Argument Recap / Panel Activity

This past Tuesday, the court heard oral argument in Monroe v. United States, an appeal from the United States Court of Federal Claims. We have been following this Equal Access to Justice Act case because it attracted an amicus brief. On appeal, 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. Monroe contends he “prevailed at each procedural stage of the litigation” and, as result, “a fully compensatory fee award was warranted.” The arguments regarding the award of fees and expenses in an EAJA action attracted an amicus brief in support of Monroe. Judges Moore and Chen heard Tuesday’s argument. Judge Clevenger was assigned to this panel, but he was not present for the argument. This is our argument recap.

William P. Rayal argued for the United States. He started by contending the trial court committed at least three errors in finding the position of the United States not substantially justified and then awarding attorney’s fees and expenses to Monroe.

Judge Chen asked the first question, inquiring if there is a broad policy underlying this appeal for the government or if instead this is simply an isolated appeal tied to the facts of this case. Rayal responded that, broadly, the government is taking the position that the initial actions of the Air Force Board for the Correction of Military Records should not be used to find that the government’s position was not justified when the relief sought and granted is altered in the final proceeding at that Board. Rayal explained that the first time Monroe challenged his disability rating, the Board agreed. Rayal contended that all the previous appeals did not consider a rating change because Monroe did not ask for one and the Board only considered his fitness for duty.

Judge Moore next directed Rayal to fact finding completed by the Court of Federal Claims and used by that court to determine that the government lacked substantial justification for its action. Judge Moore specifically asked for a rundown of the litigation stages given the fact finding by the Court of Federal Claims that Monroe was forced to litigate following faulty decisions by the AFBCMR. Rayal noted that the AFMCRM just considered Monroe’s fitness for duty at the initial stages of the proceedings and that the Board never found this determination was faulty. Rayal also argued the Court of Federal Claims reached an incorrect finding that the Board’s decisions were faulty. Moreover, he pointed out, the Court of Federal Claims used this incorrect finding as the basis for its conclusion that the government’s position was not substantially justified in this case.

In response to a question from Judge Chen, Rayal explained that the disability rating was not challenged or mentioned in the early proceedings.

Scott W. MacKay argued for Monroe. MacKay started by arguing that in the early proceedings the “faulty determination” was the faulty process used by the Air Force Board. Judge Moore quickly asked for clarification given her view that a plain reading of the early ruling indicates the Board was determining Monroe’s fitness and not analyzing the process used.

Judge Chen then asked, assuming a change in argument by Monroe from fitness to disability rating, how the government’s position cannot be substantially justified, particularly if both parties ultimately agreed Monroe is not fit for duty.

Judge Moore later asked MacKay to identify when Monroe first asked for disability retirement given that she could only find it during the second remand in submitted briefs. MacKay assured Judge Moore his brief noted where Monroe had first offered the alternative of retirement. Judge Moore then asked where MacKay had cited this alternative in his brief because of the issue’s major importance to the case. MacKay noted a particular page of his brief.

Judge Moore then asked whether the alternative of forced retirement has anything to do with the disability rating reclassification argument later raised. MacKay maintained that there is a “common path” of offering an alternative argument compared to the dispute regarding fitness: while at first Monroe presented forced retirement as an alternative, it was not a shift when Monroe later presented as an alternative the idea that his disability rating could be increased.

Judge Moore countered by stating that, “with all due respect, this is an enormous shift.” She asked how one could believe arguing he was fit for duty and then later arguing (and being awarded) more disability both qualify as the same argument. MacKay in response argued that the “arbitrary” aspect of this case was the process undertaken by the Air Force Board, which was later corrected. MacKay argued that, even if the relief obtained was not the first relief sought by Monroe, there was still an error committed in Monroe’s proceedings that had to be corrected.

Rayal used his rebuttal time to note that the underlying argument is relevant to any EAJA Act award against the United States. He then argued that shifting arguments to obtain relief should disqualify the claimant from an award of attorney’s fees and costs.

Judge Moore asked if, in the government’s view, Monroe’s argument of process errors by the Air Force resulting in multiple remands could ever be a basis for a finding that the government’s action was not substantially justified. Rayal admitted it could be a basis for an award, but he argued that would be appropriate only in a case where the original underlying claim forms the basis for the eventual, granted relief. Rayal maintained that circumstance was not present in this case based on the late shift in argument from fitness for duty to the correct disability rating classification.

We will continue to monitor the case and report on any developments.

This post was updated on November 23 to reflect the fact that Judge Clevenger, while assigned to this panel, was not present for the argument and therefore did not ask any questions.