Walton v. Lehman

• Decision Date: 25 August 1983
• Docket Number: Civ. A. No. 81-3558.
• Citation: 570 F. Supp. 490
• Parties: Joseph Leo WALTON v. John F. LEHMAN, Jr., Secretary of the Navy.
• Court: U.S. District Court — Eastern District of Pennsylvania

570 F. Supp. 490

Joseph Leo WALTON v. John F. LEHMAN, Jr., Secretary of the Navy.

Civ. A. No. 81-3558.

United States District Court, E.D. Pennsylvania.

August 25, 1983.

Thomas Kenworthy, Philadelphia, Pa., for plaintiff.

Dawn MacPhee, Asst. U.S. Atty., Philadelphia, Pa., for defendant.

MEMORANDUM

CLIFFORD SCOTT GREEN, District Judge.

Plaintiff, who served in the United States Navy continuously from March 11, 1963 to April 9, 1982, has a history of alcohol abuse. In April of 1981, the Fiscal Year 1982 Supply Corps Commander Selection Board ("Selection Board") notified the Secretary of the Navy ("Secretary") that plaintiff had not satisfactorily performed his duties at his present grade. Subsequently, in a report given pursuant to 10 U.S.C. § 6384¹, the Selection Board recommended that plaintiff be honorably discharged from the Navy.

This report was referred to the Judge Advocate General ("JAG") for review and recommendation, and prior to June 30, 1981, the JAG recommended that plaintiff be discharged on August 30, 1981 if the Secretary accepted the findings of the Selection Board. Plaintiff was informed of the findings of the Selection Board and invited to submit a personal statement or any other pertinent information.² Plaintiff availed himself of this opportunity.

After reviewing all the aforementioned information, the Deputy Chief of Naval Personnel ("Deputy Chief") recommended that plaintiff be discharged, and the Chief of Naval Personnel concurred. On August 14, 1981, the Secretary approved the recommendation. Orders to discharge plaintiff were given on August 18, 1981.

Plaintiff filed suit, requesting the court either to enjoin his discharge from the Navy or to order the Navy to give plaintiff a compensable medical discharge.³ On August 31, 1981 this court temporarily restrained defendant from discharging plaintiff from the Navy. After hearing, a preliminary injunction was issued on September 11, 1981; on defendant's unopposed motion, it was dissolved on March 17, 1982. Plaintiff was discharged from the Navy on April 9, 1982. Shortly thereafter, the case was set for trial, but on June 24, 1982 it was stayed, pending the exhaustion of administrative remedies.

Plaintiff then petitioned the Board for Correction of Naval Records ("BCNR") for reinstatement. The BCNR denied plaintiff's petition on August 16, 1982. The court lifted the stay of proceedings on September 16, 1982. The parties subsequently filed cross motions for summary judgment. The court found that defendant discharged plaintiff pursuant to an order which was not supported by statutory authority and therefore was invalid as a matter of law. Because plaintiff was not discharged in accordance with the provisions of the statute, the court entered summary judgment in favor of plaintiff and against defendant.

Now before the court are plaintiff's petition for attorney's fees under the Equal Access to Justice Act of 1980, 28 U.S.C.A. § 2412 (West 1976 & Supp. 1983), plaintiff's amended petition, defendant's memorandum in opposition, and plaintiff's reply memorandum. Because I conclude that plaintiff meets the requirements of the EAJA and that defendant has not met its burden of proving its litigation posture was substantially justified, I will grant plaintiff's petition, in part.

Section 2412(d)(1)(A) of the EAJA directs the court to award counsel fees and other expenses incurred by a prevailing party in any civil action, other than tort cases, brought by or against the United States "unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust." If defendant successfully bears its burden of proving substantial justification for its position or special circumstances, the court should not award fees or expenses to plaintiff. Dougherty v. Lehman, 711 F.2d 555 at 560 (3d Cir.1983).

Defendant opposes plaintiff's petition on several grounds. First, without citation of any authority, it argues that plaintiff did not sufficiently support his request for the attorney's fees of Janet Sonnenfeld and expert witness fees of Dr. Edgar Nace. In Exhibit B to the amended petition, the hours expended, types of service rendered and dates on which service was performed by Ms. Sonnenfeld are set forth in great detail. Thus, defendant's argument with regard to the sufficiency of support is unavailing as to the fees of Ms. Sonnenfeld. Similarly, plaintiff has filed an affidavit concerning, and is willing to submit further documentation of, the expenditure of fees paid to an expert witness. See Plaintiff's Reply Memorandum in Support of Application under the EAJA at 3. Plaintiff asserts and defendant does not contest that the witness testified at the preliminary injunction hearing regarding the potential for plaintiff being irreparably harmed.⁴ Under the EAJA, a prevailing party may recover reasonable expert witness fees. Nothing of record itemizes the fees paid to Dr. Nace or demonstrates that they are reasonable. The court will, therefore, hold a hearing at which plaintiff may present evidence on this issue.

The government next contends that plaintiff succeeded only on one claim, that work on the issues involved in this claim comprised but a small portion of the total hours expended by counsel, and consequently that the recovery of attorney's fees should be proportionate to the work expended on this claim. Plaintiff counters that the government fails to distinguish between a claim and the legal theory supporting it. Plaintiff argues that he asserted only one claim throughout this entire litigation, i.e., the Navy acted without legal authority when it discharged him. Plaintiff further maintains that he asserted several legal arguments in support of his claim and that the "claims" on which defendant says he did not prevail are, in fact, legal theories on which the court did not base its decision. He contends that, under the EAJA, the court is not required to "apportion costs according to individual points of argument won and lost .... Rather, major claims must be considered." Marple Township v. Secretary of Transportation, No. 81-4627, slip op. at 12 (E.D.Pa. Jan. 28, 1983); see also Dougherty v. Lehman, 711 F.2d 555 at 560 (3d Cir.1983). Moreover, he argues, as the Supreme Court recently declared in the context of a petition for fees pursuant to 42 U.S.C. § 1988:

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants ... counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved" .... These unrelated claims must be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim .... In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the time expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40, 51-52 (1983).

The sole claim raised in plaintiff's complaint is that the Navy served him with discharge papers in contravention of § 6384. On administrative review before the Board for the Correction of Naval Records ("BCNR"),⁵ plaintiff raised several other claims, e.g., that the Secretary had no authority to discharge plaintiff other than that provided in the DOPMA; that, prior to his discharge, the procedures set forth in the DOPMA were not followed; that his discharge was prohibited by 10 U.S.C.A. § 1168(a) because his discharge certificate was not ready for delivery to him on the day he was discharged; that the procedures prescribed in § 6384 violate due process and discriminate against regular Naval officers as compared to reserve Naval officers, Army officers, and Air Force officers. In the summary judgment motion filed by plaintiff, the aforementioned claims also were asserted.

The court believes that the alternative theories for relief argued before the BCNR and in plaintiff's motion for summary judgment are discrete claims, not legal theories in support of the same claim. By way of illustration, legal theories asserted with regard to the claim on which plaintiff prevailed might include: the express language of the statute requires discharge by June 30; the legislative history demonstrates congressional intent that officers be discharged by June 30; courts have construed the statute as requiring discharge by June 30. The court is not convinced that the late delivery of a certificate of discharge, the procedures required by the DOPMA, and the constitutionality of § 6384 are legal theories related to a claim based on the statutory construction of § 6384. Were the court to adopt plaintiff's characterization of this case as a single claim supported by several legal theories, the opinion of the court in Hensley would be eviscerated, for every case, no matter how many claims were made therein, could be characterized as a single claim for relief based upon multiple theories rather than separate causes of action.

On this record, I conclude that the contentions made before the BCNR and asserted in plaintiff's motion for summary judgment are not a single claim supported by various legal theories. Rather, they are discrete claims, unrelated to the narrow statutory claim on which plaintiff prevailed. The documentation of time expended which plaintiff's ...