in this matter, as well as the additional
documents that Ms. Hughett sought to add to the administrative record in her
motion to supplement the administrative record”). The court noted this procedural
development in its remand order. In essence, defendant voluntarily agreed to the
proposed supplement to the administrative record before the court acted to remand
this case to the AFBCMR. Nothing in the remand order suggests that this court
intended the AFBCMR to address gaps in the administrative record in the case
before the court. The issue of supplemental documentation to be presented to the
AFBCMR had already been addressed by defendant to plaintiff’s satisfaction. See
Jt. Mot. at 2 n.1.

       Even if plaintiff’s conjecture regarding the intent of the remand order were
not contradicted by the record of this litigation, the court notes that it is plaintiff’s
burden to show that the remand order was intended to address administrative error.
See, e.g., Davis, 475 F.3d at 1365-66. Plaintiff’s argument regarding the implied
connection between the remand order and plaintiff’s motion to supplement the
administrative record fails to meet this burden. As the Federal Circuit stated in
Davis,

             Where there has been a remand to an administrative
             agency without a judicial finding of administrative error
             or a concession of such error by the agency, the default
             rule is that the remand is not based on administrative
             error for EAJA purposes under the Motorola test. This
             default rule places the burden 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 not say so.

Id. at 1366. Here, the court stayed proceedings for a procedural remand and

                                           10
plaintiff has not met her burden to show that the remand was intended to address
any administrative error identified by the court or conceded by the government.

       Finally, the court notes that even if plaintiff had met her burden to show that
the remand was intended to address supplementation of the administrative record,
such a remand does not convey prevailing party status for EAJA purposes. First,
remands that do not address administrative error but which merely provide another
opportunity for adjudication are insufficient to convey prevailing party status on a
plaintiff. E.g., Akers, 409 F.3d at 1359. Second, remands which are intended to
bring newly discovered evidence before an administrative forum, but which are not
founded on administrative error, are also insufficient for EAJA purposes. E.g.,
Vaughn, 336 F.3d at 1355-56. Third, this court has held that “technical victories”
on preliminary issues such as standing are not enough to convey prevailing party
status under EAJA. Knowledge Connections, Inc. v. United States, 76 Fed. Cl.
612, 617 (2007) (citing Farrar v. Hobby, 506 U.S. 103, 113 (1992); Texas State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989); Hewitt v.
Helms, 482 U.S. 755, 760 (1987); Hanrahan v. Hampton, 446 U.S. 754, 759
(1980)). Similarly, achieving supplementation of an administrative record is a
technical victory that is insufficient to make Ms. Hughett a prevailing party in this
suit. For all of these reasons, even if the remand were founded on plaintiff’s
request to supplement the administrative record, a remand of that nature does not
convey prevailing party status for EAJA purposes.

       The court concludes that the remand to the AFBCMR did not convey
prevailing party status on Ms. Hughett. Absent prevailing party status, a plaintiff
may not recover attorney’s fees and costs under EAJA. 28 U.S.C. § 2412(d)(1)(A).
Plaintiff’s motion for attorney’s fees and costs must be denied.

IV.   Substantial Justification

        Although the court has found that Ms. Hughett is not a prevailing party for
EAJA purposes, the court will also briefly address the government’s contention
that its litigating position was substantially justified. The court notes, at the outset,
that this litigation terminated before this court could reach the merits of plaintiff’s
claims. Nothing in the court’s discussion of the government’s litigating position
should be construed as commentary upon the merits of plaintiff’s claims.

      The court turns first to the conduct of the Air Force challenged in this suit –

                                           11
Ms. Hughett’s release from active duty and her discharge. The AFBCMR found
that in the months leading up to her discharge Ms. Hughett was the victim of
injustice with regard to the evaluation of her disabling conditions. Remand Dec. at
5. Although Ms. Hughett was granted correction of her military records to
evidence a disability retirement, the AFBCMR did not cite a single violation of law
or procedure in the Air Force’s decision to release Ms. Hughett from active duty
and to discharge her without a disability retirement.

       Defendant correctly notes that the AFBCMR’s decision was founded not on
legal error, but on injustice. Def.’s Opp. at 10-11. Defendant carefully
distinguishes between remedial measures based on errors of law, as compared to
relief granted to correct injustice. Id. Although plaintiff argues that the correction
of injustice by the AFBCMR signifies that Ms. Hughett’s discharge had no
reasonable basis in fact and law, Pl.’s Reply at 5, the court finds nothing in the
decision of the AFBCMR to support this view.

       Defendant has clearly articulated the government’s arguments that there was
a reasonable basis in law and fact for the Air Force’s conduct. See Def.’s Opp. at
7-10. These arguments are entirely unrebutted by plaintiff. Instead, plaintiff relies
solely on the result achieved before the AFBCMR to impugn the reasonableness of
Ms. Hughett’s release from active duty and her discharge. See Pl.’s Reply at 5
(stating that “correction of her records . . . demonstrates that the government
position in not retiring the plaintiff at the time of her separation was not
substantially justified”). In light of the fact that plaintiff has pointed to no legal
error on the part of the Air Force, defendant’s arguments must prevail on this issue;
the court concludes that Ms. Hughett’s release from active duty and her discharge
had a reasonable basis in fact and law. See RAMCOR, 185 F.3d at 1290. Thus,
this aspect of the government’s conduct was substantially justified.

       Turning to government conduct in the litigation before this court, defendant
responded to the complaint with a motion to dismiss and for judgment upon the
administrative record. The court has reviewed defendant’s motion and finds that it
is adequately supported by an analysis of the relevant facts and legal arguments
that are reasonable. Plaintiff again argues that the motion to dismiss was
unreasonable in light of the relief afforded Ms. Hughett by the AFBCMR. Pl.’s
Reply at 4-5. The court credits defendant’s analysis of the strength of its
arguments for dismissal, Def.’s Opp. at 7-10, which are entirely unrebutted. The
court notes, again, that the AFBCMR decision relied upon by plaintiff cited no

                                          12
legal errors by the Air Force. As for defendant’s acquiescence to supplementation
of the administrative record and defendant’s participation in a joint motion to
request a remand to the AFBCMR, both of these decisions appear to the court to be
eminently reasonable, particularly in light of the relief afforded plaintiff. The court
therefore concludes that defendant’s litigating position before this court was, in its
entirety, substantially justified.

        Although plaintiff has attempted to use the AFBCMR decision in Ms.
Hughett’s favor to discredit the government’s conduct in this case, the court notes
that the reasonableness of the government’s litigating position and conduct is an
entirely separate issue from any judgment rendered on the merits of a plaintiff’s
claims. See, e.g., Luciano Pisoni Fabbrica Accessori Instrumenti Musicali v.
United States, 837 F.2d 465, 467 (Fed. Cir. 1988) (“The decision on an award of
attorney fees is a judgment independent of the result on the merits, and is reached
by examination of the government’s position and conduct through the EAJA
‘prism’ . . . .”) (citation omitted). Here, while it is not irrelevant that the AFBCMR
granted plaintiff correction of her military records, the result obtained upon remand
does not, in itself, suggest that the government’s position was not substantially
justified. The court has thoroughly examined the decision of the AFBCMR for any
indication that the government’s conduct did not have a reasonable basis in fact
and law. As stated supra, the Board’s decision contains no indication that the Air
Force’s conduct was not substantially justified.

       In this case the government has met its burden to show that its conduct was
substantially justified. Cf. Pierce, 487 U.S. at 569 (“Conceivably, the Government
could take a position that is not substantially justified, yet win; even more likely, it
could take a position that is substantially justified, yet lose.”). As a result, plaintiff
may not recover attorney’s fees and costs pursuant to the terms of EAJA. 28
U.S.C. § 2412(d)(1)(A). Thus, even if the court erred as to its determination that
Ms. Hughett was not a prevailing party in this suit, plaintiff’s motion for attorney’s
fees and costs would necessarily be denied because the government’s position in
this case was substantially justified.3

                                       CONCLUSION


       3
        / The court need not reach defendant’s argument that special circumstances militate
against an EAJA award in this case or defendant’s challenge to a portion of the attorney’s fees
requested by Ms. Hughett.

                                               13
Accordingly, it is hereby ORDERED that:

(1)   Plaintiff’s Motion for Attorneys’ Fees and Costs Under the Equal
      Access to Justice Act, filed January 9, 2013 and supplemented on
      January 10, 2013, is DENIED;

(2)   The Clerk’s Office is directed to ENTER judgment for defendant as
      to plaintiff’s application for attorney’s fees and costs; and,

(2)   Each party shall bear its own costs.


                                       /s/Lynn J. Bush
                                       LYNN J. BUSH
                                       Judge




                                  14
