Argument Preview

This week we are previewing three cases scheduled to be argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight an Equal Access to Justice Act case, Monroe v. United States. In this case, the United States asks the Federal Circuit to overrule what it characterizes as an abuse of discretion by the trial court in awarding attorney’s fees and expenses to the plaintiff-appellee. This is our argument preview.

The United States argues in its brief that the Federal CIrcuit “should reverse the trial court’s judgment awarding attorney fees and expenses to Mr. Monroe because the trial court abused its discretion.” The United States argues that by “finding that the Government’s position was not substantially justified” the “trial court committed at least three legal errors.”

First, the United States claims “the trial court misapplied the requirement that the substantial justification finding must be based upon the Government’s overall position.” Second, it argues that, “even if the trial court’s myopic focus upon Mr. Monroe’s disability rating was appropriate, which it was not, the trial court nonetheless erred in determining that his initial 20 percent rating was not substantially justified.” Third, the United States contends, “the trial court erroneously faulted the [Air Force Board for the Correction of Military Records] for not increasing Mr. Monroe’s disability rating in its initial decision and first remand decision, even though Mr. Monroe did not challenge his disability rating at the AFBCMR until after these decisions.”

In the alternative, the United States argues the Federal Circuit “should reverse the judgment below because the trial court failed to reduce Mr. Monroe’s requested fees and expenses based upon his lack of success on the merits.” The government claims that “the trial court erroneously determined that Mr. Monroe’s unlawful discharge claim and his disability retirement claim are part of a single, overarching claim.” Also, the United States maintains, “the trial court . . . erred by failing to compare the relief sought to the relief obtained in determining whether Mr. Monroe obtained excellent results.” Based on these argument, the United States claims “the trial court erred in awarding Mr. Monroe his fees and expenses for pursuing his unsuccessful unlawful discharge claim.”

In his response brief, Monroe argues the Federal Circuit “should affirm the trial court’s judgment awarding attorney’s fees and expenses.” Monroe maintains that both “the legally flawed decision making by the AFBCMR that necessitated two remands of Mr. Monroe’s case in 2018 and 2019” and the fact that “the AFBCMR persisted with a tenuous factual and legal position through the first remand decision” justify independently affirming the trial court’s judgment. Monroe notes he “prevailed at each procedural stage of the litigation, securing two remands and an AFBCMR decision in his favor,” and as result, he argues, “a fully compensatory fee award was warranted.”

In its reply brief, the United States again urges a rethinking of the trial court’s decision. The government highlights that “the trial court determined that the Government’s position was not substantially justified primarily because the AFBCMR failed to increase Mr. Monroe’s disability rating before he requested an increased disability rating from the board, even though Mr. Monroe had the burden of demonstrating material error or injustice at the AFBCMR.” The government also claims “Mr. Monroe erroneously attempts to shoehorn his two distinct claims into a single claim challenging the allegedly arbitrary and capricious ‘AFBCMR decision making related to his disability evaluation process.’” Instead, the United States argues, “the Air Force’s unfitness determination was not erroneous or unjust, a position that was ultimately vindicated in the AFBCMR’s unchallenged second remand decision.” 

Alternatively, the United States argues, “[t]he trial court also erred by failing to compare the relief sought to the relief obtained in determining Mr. Monroe’s EAJA award.” In this case, the United States notes, “Mr. Monroe was unsuccessful on the unlawful discharge claim that he raised in his complaint, and his success before the AFBCMR on the separate disability retirement claim resulted in Mr. Monroe receiving significantly less relief than he sought in his complaint.”

The National Veterans Legal Services Program filed an amicus brief supporting Monroe. It argues that, “[i]n the context of awarding EAJA fees in medical retirement cases, the totality of a veteran’s claim should be considered” and any “veterans should not be penalized for an initial pro se request for relief that is not ultimately awarded.” It also contends that “the totality of the government’s actions should be considered,” and it maintains that “government-requested voluntary remands without concession of error should not justify denial or reduction of an EAJA award.”

This case will be argued on Tuesday, November 2. We will report on developments.