                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-1998

Morgan v. Perry
Precedential or Non-Precedential:

Docket 96-3314




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Recommended Citation
"Morgan v. Perry" (1998). 1998 Decisions. Paper 93.
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Filed April 27, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-3314

TERENCE D. MORGAN,

       Appellant

v.

WILLIAM PERRY, in his capacity as Secretary of Defense;
JOHN DALTON, in his capacity as Secretary of the Navy;
GENERAL C. E. MUNDY, in his capacity as Commandant
of the Marine Corps; BRIGADIER GENERAL J.W. CLIMP,
in his capacity as Commanding General, Marine Corps
Recruit Depot, Eastern Recruiting Region, Parris Island.

On Appeal from the United States District Court
for the Western District of Pennsylvania
(Civil No. 91-1064)

Argued: April 30, 1997

Before: MANSMANN and McKEE, Circuit Judges, and
VANARTSDALEN, Senior District Judge*

(Opinion Filed: April 27, 1998)

       JAMES B. LIEBER, ESQ. (Argued)
       M. JEAN CLICKNER, ESQ.
       Lieber & Hammer, P.C.
       5528 Walnut Street
       Pittsburgh, PA 15232
       Attorneys for Appellant
_________________________________________________________________

*The Honorable Donald W. VanArtsdalen, United States District Court
Judge for the Eastern District of Pennsylvania, sitting by designation.
       FREDERICK W. THIEMAN, ESQ.
       United States Attorney
       BONNIE R. SCHLUETER, ESQ.
       Assistant U.S. Attorney
       ALBERT W. SCHOLLAERT, ESQ.
        (Argued)
       Assistant U.S. Attorney
       633 U.S. Post Office & Courthouse
       Pittsburgh, PA 15219
       Attorneys for Appellees

       SAMUEL J. CORDES, ESQ.
       MICHAEL A. MURPHY, ESQ.
       Ogg, Jones, Cordes & Igenlzi, LLP
       245 Fort Pitt Boulevard
       Pittsburgh, PA 15222
       Attorneys for Amicus, The Allegheny
       County Bar Association

       JOHN PUSHINSKY, ESQ.
       1808 Law & Finance Building
       Pittsburgh, PA 15219

       WITOLD J. WALCZAK, ESQ.
       American Civil Liberties Union,
       Greater Pittsburgh Chapter
       237 Oakland Avenue
       Pittsburgh, PA 15213
       Attorneys for Amicus, The American
       Civil Liberties Union of PA

OPINION OF THE COURT

McKEE, Circuit Judge

We are asked to determine whether the district court
abused its discretion in denying attorney's fees and costs to
a "prevailing party" under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. S 2412. Terence D. Morgan, a former
Master Sergeant in the United States Marine Corps,filed a
civil action seeking declaratory and injunctive relief against
the defendants for alleged violations of his constitutional
rights.

                               2
After a non-jury trial, the district court found that all but
one of his claims were without merit, and awarded Morgan
declaratory and equitable relief based upon the single
meritorious claim. However, in a subsequent fee application
under the EAJA, the court held that the government's
position in defending Morgan's due process claim was
substantially justified and denied Morgan's claim for
attorney's fees and costs. This appeal followed. For the
reasons that follow, we will affirm.

I. FACTUAL BACKGROUND

The circumstances leading up to this suit are as complex
as they are intricate. The district court correctly stated that
"[t]he factual allegations of plaintiff's complaint are too
lengthy to summarize. However, the essence of the
complaint is a wide-ranging conspiracy among various
officers of the United States Marine Corps to `ruin
[plaintiff's] reputation.' " Dist. Ct. EAJA Op. at 2. The
government's investigation of Morgan centered upon
allegations of recruiting fraud; however, our analysis must
focus on the agency decision that resulted in this appeal.
That decision resulted from a military prosecutor's
assertion that he had a "gray book" that purportedly
contained evidence that Morgan was involved in illegal
gambling. In order to understand the significance of the
"gray book" and its impact on Morgan's claim for costs and
fees under the EJAJ it is necessary to detail the events
leading up to this appeal and the structure of the Marine
Corps' recruiting efforts at some length.1

A.

Terence D. Morgan joined the United States Marine Corps
in September, 1973. After receiving various promotions, he
was ordered to the Greensburg substation of Pittsburgh,
Pennsylvania Recruiting Station ("RS") in June of 1980. RS
Pittsburgh is part of the 4th Marine Corps District,
_________________________________________________________________

1. Morgan did not appeal from the district court's decision on the merits
of his claim. Consequently, the recitation of the facts is taken from the
district court's merits opinion.

                               3
headquartered in Philadelphia, Pennsylvania. The 4th
Marine Corps District in turn is part of the Eastern
Recruiting Region, which is headquartered at Parris Island,
South Carolina. Major General Jarvis D. Lynch, Jr., became
the Commanding General of the Eastern Recruiting Region
and Parris Island on October 5, 1988. Colonel David A.
Jones was then the Director of the 4th Marine Corps
District, which encompasses nine recruiting stations in
seven states.

A recruiting station is operated by a Command Group.
During the periods relevant to this appeal, Major George A.
Eberhart, Jr., was the Commanding Officer. A recruiting
station is organized around recruiting substations, which
are recruiting facilities manned by one or more full-time
recruiters. A recruiting substation is under the direct
operational and administrative control of the recruiting
station and is supervised by a Non-Commissioned Officer in
Charge ("NCOIC"). A Command Group's main concern is
ensuring that the recruiting station makes its "mission",
i.e., procures a specified number of new recruits who are
willing and eligible to enlist, and to ship a specified number
of these new recruits for basic training. Recruiters are rated
largely by the number of recruits they enlist in the Marines.

Normally, an applicant must have a high school diploma
to enlist in the Marine Corps. A General Equivalency
Diploma ("GED") is not acceptable. Recruiters are permitted
to place eligible recruits who are willing to ship to basic
training within 365 days of signing the enlistment contract
into the Delay Entry Program ("DEP"). High school seniors
who anticipate graduating within one year are also
permitted to sign enlistment contracts and enter the DEP
pool. These "poolees" sign a contract evidencing their intent
to be subject to the Uniform Code of Military Justice
("UCMJ"). In addition, people with temporary medical
conditions that preclude immediate shipment for basic
training, and people with other non-permanent
disqualifications, are allowed to sign enlistment contracts
and enter the DEP pool. A large DEP pool enhances a
recruiting station's ability to meet its monthly shipping
mission. A DEP pool containing poolees who are not
qualified to join the Corps for some reason, such as the

                               4
lack of a high school diploma or a disqualifying medical
condition, is referred to as a "dirty pool".

A recruiter prepares a package for each "poolee"
including inter alia, a high school diploma, social security
card, birth certificate and medical form. Recruit packages
are the direct responsibility of the individual recruiter, the
NCOIC of the recruiting substation, the Commanding
Officer, the Operations Officer and the "MEPS" liaison.2

Morgan was selected "Rookie Recruiter of the Year" after
his first year of recruiting duty in 1983, and promoted to
the rank of NCOIC of the Greensburg substation of RS
Pittsburgh. In 1984, he was named "Non-Commissioned
Officer (`NC0') of the Year." In late 1985, Morgan was
promoted to the rank of Assistant Recruiting Instructor for
RS Pittsburgh. Master Sergeant ("MSG") Eugene Zuro was
then the Recruiting Instructor of RS Pittsburgh; however,
Morgan replaced him in January of 1986. The Recruiting
Instructor is the most senior professional recruiter in a
recruiting station, but need not be the most senior NCO
within the recruiting station. The Recruiting Instructor
travels throughout the recruiting station to train recruiters
in sales techniques and the completion of paperwork, and
provides assistance to recruiters who are having trouble
making "mission." For our purposes, it is important to note
that the Recruiting Instructor has no duty to verify recruit
packages.

B.

In 1984 and 1985, RS Pittsburgh ranked first in the
nation in recruiting. It was then under the command of
Major J. P. Walsh. In 1986, Major Eberhart became the
Commanding Officer and he was determined to continue
_________________________________________________________________

2. "MEPS" is the abbreviation for Military Entrance Processing System,
which is a service shared by all branches of the military that recruit
applicants. It conducts medical exams, administers tests and otherwise
processes applicants. The MEPS liaison is the quality control person for
the Commanding Officer of a recruiting station. He or she is not a
member of the Command Group and does not have to make "mission".
Rather, the MEPS liaison's prime concern is to ensure adherence to
military regulations. Dist. Ct. Merits Opn. at 6.

                               5
that success. This created tremendous pressure to"make
mission."

Despite Eberhart's determination to continue the
Recruiting Station's success, RS Pittsburgh barely made its
mission in September, 1988, and by October 1, 1988, RS
Pittsburgh was in serious trouble. In response to the
decreasing number of recruits, the station began enlisting
and shipping qualified recruits to Parris Island for basic
training within 30 days of their enrollment. This procedure
was known as "direct ship mode." However, it is difficult for
a recruiting station to meet its monthly mission by
operating in "direct ship mode."

Morgan began inspecting recruit packages that had been
prepared at RS Pittsburgh and he discovered that 350
documents were missing from those packages, including
high school diploma verifications.3 The Marine Corps has
strict regulations regarding education verification, and
recruiters are required to obtain a high school counselor's
signature or a school seal on a copy of the applicant's
transcript or diploma before an applicant is processed for
shipping to Parris Island. The large number of missing
documents caused Morgan to ask Eberhart to conduct an
inspection, but Eberhart merely responded by assuring
Morgan that he would "take care of [the recruiter in
question]," and refused to make an inspection.

Despite Eberhart's assurances, Morgan called Zuro, the
former Recruiting Instructor of RS Pittsburgh, and a
member of the Contact Team for the 4th Marine Corps
District.4 Morgan told Zuro that RS Pittsburgh was in
"direct ship" mode; that documents were missing from
recruit packages; that Eberhart was submitting false
_________________________________________________________________

3. Testimony at trial established that all recruiting stations have
documents missing from recruit packages. However, it was unusual to
have 300 to 400 missing documents unless the size of the DEP pool was
very large.

4. Contact Teams are comprised of a small group of individuals who are
experts in the field of recruiting. The Team provides guidance to
recruiting stations and is required to visit each recruiting station twice
a year. They conduct investigations, and also provide guidance. Dist. Ct.
Merits Opn. at 10, n.9.

                               6
information to the 4th Marine Corps District concerning the
number of DEP pool discharges and the need for direct ship
applicants; and that he was having serious arguments with
Eberhart. Zuro told Morgan that he would visit RS
Pittsburgh at the end of October, 1988, which was
apparently the Contact Team's next regularly scheduled
visit to RS Pittsburgh.

C.

At the end of October, 1988, the Contact Team visited RS
Pittsburgh. Morgan and First Lieutenant Brown, the
Operations Officer of RS Pittsburgh, compiled a list of
pending DEP pool discharges, missing documents and
other problems. Morgan informed the Team of numerous
improprieties and/or problems, including Eberhart's refusal
to discipline recruiters, Eberhart's use of threats to
enhance recruiting and his practice of requiring that
recruiters be in their offices from 6:00 a.m. to 11:00 p.m.
Zuro responded by telling Morgan that the Contact Team
would not conduct an inspection of RS Pittsburgh during
the visit. Zuro apparently believed it was more important to
provide additional training.

On November 1, 1988, Captain Hoffman, the officer in
charge of the Contact Team, prepared a memorandum for
Colonel David A. Jones, Director of the 4th Marine Corps
District, concerning the Contact Team's October visit to RS
Pittsburgh. The memo discussed the DEP pool problems at
RS Pittsburgh and described the training that was provided
by the Contact Team. A reorganization of the structure of
the substations of RS Pittsburgh was "highly recommended
to avoid further turmoil and maximize prospecting." In early
November, 1988, Colonel Jones called Eberhart to discuss
his concern about the number of discharges in the DEP
pool. Eberhart acknowledged that he had to take some
discharges, but said that the DEP pool would be"cleaned
up" in the next few months.

Nevertheless, Colonel Jones remained concerned about
the problems in RS Pittsburgh and sent Colonel
Niewenhous, Executive Officer of the 4th Marine Corps
District, to talk to Eberhart. Niewenhous met with

                               7
Eberhart, but Eberhart vehemently denied that there were
problems in RS Pittsburgh.

When General Lynch became the Commanding General of
the Eastern Recruiting Region and Parris Island in early
October, 1988, he had no experience in recruiting, and he
requested a briefing on the subject. He subsequently
received, and reviewed, a detailed briefing, but was not sure
that the problems at RS Pittsburgh were caused by
misconduct or ineptitude. Accordingly, he ordered Colonel
C.R. Casey, his Deputy Chief of Staff for Recruiting, to
investigate the situation and remedy it. The ensuing
investigation stemmed solely from the detailed briefing
General Lynch had received from his staff and was totally
unrelated to Morgan's complaints about missing
documents, and the high rate of discharges from the DEP
pool maintained by RS Pittsburgh. In fact, Lynch did not
know Morgan and had never been informed about Morgan's
complaints.

D.

About the same time that Lynch was being briefed,
George Sens, a new recruit from RS Pittsburgh, was
shipped to Parris Island for basic training. After he
reported, Sens admitted that he had a bleeding ulcer. That
medical condition should have precluded his enlistment in
the Marines. Sens said that he had informed his recruiter
of his medical condition, and had been told not to tell the
doctors at Parris Island. Based on Sens' statement, other
recruits who had been shipped for basic training from RS
Pittsburgh were interviewed. During those interviews,
approximately 80 recruits made allegations of recruiting
misconduct at RS Pittsburgh.

On Friday, January 27, 1989, Colonel Jones, Director of
the 4th Marine Corps District, received a telephone call
from Colonel Casey, General Lynch's Deputy Chief of Staff
for Recruiting, regarding the allegations of recruiting
misconduct by RS Pittsburgh's recruiters. Jones was
instructed to send out a team to investigate, and, on
Saturday, January 28, 1989, he assembled an investigating
team. The Senior Investigating Officer was Lieutenant

                               8
Colonel John Spencer Evans, and the team included
Captain D.J. Koleos, a lawyer who was assigned to provide
legal advice to the investigating team. Koleos was Deputy
Staff Judge Advocate for the Eastern Recruiting Region, and
it is his actions that would later be the basis for the relief
the district court afforded Morgan.

Lieutenant Colonel Evans team began its investigation in
Pittsburgh on the morning of Monday, January 30, 1989.
Captain Evans,5 who was a member of Lieutenant Colonel
Evans investigation team, read each individual who was
interviewed, his or her rights under Article 31 of the UCMJ,
10 U.S.C. S 831. Those rights are similar to Miranda
warnings. No allegations of recruiting misconduct had been
made against Morgan prior to the Evans investigation.
Indeed, Morgan was initially elated because he assumed the
investigation was in response to his complaints.

However, an applicant named Michael Lockwood was
processed at RS Pittsburgh during Evans' investigation.
When Lockwood was confronted with a false high school
diploma that was part of his recruit package, he said that
Morgan had procured the false diploma for him. Lockwood
then identified Morgan's picture from a group photograph of
the members of RS Pittsburgh. He also identified Morgan in
Colonel Evans' presence, and stated that Morgan was the
Marine who had sold him the false diploma.

Morgan denied this allegation and told Colonel Evans
that he had never seen Lockwood before. Another member
of the investigating team, Master Sergeant Cawman, then
accused Morgan of having a printing press in his basement.
Morgan said that allegation was ludicrous, and requested
legal counsel. Captain Evans responded by telling Morgan
that he was a legal advisor. Morgan then talked to Captain
Evans for 30 to 45 minutes.6 During that conversation
_________________________________________________________________

5. There are two officers named Evans who figure in this case.
Lieutenant Colonel John Spenser Evans was the head of the
investigating team and Captain John E. Evans was a member of that
team. To avoid any possible confusion, we will indicate each Evans by
rank when reference is made to him.

6. Captain Evans was not an attorney. Apparently, he served as an
advisor to the Commanding Officer in the area of personnel

                               9
Morgan told Evans that he never met Lockwood and that he
had not created any false high school diplomas. On
February 2, 1989, Morgan made a written statement to that
effect in response to a request from Evans that he do so.
Morgan was not provided independent legal counsel.

E.

Colonel Evans completed his investigation and prepared
a report for Colonel Jones. Evans' report concluded that
administrative procedures were not in place at RS
Pittsburgh to insure that quality control of recruits received
as much emphasis as recruiting and shipping them. The
report alluded to the existence of various factions of
"cliques" at RS Pittsburgh, concluded that Morgan was the
leader of one of these "cliques," and that his "clique"
appeared to be at the center of the bulk of recruiter
malpractice there. Colonel Evans opined that Morgan, "[i]n
his capacity as the senior expert on enlisted recruiting, . . .
bears a tremendous amount of responsibility for the
problems in Pittsburgh." Although Colonel Evans was not
personally convinced that Morgan had made a false
diploma as alleged by Lockwood, he did not doubt that
Morgan knew that diplomas and other documents were
being falsified. The report rejected Morgan's claim that he
lacked the training and experience to identify and deal with
the problems in RS Pittsburgh.

Colonel Evans recommended various forms of discipline
for 29 Marines at RS Pittsburgh, including members of the
Command Group and recruiters. The recommended
discipline ranged from nonjudicial punishment ("NJP")7
_________________________________________________________________

administration, and advised the Commanding Officer on legal matters.
Evans claims that he never represented himself to Morgan as an
attorney. However, Morgan's testimony to the contrary was corroborated
by other recruiters of RS Pittsburgh who also testified that Captain
Evans led them to believe that he was acting as their legal counsel
during the investigation. Moreover, although the district court did not
make a specific finding of fact as to this conflict in the testimony, it
is
clear from the court's opinion that it credited Morgan's testimony on this
point despite Evans' denial. See Dist. Ct. Opn. at 16-17, n.19.
7. Nonjudicial punishment is governed by Article 15 of the UCMJ, 10
U.S.C. S 815. It is a summary procedure designed to allow a commander
to quickly impose minor punishment for minor offenses committed by
members of his command. See generally, DAVID A. SCHLUETER, MILITARY
CRIMINAL
JUSTICE: PRACTICE AND PROCEDURE, SS 3-1 to 3-8 (4th ed. 1996).

                               10
such as letters of caution, to summary8 and special court-
martials.9 Evans also recommended that Major Eberhart be
relieved of duty despite Evans' belief that Eberhart did not
intentionally direct the enlistment of any unqualified
applicant into the Marine Corps.

Evans' report contained findings of fact with respect to
members of the Command Group and the recruiters for
whom Evans recommended disciplinary action. Colonel
Evans found that Morgan was involved in the procurement
of false diplomas for several recruits. The allegations as to
one recruit, Wayne Bellew, were corroborated by Bellew's
civilian wife, Tracey. Another recruiter stated that Morgan
was responsible for the improper education verification for
a recruit named Angela Robinson. Evans also found that
Morgan improperly administered the Armed Services
Vocational Aptitude Battery test ("ASVAB") to two Marine
Corps personnel and that he routinely used his
government-owned car for personal business. The report
noted that Morgan denied all of the allegations.

General Lynch was not satisfied with the report because
it did not address the failure of the Command Group of RS
Pittsburgh to fulfill its responsibilities. Consequently, he
directed his Deputy Chief of Staff for Recruiting, Colonel
Casey, to go to RS Pittsburgh to conduct a further
investigation focusing on the Command Group. The Casey
investigation team conducted numerous interviews at RS
Pittsburgh, and issued a report noting the numerous
allegations of misconduct against persons in the recruiting
station. However, most were not corroborated by
independent facts, and, typically, the allegations were
_________________________________________________________________

8. A summary court-martial is designed to dispose of minor offenses in
a simplified proceeding. SCHLUETER, supra note 9, S 1-8(D)(1). The
maximum punishment that may be imposed includes confinement at
hard labor for one month, forfeiture of two-thirds of one month's pay for
one month, hard labor without confinement for 45 days or restriction for
two months. 10 U.S.C. S 820.

9. A special court-martial is the intermediate court in the military's
judicial structure. 10 U.S.C. S 816; SCHLUETER, supra note 9, S 1-8(D)(2).
Maximum punishments include confinement at hard labor for 6 months
and forfeiture of two-thirds of one month's pay for 6 months. A bad
conduct discharge may also be assessed. 10 U.S.C.S 819.

                               11
refuted by the alleged perpetrator. To further complicate the
situation, the accusers were often biased. Accordingly,
Casey resolved uncorroborated allegations in favor of the
accused. Though there was evidence of criminal conduct
and dereliction of duty, Colonel Casey was convinced that
the problems in RS Pittsburgh were the result of leadership
failure.

Casey did, however, believe that Morgan deliberately
helped recruiters falsely enlist high school juniors into the
DEP; that Morgan created high school diplomas for the
purpose of unlawfully enlisting unqualified applicants into
the Marine Corps; that Morgan solicited a man named
Jerry L. Williams to join in his criminal enterprise; that
Morgan communicated a threat to Williams; and that
Morgan gave a false statement to Colonel Evans during his
investigation of RS Pittsburgh. Based on his findings,
Colonel Casey recommended that Morgan's alleged
recruiting misconduct be investigated pursuant to Article
32 of the UCMJ, 10 U.S.C. S 832, the military counterpart
to a civilian grand jury.

Jerry L. Williams was a civilian who owned a printing
shop called Precision Printing in Bedford, Pennsylvania.
During the Evans investigation, several recruiters alleged
that the services of Precision Printing had been utilized to
make false diplomas for certain recruiters. Because these
allegations were unsubstantiated in the Evans'
investigation, Major Kelley, the legal advisor for the Casey
investigation, directed Captain Koleos to contact Williams.
Koleos did so and prepared a "Results of Interview of Mr.
Jerry Williams, Owner of Precision Printing" which was
made part of Colonel Casey's report.

In his report, Koleos stated that Williams accused
Morgan of coercing him to create fraudulent documents for
recruits who were not qualified for the Marine Corps.
According to Koleos' report, Williams said that Morgan paid
him to alter the names on original diplomas. Koleos' report
stated that Williams, his wife and other employees could
positively identify Morgan and the corporal who
accompanied him when Morgan visited Williams' print shop.10
_________________________________________________________________

10. At trial, Koleos contradicted the information contained in his
"Results". Koleos testified that Williams could not remember the name of

                               12
F.

When Morgan learned of these allegations he called
Captain Louis J. Puleo, a defense attorney at Parris Island.
In March, 1989, Puleo assigned himself to be Morgan's
defense counsel. On March 22, 1989, Corporal Palmer, one
of the two recruiters who had implicated Morgan in
recruiting fraud, told Puleo that the statements he had
given to the Evans' investigating team regarding Morgan's
involvement in recruiting fraud were false.

On March 27, 1989, numerous charges were preferred 11
against Morgan for violations of various provisions of the
UCMJ.12 He was charged with engaging in fraudulent
recruiting practices on several, enumerated occasions
(Charges I & III), improper administration of the ASVAB test
(Charge III), making false statements regarding drug use of
members of a recruiting substation (Charge IV), presenting
a false claim for travel expenses (Charge V), and making a
false statement under oath (Charge VI).

On March 28, 1989, Koleos interviewed Palmer, and
Palmer told him that the statements he gave during the
Evans' investigation were false. Koleos responded by telling
Palmer that he would have to call Colonel Evans and
Captain Evans. However, Palmer exercised his Article 31
rights under the UCMJ and spoke with his defense counsel,
First Lieutenant Ansa. After speaking with Ansa, Palmer
decided to remain silent. In response, Koleos implied that
Palmer's record would suffer and Palmer may be disciplined
if Palmer said anything against Colonel Evans or Captain
Evans.

Nonetheless, despite Koleos purported threat, Palmer
_________________________________________________________________

the Marine who had come to his shop for a false diploma. However,
Koleos did testify that William's description of the Marine who came to
his shop fit Morgan's description.

11. The preferring of charges is the first formal step in prosecuting a
criminal case under the UCMJ. For a discussion of the process, see
SCHLUETER, supra note 9, S 6-1.

12. Specifically, Articles 80, 81, 84, 92 and 134 of the UCMJ. 10 U.S.C.
SS 880, 881, 884, 892 and 934.

                               13
made a statement on March 29, 1989. In that statement
Palmer declared:

       I was interviewed by Captain Koleos. During my
       conversation with the Captain, I made it clear that I
       was going to say things in court that would incriminate
       LtCol. Evans and Capt Evans, because I recanted my
       statements [to them]. The reason I recanted my
       statement is that they were made under pressure and
       I was cohersed (sic) and told by [both] Evans what to
       say there-for (sic), making them false statements.
       During my conversation with. . . Koleos he made it
       unmistakably (sic) clear that if I did not stick with my
       first two statements (which were false), that the
       sentence of my February 24, 1989 NJP would be
       vacated, which means a reduction in rank and
       forfeiture (sic) in pay. This came across to me as a
       threat.

        I am making this statement because I know that I
       will eventually have to make these statements in court
       and I know that they will vacate my sentence. And I
       want to have record of my knowledge of this prior to it
       happening.

        What I am saying is true and I do not feel an
       innocent man should be judged on statements that
       someone was pressured into making.

This statement was incorporated into a Stipulation for
Morgan's upcoming Article 32 hearing.13

Similarly, Williams (the owner of Precision Printing whose
accusations are set forth above) testified at a deposition
and denied ever incriminating Morgan. He stated that
_________________________________________________________________

13. An Article 32 Investigation, 10 U.S.C. S 832, is, as noted earlier,
the
military counterpart to the civilian grand jury. According to the Manual
for Courts-Martial (MCM), United States (1995 Edition), "[t]he primary
purpose of [the Article 32 Investigation] is to inquire into the truth of
the
matters set forth in the charges, the form of the charges, and to secure
information on which to determine what disposition should be made of
the case." See Rules for Courts-Martial ("R.C.M.") 405(a), Discussion. No
charge may be referred to a general court-martial for trial until an
Article
32 investigation has been conducted. 10 U.S.C. S 832(a).

                               14
investigators were trying to "get the goods" on Morgan, but
that he, Williams, could not assist them because he did not
know Morgan and had never seen him. He flatly denied ever
making the inculpatory statements against Morgan that
Koleos had reported. On the contrary, Williams swore that
he could not link Morgan to any fraudulent diplomas.

Williams testified that, on the contrary, it was the
investigators who did the threatening. They purportedly told
Williams that he was also under investigation; that he
could be charged as a result of the investigation; and that
the FBI might be notified of his conduct. Williams also
testified that he had refused to sign a statement that Koleos
had prepared which identified Morgan as the Marine who
was coming into his shop for false diplomas.

Puleo was able to interview several key witnesses before
the Article 32 hearing. The majority of them were Marine
Corps applicants, who not only absolved Morgan of
wrongdoing, but also identified other Marines who were
involved in the recruiting fraud. In addition, they either
stated that they had been pressured into implicating
Morgan or denied making statements that had been
credited to them in which they purportedly accused Morgan
of improper conduct.

G.

The Article 32 investigation took place in Pittsburgh,
Pennsylvania, on April 2 and 3, 1989. Major Ellen B. Healy
was designated the Investigating Officer,14 Captain Koleos
was the government's counsel, and Captain Puleo was
Morgan's counsel. Much of the testimony at that hearing
exonerated Morgan. At the conclusion of the investigation,
Major Healy prepared a report in which she stated that the
government was not able to present key testimony, and
that, with the exception of allegations relating to Charge III
(the wrongful enlistment of a particular recruit), the
charges against Morgan were not supported by the
_________________________________________________________________

14. The Investigating Officer is appointed by the commanding officer.
R.C.M. 405(d)(1). He or she conducts the investigation and makes a
report of conclusions and recommendations. Id.

                                15
evidence. Moreover, the testimony as to even that charge
was equivocal. The prosecution had produced testimony
that Morgan directed a recruiter to fill out a false education
verification. However, the witness stated that Morgan
directed him to verify it the following day.

Based on the evidence at that hearing, Healy
recommended that Morgan be subjected to NJP, the lowest
form of punishment under the UCMJ. On April 6, 1989,
Morgan was ordered to report to Parris Island.

Puleo was initially unable to interview Lockwood, the
recruit who had first implicated Morgan in the scheme to
falsify diplomas. However, Puleo finally was able to
interview Lockwood after the Article 32 hearing, and
Lockwood told him that he had lied to the investigating
team. Lockwood said that Master Sergeant Cawman, a
member of the Evans investigating team, told him that he
(Lockwood) would have to implicate Morgan and Cawman
told him what to say.

Based on Lockwood's allegations, Puleo preferred charges
against Cawman.15 Puleo gave the charge sheet to Koleos to
be forwarded to the Commanding General. Koleos later told
Puleo that the charge sheet had been sent through
channels, but Puleo subsequently found it in a waste
basket. Cawman was never prosecuted.

As these disclosures were occurring, General Lynch was
reviewing Healey's recommendation that Morgan receive
only an NJP. However, Lynch rejected that recommendation
and ordered yet another investigation. Consequently, the
Article 32 hearing was reopened. Staff Sergeant Cummings
testified for the government at the reopened hearing under
a grant of immunity. As a result, new charges were brought
against Morgan and a new charge sheet was prepared that
contained the original charges plus two new ones.16 One of
_________________________________________________________________

15. Anyone subject to the UCMJ may serve as an "accuser" and prefer
charges against someone else. 10 U.S.C. S 801(9).

16. Under Article 32, the investigating officer may, subject to certain
conditions, investigate other, uncharged offenses, if the evidence
indicates that the accused may have committed those offenses. 10
U.S.C. S 832(d).

                                16
the new charges was an allegation that Morgan was
engaging in an illegal bookmaking operation in RS
Pittsburgh.

Following that reopened investigation, Major Healy
prepared another report in which she noted that Cummings
testified under a grant of immunity, that he had previously
lied, and that he admitted to using cocaine while on
recruiting duty. Healey also noted that the government
called witnesses who negated Cummings' testimony against
Morgan. Nonetheless, she recommended that Morgan be
tried by general court-martial.17

H.

Morgan's general court-martial18 was scheduled for
Tuesday, August 8, 1989, in Parris Island. However, one
week before the scheduled trial, Koleos19 suggested to Puleo
_________________________________________________________________

17. After Healey filed her second report, Morgan wrote to then
Pennsylvania Senator John Heinz and complained about the conduct of
the government, and the charges brought against him. That letter formed
the substance of Morgan's "whistleblower" claim. However, the district
court found that General Lynch did not know of the letter and that no
action was taken against Morgan because of it. Thatfinding of fact is not
clearly erroneous.

18. A general court-martial is the highest trial court in military law.
Article 16 of the UCMJ, 10 U.S.C. S 816. Articles 22 through 29 of the
UCMJ, 10 U.S.C. SS 822-29, establish the mechanics of convening a
court-martial and the composition of its members. For a detailed
discussion of the entire process, see SCHLUETER , supra note 9, SS 8-1
through 8-6.

19. Koleos had by this time been assigned to be the prosecutor for
Morgan's general court-martial. In military jurisprudence, the prosecutor
is called "trial counsel." HOMER E. MOYER, JR., JUSTICE AND THE MILITARY,
S 2-306; 10 U.S.C. S 827(a)(1).

Koleos occupied a number of positions in this case. He was the Deputy
Staff Judge Advocate for the Eastern Recruiting Region and the legal
advisor to the Evans' investigation. At the request of Major Kelley, legal
advisor to the Casey investigation, he interviewed Jerry Williams, the
printer accused of printing false high school diplomas for applicants.
Further, he was government counsel in Morgan's Article 32 investigation
conducted by Major Healey.

                               17
that Morgan should opt for an Other Than Honorable
("OTH") discharge in lieu of a general court-martial.20 Puleo
declined the offer on behalf of his client. Koleos then asked
Puleo if his position would be different if the government
had a notebook in which Morgan had recorded his
bookmaking. Cummings had allegedly taken this "gray
book" from Morgan's car, and Koleos purportedly allowed
Cummings to travel to Pittsburgh to retrieve it.

Later that week, on Thursday or Friday, Koleos told Puleo
that Cummings was bringing the gray book to Parris Island
for Morgan's court-martial. On Saturday, August 5, Koleos
again told Puleo that Cummings had the gray book; but
claimed that he did not know where Cummings was. That
afternoon, Puleo went to Koleos' office. Koleos happened to
be speaking to Cummings on the telephone when Puleo
arrived, and Puleo told Koleos he wanted to speak with
Cummings. However, as soon as Koleos finished his
conversation he hung up the phone. Koleos told Puleo that
Cummings was on his way to Parris Island with the gray
book and that the offer to allow Morgan to take the OTH
discharge was only open until Cummings and the gray
book arrived at Parris Island.

On Monday morning, August 7, 1989, Puleo spoke to
Koleos again about the gray book and Koleos indicated that
Cummings had the gray book. Based on Koleos'
representations about the gray book, Morgan decided to
accept the government's offer of an OTH discharge in lieu of
trial by general court-martial. Accordingly, Morgan
submitted a request for administrative discharge under
other than honorable conditions in lieu of a general court-
martial. In the request, which he prepared with defense
counsel Puleo, Morgan pleaded guilty to wrongfully
participating in gambling activity while on duty as the
Recruiting Instructor -- the least serious offense that
Morgan had been charged with. General Lynch approved
the request the same day. Consequently, Morgan was
administratively reduced in rank to lance corporal with a
_________________________________________________________________

20. The regulations of the various armed services permit an enlisted
accused to apply for an administrative discharge rather than face a trial
by court-martial. SCHLUETER, supra note 9, S 9-4.

                               18
corresponding reduction in pay, and he became ineligible to
serve in the Marine Corps Reserve.

However, after the request for the OTH discharge was
approved, Cummings informed Puleo that he did not have
the gray book, that he never did have it, and that he had
been in constant touch with Koleos the previous weekend.
Cummings told Puleo that he had only stated that he was
looking for the gray book, and denied ever telling Koleos
that he actually had it. Cummings also told Puleo that
Koleos had promised him a general discharge in exchange
for his testimony against Morgan.

Thereupon, Puleo filed a motion to dismiss the charges
against Morgan based on prosecutorial and governmental
misconduct. Puleo based the motion upon the numerous
attempts to falsely implicate Morgan by named Marines,
including Koleos, and members of the Evans' investigation
team, and the evidence of coercion and perjury that were
part of that alleged scheme. However, the request to
dismiss the charges against Morgan was denied.

Puleo also prepared a request for Morgan to withdraw his
OTH discharge and that was submitted to General Lynch
on April 9, 1989. The request was based on Morgan's prior
reliance on the government's representations that it had the
gray book in its possession, and his subsequent discovery
that the government could not produce that evidence. If
Morgan's request had been granted, his trial by general
court-martial would have proceeded.21
_________________________________________________________________

21. Under military criminal procedure, an accused must be tried within
120 days of the date the charges are preferred, pretrial restraint in the
form of confinement, arrest or restriction in lieu of arrest or the
accused
is brought on active duty. R.C.M. 707(a)(1), (2), (3). In Morgan's case,
the
last day of his "speedy trial" time was August 8, 1989, the date of his
scheduled trial. Puleo testified that he expected that Morgan's request to
withdraw the OTH discharge would be treated as a defense delay, which
would toll the speedy trial clock. R.C.M. 707(c). However, there is no
indication that Morgan was willing to waive his speedy trial rights.
Furthermore, the filing of the request would not by itself have stopped
the clock from running. R.C.M. 707(c)(1) and Discussion. By August 9,
1989, Morgan's speedy trial time would have expired.

                               19
After Morgan submitted his request to withdraw the OTH
discharge, the Staff Judge Advocate, Colonel Jones,
interviewed Koleos and Puleo. On August 9, 1989, Jones
sent a memo to General Lynch, recommending disapproval
of Morgan's request. The memo states in part:

       3. The evidence in question, a grey book consistin g of
       memorandum records of respondent's gambling
       transactions with customers, was never in the
       possession of government counsel nor was it ever
       represented to be so. The government counsel
       indicated to respondent's counsel that a government
       witness had taken the book from the respondent's
       vehicle in December, 1988, claimed that he possessed
       it, and was making efforts to bring it under the control
       and custody of the government counsel by the close of
       business of August 7, 1989.

       4. Whether or not the representations of governmen t
       counsel were the causal factor in the submission of the
       request is speculative at best. It should be noted
       however, that the respondent did not indicate in his
       request for separation that he considered the book to
       be the dispositive factor in his decision to avoid trial by
       court-martial. Furthermore, the government was not
       relying upon its production to obtain a conviction but
       rather the testimony of six witnesses and other
       corroborative documentary evidence.

On August 9, 1898, General Lynch denied Morgan's request
to withdraw the OTH discharge. He offered no explanation
for doing so. That same day, General Lynch dismissed the
charges against Morgan in light of the OTH discharge. On
August 31, 1989, Morgan was discharged from the Marine
Corps on an "other than honorable" basis. 22
_________________________________________________________________

22. Following his discharge, Morgan sent a letter to Congressman
Murtha complaining of his treatment. Morgan subsequently argued
before the district court that his Constitutional rights were violated
because the Marines retaliated against him for writing that letter.
However, the district court properly rejected that argument as the letter
was written after he had been discharged from the Marine Corps, and
could not, therefore, have been the basis for any retaliation.

                               20
II.

In 1991, Morgan filed a complaint in the United States
District Court for the Western District of Pennsylvania
seeking declaratory and equitable relief against the
Secretary of Defense, the Secretary of the Navy, the
Commandant of the Marine Corps, and the Commanding
General of Parris Island. The six counts of the Complaint
alleged violations of the Constitution, including violations of
free speech, cruel and unusual punishment,23 equal
protection and due process. The court rejected all but one
of Morgan's claims24 after a nonjury trial. The court did not
_________________________________________________________________

23. Morgan did not pursue his eighth amendment claim at trial.

24. The following is a synopsis of each claim and of the district court's
holding on each.

1. First Amendment Claim. -- Morgan claims he was a
"whistleblower" who was retaliated against for blowing the whistle on
recruiting fraud. However, the district court rejected this claim because
it found the testimony of General Lynch credible. Thus, Lynch ordered
Colonel Casey, to investigate and fix the RS Pittsburgh problem. Lynch
testified that he did not know Morgan; that he was never informed that
Morgan had complained about the problems in RS Pittsburgh to Master
Sergeant Zuro; and that his investigation was not the result of any
"whistleblowing" by Morgan. District Court Opinion, Conclusions of Law
P 52.

2. Sixth Amendment right to counsel claim.-- Morgan claimed that
he was mislead by Captain Evans into believing that Evans was an
attorney and thus, his right to counsel was violated. Captain Evans
indicated that he was a legal advisor and Morgan talked to Captain
Evans for about 30 to 45 minutes. However, Captain Evans is not an
attorney.

The district court rejected this claim by holding that Morgan failed to
establish that he sustained any harm as a result of Evan's
misrepresentation. Id. at P 53.

3. Claim under the Equal Protection component of the Fifth
Amendment. -- Morgan claims that gambling is tolerated in the Marine
Corps and, by preferring gambling charges against him, the government
was engaging in selective prosecution. The district court rejected this
selective prosecution claim by finding that, although gambling in the
form of football pools, raffle tickets and the Pennsylvania Lottery took
place in RS Pittsburgh, Morgan was not being prosecuted for this type of
gambling. Rather, Morgan was being prosecuted for running a
bookmaking operation at RS Pittsburgh. Id. at P 54.

                               21
discuss Morgan's claim that his right to substantive due
process had been violated, but it did conclude that Koleos'
conduct "during the week preceding [Morgan's] scheduled
trial by general court-martial. . . ." had denied Morgan's
right to due process of the law. Dist. Ct. Op. atP 55. The
court wrote:

       Specifically, the court finds that Captain Koleos
       engaged in deceptive conduct in connection with the
       availability of Staff Sergeant Cummings and the
       availability of the government to gain possession of the
       gray book. The court further finds that such deception
       was improper, and that it was the determining factor in
       [Morgan's] decision to request an OTH discharge in lieu
       of trial by general court-martial, violating his right for
       an opportunity to be heard on the charges against him.
       Accordingly, [Morgan] is entitled to a declaratory
       judgment that defendants violated his right to
       procedural due process of law under the Fifth
       Amendment.

Id. The court also noted other allegations of misconduct
alleged against Koleos and others, including the alleged
attempts to falsely accuse Morgan of procuring fraudulent
diplomas. However, the court was "unpersuaded that these
incidents of misconduct were factors in [Morgan's] decision
to request the OTH discharge. . . ." Thus, the district court
"decline[d] to find that such misconduct also violated
[Morgan's] Fifth Amendment right to due process." Id. at
P 55 n.62.

Despite ruling in Morgan's favor on his procedural due
process claim, the court concluded that it could give only
limited relief. The court determined that it is"impracticable
to vacate General Lynch's August 9, 1989 decision, which
denied [Morgan's] request to withdraw his request for an
OTH discharge, and to order the Marine Corps to proceed
with [Morgan's] trial by general court-martial," as he had
requested. Id. at P 56, The court also rejected Morgan's
request for reinstatement in the Corps. "[I]t is undisputed
that there is no vested property right in future reenlistment
in the Marine Corps." Id.. The court reasoned that the
Marines would not have permitted Morgan to reenlist upon
the expiration of his last reenlistment period on February 5,

                               22
1990. Thus, the district court directed the Marines to
reinstate Morgan for the limited period of time between
August 31, 1989, the date of his OTH discharge, and
February 5, 1990, the date of the expiration of his last
reenlistment. Id. The Marine Corps was also directed to
expunge Morgan's military records insofar as they reflected
a reduction in rank and the OTH discharge, to restore him
to his status as a Master Sergeant, and to recharacterize
his discharge as honorable or general using the standards
applicable to those discharged at the expiration of their
normal term of service. Finally, the district court denied
Morgan's claim for back pay under Hubbard v.
Administrator, Environmental Protection Agency, 982 F.2d
531 (D.C.Cir. 1991), which held "that the waiver of
sovereign immunity in Section 702 of the Administrative
Procedure Act for `relief other than money damages' does
not waive sovereign immunity for an award of backpay." Id.

III.

Morgan did not appeal the district court's merits
decision. However, on September 28, 1995, he filed an
application to the district court for an award of attorney's
fees and costs under the Equal Access to Justice Act EAJA.
Under the EAJA, a prevailing party25 in non-tort litigation
against the United States is entitled to attorney's fees and
costs, unless the court finds that the position taken by the
government "was substantially justified or that special
circumstances make an award unjust." 28 U.S.C.
S 2412(D)(1)(A). In a Memorandum and Order, dated May 3,
1996, the district court found that the government's
position was substantially justified and, denied Morgan's
application for attorney's fees and costs. This appeal
followed.

IV.

The district court's determination of substantial
justification in a suit under the EAJA is reviewed for abuse
_________________________________________________________________

25. The government concedes that Morgan is the prevailing party for
purposes of the EAJA.

                               23
of discretion. Pierce v. Underwood, 487 U.S. 552, 560
(1988). An abuse of discretion arises when the district
court's decision "rests upon a clearly erroneousfinding of
fact, an errant conclusion of law or an improper application
of law to fact." Hanover Potato Products, Inc. v. Shalala, 989
F.2d 123, 127 (3d Cir. 1993). An abuse of discretion can
also occur "when no reasonable person would adopt the
district court's view." Id. Therefore, we will not interfere
with the district court's exercise of discretion"unless there
is a definite and firm conviction that the court. . .
committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors." Id.
Finally, as a part of our abuse of discretion review, we
examine the district court's factual findings for clear error.
Id. Our task in this regard is more difficult because the
factual underpinnings of the EAJA claim are not set forth
in the district court's opinion denying fees and costs, but in
its decision on the merits. There, the district court notes
the numerous instances of conflicting testimony but makes
very few findings of fact or credibility determinations.
Although our task is thus complicated, the issue before us
is sufficiently narrow that we can proceed with our analysis
based upon our review of the record and the findings that
the district court made along with those that are implicit in
that court's decision.

V.

Although our inquiry must be controlled by the language
of the statute in question, our analysis is aided by the
Supreme Court's statement of the policy underlying the
EAJA:

       Concerned that the Government, with its vast
       resources, could force citizens into acquiescing to
       adverse Government action, rather than vindicating
       their rights, simply by threatening them with costly
       litigation, Congress enacted the EAJA, waiving the
       United States' sovereign and general statutory
       immunity to fee awards and creating a limited
       exception to the `American Rule' against awarding
       attorneys fees to prevailing parties.

                               24
Pierce v. Underwood, 487 U.S. at 575 (Brennan, J.,
concurring in part and concurring in the judgment). The
section of the EAJA applicable here26 provides as follows:

       Except as otherwise specifically provided by statute, a
       court shall award to a prevailing party other than the
       United States fees and other expenses, 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 proceedings for judicial
       review of agency action, brought by or against the
       United States in any court having jurisdiction of that
       action, unless the court finds that the position of the
       United States was substantially justified or that special
       circumstances make an award unjust.

28 U.S.C. S 2412(d)(1)(A). "Fees" include "reasonable
attorney fees." 28 U.S.C. S 2412 (d)(2)(A). The question of
whether the position of the United States was "substantially
justified shall be determined on the basis of the record
(including the record with respect to the action or failure to
act by the agency upon which the civil action is based)
_________________________________________________________________

26. Morgan argues that his fee application can also be considered under
section 2412(b) of the EAJA which provides:

       Unless expressly prohibited by statute, a court may award
       reasonable fees and expenses of attorneys, in addition to the costs
       which may be awarded pursuant to subsection (a), to the prevailing
       parties in any civil action brought by or against the United States
or
       any agency or any official of the United States acting in his or
her
       official capacity in any Court having jurisdiction of such action.
The
       United States shall be liable for such fees and expenses to the
       extent that any other party would be liable under the common law
       or the terms of any statute which would specifically provide for
such
       an award.

28 U.S.C. S 2412(b). This section of the EAJA does not relieve the
government of liability for attorney's fees to the prevailing party even
in
a case where the government's position was substantially justified.
However, it does require that the prevailing party identify some other
statute or rule of common law which specifically provides for an award
of attorney's fees. Morgan has not identified any such statute or rule of
common law and, therefore, his argument that a fee award can be made
under 2412(b) is without merit.
25
which is made in the civil action for which fees and other
expenses are sought." 28 U.S.C. S 2412(d)(1)(B).

The Supreme Court has defined substantial justification
under the EAJA as "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. at 565. That is to
say, the government's position is substantially justified "if it
has a reasonable basis in both law and fact." Hanover
Potato Products, Inc. v. Shalala, 989 F.2d at 128. The
government has the burden of establishing that there is
substantial justification for its position. Id. at 128. In order
to do so, the government must show: (1) a reasonable basis
in truth for the facts alleged; (2) a reasonable basis in law
for the theory it propounded; and (3) a reasonable
connection between the facts alleged and the legal theory
advanced. Id.

The government's position under the EAJA includes "not
only the position taken in the litigation but the agency
position that made the litigation necessary in thefirst
place." Id. Thus, unless the government's pre-litigation and
litigation positions have a reasonable basis in both law and
fact, the government's position is not substantially justified.
Id.; see also Taylor v. Heckler, 835 F.2d 1037, 1040 (3d Cir.
1988) ("[T]he government is deemed to have two positions
for EAJA purposes, both [of which] must be substantially
justified. . . . [I]f either government position does not bear
scrutiny, the prevailing party should be awarded attorneys'
fees [and other reasonable fees and expenses].").

VI.

In denying Morgan's fee application, the district court
noted that Morgan raised six claims against the defendants
alleging violations of the First, Fifth, Sixth, Eighth and
Fourteenth Amendments and that the relief Morgan sought
was (1) a declaration that the constitutional rights
guaranteed under those provisions were violated; (2) an
injunction providing for his reinstatement into the Marine
Corps, with restitution of all financial losses and other
benefits and the expungement of his record of his OTH
discharge; (3) costs, expenses and attorneys fees; and (4)

                                26
other just and equitable relief. Dist. Ct. EAJA Opn. at 3.
The district court then noted that Morgan prevailed on only
one of his claims, i.e., that Koleos' conduct during the week
preceding the scheduled court-martial violated his Fifth
Amendment procedural due process rights, and failed to
prove any of his other constitutional claims. Thus, "the
relief awarded to plaintiff was very limited in relation to the
requested relief." Id. at 12.

We must emphasize, however, that the limited nature of
the relief fashioned by the district court does not in anyway
obscure the seriousness of even the single instance of
misconduct that the court found. Koleos was appointed to
prosecute this matter for the Marine Corps. He conducted
himself in a manner that violated rights afforded under the
very constitution he had sworn to uphold as an attorney
and as an officer in the Marine Corps.

The ABA Rules of Professional Conduct and the ABA
Standards for Criminal Justice: Prosecution Function and
Defense Function, are applicable to Marine Corps judge
advocates. United States v. Pack, 9 M.J. 752, 754 (C.M.A.
1980). Rule 4.1 of the Rules of Professional Conduct
requires that a lawyer "shall not knowingly . . . make a
false statement of material fact . . . to a third person."
MODEL RULES OF PROFESSIONAL CONDUCT Rule 4.1. A "third
person" within the meaning of the rule includes opposing
counsel. Id., Legal Background. Criminal Justice Standard
3-4.1 provides that it is "unprofessional conduct for a
prosecutor knowingly to make false statements or
representations in the course of plea discussions with
defense counsel or the accused." STANDARDS FOR CRIMINAL
JUSTICE: THE PROSECUTION FUNCTION, Standard 3-4.1.
Accordingly, Koleos' fabrications about the gray book
constituted a gross ethical violation of his duty and
responsibility as a lawyer as well as government prosecutor.
Koleos' conduct is also "conduct unbecoming an officer and
a gentleman" which is prohibited by Article 133 of the
UCMJ, 10 U.S.C. S 933.27 The military demands that its
officers comport themselves in accordance with a strict
moral standard, a deviation from which can be a
_________________________________________________________________

27. See Parker v. Levy, 417 U.S. 733 (1974).

                               27
punishable offense under the UCMJ. See M.C.M., Part IV,
P 59(c)(2). Counsel for the government in this appeal deems
it advantageous to dwell upon Morgan's limited victory in
its attempt to defeat his petition for fees under the EJAJ.
However, Koleos' utter disregard for his duties and
responsibilities as an attorney and as a commissioned
officer, coupled with his contempt for the constitutional
rights of Master Sergeant Morgan, affords the government
little room to trumpet the limited scope of Morgan's victory.
We are thus guided not by Koleos' misconduct, but by the
extent to which the government's position in defending
itself against Morgan's claim was substantially justified.

VII.

"[D]etermining whether the government's position is
substantially justified for the resolution of an EAJA claim
has proved to be an issue of considerable conceptual and
practical difficulty." Roanoake River Basin Association v.
Hudson, 991 F.2d 132, 138 (4th Cir. 1993). We cannot
assume that the government must pay Morgan's attorney's
fees merely because it did not successfully defend against
Morgan's suit on the merits in its entirety. The EAJA is not
a "loser pays" statute.28 Thus, a court cannot assume that
the government's position was not substantially justified
simply because the government lost on the merits. "[T]he
inquiry into reasonableness for EAJA purposes may not be
collapsed into [the] antecedent evaluation of the merits, for
EAJA sets forth a distinct legal standard." Cooper v. United
States Railroad Retirement Board, 24 F.3d 1414, 1416 (D.C.
Cir. 1994). Furthermore, as previously noted, we must
scrutinize both the government's prelitigation position and
its litigation position. Both positions must be substantially
_________________________________________________________________

28. It has been argued persuasively, however, that where the government
acts in bad faith or acts dishonestly, the government's conduct
"undermines the `substantial justification' for the government's position"
and an award of attorney's fees should follow. Gregory C. Fisk, The
Essentials of the Equal Access to Justice Act: Court Awards of Attorney's
Fees for Unreasonable Government Conduct (Part Two) , 56 La. L. R. 1, 54
(1995). Fee-shifting in such a case is " `automatic' only in the circular
sense that fee-shifting occurs automatically when the government acts
unreasonably." Id. at 41.

                               28
justified and if either is not, attorney's fees should be
awarded to the prevailing party.

A.

The usual conceptual difficulties inherent in resolving an
EAJA claim are further complicated here because Morgan
and the government have a fundamental disagreement over
what the district court should have examined in
determining whether the government's prelitigation position
was substantially justified. Morgan argues that because he
alleged a number of constitutional claims involving a
number of military personnel, the district court"should
have taken a broader view and consider[ed] not only
General Lynch's decision, and subjective knowledge, but
also that of his advisors and other government agents,
especially the actions and intent of Captain Koleos,
Morgan's Marine Corps prosecutor." Reply Br. at 2. Morgan
would have us revisit his merits claim and consider
whether General Lynch's decision was reasonable in light of
all of the constitutional violations Morgan alleged in his
complaint, including allegations of misconduct during the
Evans' investigation, allegations against Cawman and
allegations about the fabrication of William's statement. See
Appellant's Br. at 23-34. In essence, Morgan argues that
the district court ignored the numerous constitutional
violations which caused him to file his civil action by
limiting the focus of the EAJA inquiry to the
reasonableness of General Lynch's decision, which only
addressed Koleos' fabrications about the gray book.

Not unexpectedly, the government urges us to focus only
upon General Lynch's reasons for refusing to allow Morgan
to withdraw his request for the OTH discharge in lieu of
court-martial. The government argues that we cannot look
beyond Lynch's refusal and examine every instance of
misconduct alleged by Morgan.

Although we have detailed some (though by no means all)
of the allegations surrounding the Marine Corps
investigation into recruiting fraud in RS Pittsburgh, the
deceit purportedly perpetrated by Marine Corps personnel,
and by Morgan himself, we do not suggest that this

                               29
backdrop controls our substantial justification analysis.
Rather, as noted above, we state it only because it is
impossible to understand Morgan's EJAJ petition in a
vacuum.

The Marine Corps' investigation of Morgan had two parts.
One involved recruiting fraud and one involved bookmaking
charges. Koleos' misconduct in regard to the gray book,
which the district court found was the decisive factor in
Morgan's decision to opt for the OTH discharge, 29 has
nothing to do with the recruiting fraud charges leveled
against Morgan. In fact, Morgan was willing to be tried by
the general court-martial until Koleos lead him to believe
that the government had solid proof of Morgan's gambling
activities in the form of the gray book. Once Morgan was
informed that the government had his gray book, he
requested an OTH discharge. And once he learned that
Koleos did not have the gray book, he immediately
attempted to withdraw that request. Further, Morgan did
not plead guilty to any charge that arose from the
recruiting fraud investigations. He did plead guilty to
charges of bookmaking. Thus, we can not allow the
government's conduct during the recruiting fraud
investigations to guide our analysis of its position with
regard to Morgan's requested discharge or his attempt to
withdraw the request.30

Morgan also insists that Koleos' misconduct is relevant to
determining substantial justification even if we focus solely
_________________________________________________________________

29. Koleos also engaged in misconduct in the recruiting fraud aspect of
the case when he misstated the results of his conversation with
Williams, the printer, about Morgan's complicity in the scheme involving
the preparation of false high school diplomas. However, the district court
found that Koleos"s misconduct in regard to the Williams conversation
was not relevant to Morgan's request for an OTH discharge. Dist. Ct.
Opn. at P 55 n.62.

30. For a discussion of the extent to which the EAJA inquiry focuses
only upon the narrow issue on which a party prevailed or upon the
entire litigation of which that issue may have been only a small part, see
Ronoake River Basin Associates v. Hudson et al. 991 F.2d 132 (4th Cir.
1993). There, the narrow issue that the prevailing party relied upon for
its fee request under the EAJA had a much closer nexus to the
government's overall action than the challenged action here.

                                30
upon Lynch's refusal to allow Morgan to withdraw his
requested discharge. We disagree. Although we in no way
minimize the gravity or impropriety of Koleos' conduct, it is
clear to us that Koleos' conduct is not the issue before us.
Rather, the issue is General Lynch's refusal to allow
Morgan to withdraw his request of an OTH discharge and
proceed to a general court martial. The fact that Morgan's
request was triggered by Koleos' conduct does not elevate
that conduct to the level of agency action under the facts
before us nor transform his conduct into the decision that
was challenged in court.31 Morgan challenged General
Lynch's decision, and that is the agency action that must
be substantially justified32 if Morgan is to be denied fees
under the EAJA even though Koleos' conduct formed the
basis of Morgan's relief in the district court. Therefore, the
district court's exclusive focus on the reasonableness of
General Lynch's decision was proper.33 After reviewing this
_________________________________________________________________

31. We need not determine under what circumstances the unlawful
actions or misconduct of an agency employee who is not responsible for
the challenged action can amount to agency action for purposes of an
EAJA fee petition. It has been held that, as general rule, an agency
employee's unauthorized conduct, which is not subject to judicial review,
cannot be regarded as agency action. Chiu v. United States, 948 F.2d
711, 716 (Fed. Cir. 1991). However, where the agency acts based upon
the misconduct of its employee, agency action can be found. Id.
(supervisory employee's unlawful motivation in recommending
elimination of plaintiff 's government position was deemed agency action
where the agency official implementing the reduction-in-force decision
acted on supervisor's recommendation).

32. In opposing Morgan's fee application in the district court, the
government argued not only that its position was substantially justified
but also that special circumstances made a fee award unjust. However,
the district court did not address the government's special
circumstances argument because it found that the government's position
was substantially justified. Dist. Ct. EAJA Op. at 5 n.3. In this appeal,
the government is not arguing that special circumstances make a fee
award unjust.

33. Had Lynch allowed Morgan to withdraw his OTH request, Morgan
would have faced a general court martial where he could have raised all
of the constitutional claims he litigated in the district court. Military
tribunals have the same responsibilities to protect a person from
constitutional violations as do federal courts. In re Kelly, 401 F.2d 211

                               31
record, we cannot say that the district court abused its
discretion in finding that the government's prelitigation
position (General Lynch's refusal to allow Morgan to
withdraw his request for an OTH) was substantially
justified.

The district court believed that General Lynch's reliance
on Colonel Jones' recommendation was reasonable.
Admittedly, Jones' report appears to contain a factual error.
Jones wrote that "[w]hether or not the representations of
government counsel were the causal factor in the
submission of the request is speculative at best." Supp.
App. at 33. However, it is obvious that Koleos'
representations did cause Morgan to request discharge just
as the district court concluded.

However, the district court's finding about Morgan's
reasons for seeking to withdraw his request for the OTH
discharge does not mean that either Jones or Lynch had to
accept Morgan's explanation. Jones made his own
credibility determination and Lynch relied on it. The fact
that the district court made a different determination does
not make Lynch's reliance on Jones' report unreasonable.

While General Lynch did not give any reason for denying
Morgan's request, his testimony at trial suggests that his
primary concern was avoiding the expense and
inconvenience of flying witnesses to Parris Island for a
court martial.

       When he first brought [the request for OTH discharge]
       in, . . . I was disinclined to approve it.
_________________________________________________________________

(5th Cir. 1968). Simply stated, if Lynch had allowed Morgan to withdraw
his OTH request, there would have been no district court litigation and
no consequent EAJA fee application.

Further, Lynch's decision, made in his capacity as the Commanding
General of the MCRD, Parris Island, is the agency action we are
examining here. The Marine Corps is within the Department of the Navy,
Neal v. Secretary of the Navy, 639 F.2d 1029, 1033 n.4 (3d Cir. 1981,
and each branch of the military is an agency within the meaning of the
Administrative Procedures Act, 5 U.S.C. S 551 et seq. See Id. at 1036
and Jaffee v. United States, 592 F.2d 712, 719 (3d Cir. 1979).

                                32
* * *

        Because I thought that justice would be better served
        if Master Sergeant Morgan stood trial by court-martial,
        . . .

         And the point was made in general terms that if it
        went to court-martial, it would be a great expense to
        the government, we would probably have to bring
        witnesses in on a worldwide basis, and whatever, and
        we were serving the needs or requirements of justice
        just as well by acceding to Master Sergeant Morgan's
        request.

         Having been convinced on that score, I then
        approved the request.

App. at 38. General Lynch also explained that he did not
allow Morgan to withdraw the OTH once it was granted
because "nothing had changed, nothing that is in terms of
what had prompted the initial decision to accept his
request had changed. There was discussion on this book,
this gambling book." App. at 40. Lynch added:"Any
decision to do anything other than continue on the course,
we were going, would have had to have been influenced by
a change in circumstances and there was no change." App.
at 41.

We must disagree that "nothing had changed." Morgan
had learned that the government did not have his gray
book, and apparently believed that the Corps' case against
him was seriously compromised without it. Furthermore,
when Morgan sought to withdraw his request for the OTH
discharge, Lynch knew that Koleos had been accused of
misconduct and he knew that the government did not have
the gray book in its possession. App. at 40, 105. However,
Lynch's erroneous belief that "nothing had changed" does
not compel a finding that denial of Morgan's request was
without substantial justification. The government's
"position can be justified even though it is not correct."
Pierce v. Underwood, 487 U.S. at 566 n.2.

When Morgan sought to withdraw his request for the
OTH discharge and proceed to trial by general court
martial, he never recanted his admission of guilt. He never

                                33
claimed that he was innocent of the gambling charge. 34
Morgan had the benefit of defense counsel when he made
the admission in his request for an OTH discharge.
Moreover, the wording of his request to withdraw his OTH
discharge reaffirms that evidence existed that would prove
that he was guilty of the gambling offense to which he had
pleaded guilty. When Morgan learned that the government
did not have the gray book, he decided that he wanted to
force the Marine Corps to conduct a general court-martial
to determine the truth of the gambling charge as well as the
other charges against him. He was willing to risk that the
government could not prove the gambling charge without
the gray book, and the other charges against him were
based in large part upon testimony that had since been
recanted, and witnesses who were either biased, or who
were willing to testify that they had been coerced into
falsely accusing him of various recruiting irregularities.

Since Morgan never sought to withdraw his admission of
guilt, Lynch's belief that the ends of justice would be served
by simply accepting the still pending admission of guilt and
giving Morgan the OTH discharge that he requested a day
earlier was eminently reasonable. Accordingly, the district
court's finding that the government's prelitigation position
was substantially justified was not an abuse of discretion.35
_________________________________________________________________

34. Although Morgan claimed that the gray book never existed, that
claim is not credible. See Dist. Ct. EAJA Opn. at 11 n.5. Had there been
no gray book, Morgan would not have been persuaded to request the
OTH discharge when Puleo told him of Koleos' representation that the
government had such a book.

35. We also note that Morgan's request to rescind his requested OTH was
submitted to General Lynch on August 8, 1989. Under the UCMJ, the
military had 120 days to bring Morgan to court martial. See note 21
supra. August 8th was the last possible day that he could have been
tried consistent with that limitation. Although Captain Puleo testified
that he assumed that the request to withdraw the OTH discharge and
proceed to court martial would act as a waiver of Morgan's "speedy trial"
rights, Morgan did not waive those rights in the request he submitted on
August 9. However, since General Lynch was apparently unaware of this
possible legal hurdle, it is not a factor in our analysis.

                               34
B.

Morgan argues that the government's repeated attacks on
the jurisdiction of the district court in his merits suit
demonstrate the complete lack of justification for the
government's litigation position. We disagree. The
government argued that Morgan's complaint failed to assert
any waiver of its sovereign immunity. Absent such waiver,
Morgan could not bring an action against his superior
officers.

In its EAJA opinion, district court indicated that its
jurisdiction to hear Morgan's claims was "far from clear and
presented a close question of law" and noted that the
jurisdictional issue presented a "substantial question of
law." Dist. Ct. EAJA Opn. at 6 and n.4. Further, the district
court noted that "government counsel would have been
remiss in not strenuously pursuing its argument that[the]
court lacked jurisdiction to hear [Morgan's] claims." Id. at 6
n.4.

Ultimately, that court held that it had jurisdiction over
Morgan's claims under Section 702 of the Administrative
Procedures Act ("APA"), 5 U.S.C. S 702. 36 See Jaffee v.
_________________________________________________________________

36. Section 702 of the APA provides as follows:

         A person suffering legal wrong because of agency action, or
         adversely affected or aggrieved by agency action within the meaning
         of a relevant statute, is entitled to judicial review thereof. An
action
         in a court of the United States seeking relief other than money
         damages and stating a claim that an agency or an officer or
         employee thereof acted or failed to act in an official capacity or
         under color of legal authority shall not be dismissed nor relief
         therein be denied on the ground that it is against the United
States
       or that the United States is an indispensable party. The United
       States may be named as a defendant in any such action, and a
       judgment or decree may be entered against the United States:
       Provided, That any mandatory or injunctive decree shall specify the
       Federal officer or officers (by name or by title), and their
successors
       in office, personally responsible for compliance. Nothing herein
(1)
       affects other limitations on judicial review or the power or duty
of
       the court to dismiss any action or deny relief on any other
       appropriate legal or equitable ground; or (2) confers authority to
       grant relief if any other statute that grants consent to suit
expressly
      or impliedly forbids the relief which is sought.

5 U.S.C. S 702.

                              35
United States, 592 F.2d 712, 719 (3d Cir. 1979). However,
in its EAJA opinion the district court expressly noted that
Morgan "exacerbated the jurisdictional controversy by
failing to allege the appropriate waiver of sovereign
immunity under the APA" in his complaint or subsequent
filings and that Morgan "specifically disregarded the court's
specific instruction to file an amended complaint alleging
the appropriate waiver of sovereign immunity under the
APA." EAJA Op. at 6.

Even if we disagreed with the district court's assessment
of the difficulty of the jurisdictional issue, we cannot
conclude that the government's actions in challenging
jurisdiction were unreasonable, especially in light of
Morgan's failure to plead a waiver of sovereign immunity.
Moreover, although Morgan argues that jurisdiction was
clear from the very beginning and that the challenges to
jurisdiction were therefore unreasonable, he was given an
opportunity to clarify any jurisdictional uncertainty when
the district court instructed him to amend his complaint to
plead waiver under the APA. Consequently, we believe that
the government's litigation position was substantially
justified.

VIII.

Our holding that the government's position in the
underlying litigation was substantially justified and that the
denial of attorney's fees was appropriate does not end our
inquiry. Morgan argues that he is entitled to costs under
the EAJA even if he is not entitled to attorney's fees, and in
support of that argument he relies on Section 2412(a)(1) of
the EAJA which provides, in relevant part, as follows:

        Except as otherwise specifically provided by statute, a
        judgment for costs, as enumerated in section 1920 of
        this title, but not including the fees and expenses of
        attorneys, may be awarded to the prevailing party in
        any civil action brought by or against the United States
        or any agency or any official of the United States acting
        in his or her official capacity in any court having
        jurisdiction of such action.

                                36
28 U.S.C. S 2412(a)(1). He notes that, unlikeS 2412(d)(1)(A),
which requires a finding that the government's position was
not substantially justified before a district court can award
attorney's fees, S 2412(a)(1) does not require such a finding
as a condition to the award of costs. Thus, he argues that
because he was the prevailing party, he is entitled to costs
without regard to the reasonableness of the government's
position in defending against his claims.

However, we do not believe it necessary to reach the
merits of Morgan's argument. Section 2412(a)(1) specifically
refers to costs as enumerated in 28 U.S.C. S 1920, which
provides as follows:

       A judge or clerk of any court of the United States may
       tax as costs the following:

       (1) Fees of the clerk and marshal;
       (2) Fees of the court reporter for all or any part of the
       stenographic transcript necessarily obtained for use in
       the case;
       (3) Fees and disbursements for printing and witnesses;
       (4) Fees for exemplification and copies of papers
       necessarily obtained for use in the case;
       (5) Docket fees under section 1923 of this title;
       (6) Compensation of court appointed experts,
       compensation of interpreters, and salaries, fees,
       expenses, and costs of special interpretation services
       under section 1828 of this title.

       A bill of costs shall be filed in the case and, upon
       allowance, included in the judgment or decree.

28 U.S.C. S 1920 (emphasis added). It is clear that such
costs are an incident of judgment. Rude v. Buchhalter, 286
U.S. 451, 459 (1931); see also Fed.R.Civ.P. 54.

Morgan inserted a prayer for costs in his complaint, but
the district court did not address it in its merits disposition.
See App. at 410-11. The award or non-award of costs is
inherent to, and appealable from, the initial judgment. See
Gonzales v. Fairfax-Brewster School, Inc., 569 F.2d 1294
(4th Cir. 1978). However, Morgan did not appeal from any
part of the district court's merits decision. Consequently,
his failure to appeal from the district court's failure to

                                37
award costs makes that aspect of the judgment afinal
decision which Morgan cannot now attack. Id. at 1297.

IX.

In closing, we wish to reiterate that although we affirm
the denial of relief to Morgan under the EJAJ, we do not
intend to minimize the seriousness of the misconduct that
has been attributed to Captain Koleos, or various other
Marine Corps officers, nor do we minimize or ignore the
seriousness of the allegations of violations of Morgan's
constitutional rights. Indeed, in the usual case, a
constitutional violation will preclude a finding that the
government's conduct was substantially justified. See U.S.
v. $12,248 U.S. Currency, 957 F.2d 1513, 1517 (9th Cir.
1991) ("[T]he government's position was not substantially
justified because the government violated the claimant's
Fifth Amendment Due Process rights . . ."). Rather, we
merely state, that on this record, the district court did not
abuse its discretion in finding the government's position
was substantially justified. Thus, for all of the above
reasons, we will affirm the decision of the district court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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