Silva v. United States

In the United States Court of Federal Claims No. 16–1036C (Filed: June 21, 2018) ************************************* * JOHNATHAN D. SILVA, * * * Plaintiff, * Equal Access to Justice Act ; 28 U.S.C. § * 2412(d); Attorney’s Fees; Prevailing v. * Party on Remand; Substantially Justified; * Judicial Imprimatur. THE UNITED STATES, * * Defendant. * * ************************************* John A. Wickham, Law Office of John Adams Wickham, Evergreen, Colorado, for Plaintiff. Delisa M. Sanchez, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., as well as LCDR Adam B. Yost, Office of the Judge Advocate General, U.S. Navy, for Defendant. OPINION AND ORDER WHEELER, Judge. On December 28, 2017, counsel for Plaintiff Johnathan D. Silva filed a motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for fees and expenses incurred in proceedings regarding his discharge from the United States Navy. The prevailing party in an EAJA action is entitled to reasonable attorney’s fees. 28 U.S.C. § 2412(d)(1)(A), (B). In this case, both parties agreed to remand the case to the Board for Correction of Naval Records (“BCNR”) where Mr. Silva was ultimately afforded all the relief he sought. Mr. Silva then voluntarily dismissed the case, but the parties are unable to agree on whether Mr. Silva is entitled to an award of attorney’s fees. Mr. Silva requests attorney’s fees in the amount of $33,937.56. For the reasons set forth below, Mr. Silva’s motion for attorney’s fees is DENIED. Factual and Procedural Background On March 10, 2004, Mr. Silva enlisted in the United States Naval Reserve under the Delayed Entry/Enlistment Program (“DEP”). Compl. ¶ 1. While Mr. Silva was in the DEP, he also enlisted in the Individual Ready Reserve. Id. at ¶ 5. Mr. Silva commenced active duty on September 29, 2004. Id. at ¶ 1. Mr. Silva served without disciplinary incident until February 13, 2008, when he received nonjudicial punishment (“NJP”) for three offenses: (1) driving under the influence on December 1, 2007; (2) a two-hour unauthorized absence on December 28, 2007; and (3) driving under the influence on December 28, 2007. Id. ¶ 12. Then, in March 2008, Mr. Silva completed substance abuse treatment and his performance recovered. Id. at ¶¶ 13– 14. However, on August 13, 2010, Mr. Silva was suspected of being under the influence of alcohol and drunk on duty. Id. at ¶ 15; BCNR Review ¶ 4(e), Dkt. No. 24. Subsequently, he was medically evaluated for fitness for duty. Compl. ¶ 15. On August 26, 2010, Mr. Silva, with advice of counsel, refused NJP in order to contest the charges. Id. at ¶¶ 28–29. On August 27, 2010, the Navy provided notice of and initiated administrative discharge proceedings against him. Id. at ¶ 30. Mr. Silva contested the charges in his rebuttal statement and requested an administrative board hearing, claiming he met the six-year threshold ...

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