Weber v. Weinberger, K83-644.

• Decision Date: 29 January 1987
• Docket Number: No. K83-644.,K83-644.
• Citation: 651 F. Supp. 1379
• Parties: Thomas WEBER, Plaintiff, v. Caspar WEINBERGER, Secretary, Department of Defense, and Verne ORR, Secretary, Department of the Air Force, Defendants.
• Court: U.S. District Court — Western District of Michigan

651 F. Supp. 1379

Thomas WEBER, Plaintiff, v. Caspar WEINBERGER, Secretary, Department of Defense, and Verne ORR, Secretary, Department of the Air Force, Defendants.

No. K83-644.

United States District Court, W.D. Michigan, S.D.

January 29, 1987.

COPYRIGHT MATERIAL OMITTED

William L. Coash, Legal Services Organization of Southcentral Mich., Battle Creek, Mich., Barton F. Stichman, M.G. Diamond, Dianne E. Dusman, Julia Trotter, Washington, D.C., for plaintiff.

Anne Vandermale Tuuk, U.S. Asst. Atty., Grand Rapids, Mich., Alex Nicholas, Gen. Litigation Div., Office of J.A.G., Washington D.C., for defendants.

OPINION

ENSLEN, District Judge.

The plaintiff in this case is a former enlisted member of the United States Armed Forces. He served on active duty in the Air Force from October 24, 1960 until September 27, 1963. At that time, he was separated with a general discharge, under honorable conditions, for "unsuitability" under the provisions of former Air Force Regulation 39-16, 1959. Under this Regulation, an airman could receive an administrative discharge for unsuitability for "character and behavior disorders, disorders of intelligence, and transient personality disorders." AFR 39-16, Section "A," paragraph four.

It is important to understand the distinction between an administrative discharge for unsuitability due to character or behavior disorders and a medical discharge for "unfitness" due to physical disability. While an airman with a character or behavior disorder is considered "qualified" for duty, he is not considered suitable.

Further, while a psychiatric diagnosis of psychosis or psychoneurosis would constitute a physical disability for purposes of medical discharge, AFR 35-4, Section "N," paragraphs one and two, 1969, an express diagnosis of a character or behavioral disorder would not render one medically unfit. AFR 39-16, Section "A," paragraph three.

Under AFR 39-16, Section "B," paragraph 8c, 1959, an airman who was being processed for a proposed administrative separation for unsuitability would be examined by a medical officer, presumably untrained in psychiatry, who would determine whether any medical or physical disability existed which would warrant action under AFR 35-4.

Only if the medical officer found evidence of mental illness, as opposed to character or behavior disorders, would a consultation be arranged with a qualified psychiatrist. In this event, further processing under 39-16 would be held in abeyance pending a final determination of the airman's fitness for duty.

The distinction between a medical and an administrative discharge is an important one. An airman who receives a medical discharge is ordinarily entitled to benefits not available to one administratively discharged. Further, the applicable regulations insist that the quality of the discharge, for example, honorable, general, less than honorable, etc., is to be determined solely by the character of service and not influenced by the reason for discharge, for example, medical or administrative. See AFR 35-4, paragraph 4-15(b), 1960; AFR 39-16, Section "A," paragraph three, 1959. However, plaintiff has offered statistical compilations for selected years that strongly suggest that such directives may not have been followed in practice.

For the time period between October 1979 and September 1981, fully 100 percent of the 1,682 airmen separated for physical disability received honorable discharges while more than twenty percent of the 2,077 airmen administratively separated for unsuitability due to personality disorders received general discharges. See plaintiff's Exhibit No. "G."

If you go back to the ten years between 1967 and 1976, the rate of general discharges for airmen administratively separated for unsuitability ranged from twenty-five percent to fifty percent. See plaintiff's Exhibit No. "I."

What follows is a brief chronological summary of the salient facts of this case. In 1963, plaintiff was discharged. In 1970, plaintiff first applied to the Veterans Administration for benefits. That application was denied.

In 1973, a fire at the National Personnel Records Center destroyed many of the records relating to plaintiff's 1963 discharge. In 1982, plaintiff filed an application with the Air Force Board for Correction of Military Records (AFBCMR) requesting that his discharge be "changed to medical."

In April of 1983, the AFBCMR notified plaintiff that relief had been denied. On November 22, 1983, plaintiff filed his initial complaint in this Court. The original complaint contained two counts. Each count directly challenged his 1963 discharge. At a hearing which took place on November 13, 1984, I found that plaintiff's cause of action challenging a discharge from military service was time-barred and granted defendants' motion for summary judgment to that extent. However, I also granted plaintiff's motion to amend his complaint and ruled that neither latches nor the six-year statute of limitations set forth in 28 U.S.C. § 2401(a) bars plaintiff's challenge under the Administrative Procedures Act (APA) to the AFBCMR decision denying him relief.

On February 27, 1985, defendants filed a second motion to dismiss or, in the alternative, for summary judgment. Defendants again argued that the claim was time-barred because plaintiff challenged the substance of the AFBCMR decision and not the procedures used to arrive at its decision. Defendants also argued that the court lacked subject matter jurisdiction because the complaint sought monetary relief from the United States in excess of $10,000 and that such claims must be brought in the United States Claims Court. Defendants also advanced a series of arguments which can, in summary, be characterized as asserting that the AFBCMR's conclusion that the Air Force physicians who diagnosed plaintiff as having a character and behavior disorder were psychiatrists was not arbitrary or capricious or unsupported by substantial evidence. See Defendants' Memorandum at 11-12.

In June of 1985, plaintiff responded with a cross-motion for summary judgment. Some five weeks later defendants filed a seventeen page memorandum in opposition to plaintiff's cross-motion for summary judgment and a reply brief to plaintiff's opposition to defendants' motion for summary judgment.

In August 1985, plaintiff filed a reply memorandum. Plaintiff also filed an affidavit which unequivocally indicated that plaintiff did not seek monetary relief thereby eliminating further litigation on the issue of subject matter jurisdiction.

Two months later, defendants filed another memorandum again arguing that the Court should ignore plaintiff's waiver of monetary relief as a "new attempt to manipulate jurisdictional facts." Defendants' Supplemental Memorandum at 3. The Court notes that in this case defendants have filed six separate memoranda of law total totalling some 53 pages and one affidavit consisting of four pages. Plaintiff has filed seven memoranda of law totalling 84 pages and seven affidavits totalling 23 pages.

The Court finally heard oral argument on February 5, 1986 and ruled from the bench on the cross-motions for summary judgment. The Court ruled that it had subject matter jurisdiction. See Transcript of Ruling of the Court (Tr.) at 8. The Court reaffirmed its November 1984 rulings insofar as it held that plaintiff's cause of action accrued when the AFBCMR denied him relief in 1983 and that the present action is not barred by laches. Id. at 8-12 and 12-13. The Court rejected defendants' argument that the AFBCMR's decision be subjected to a narrow, solely procedural review.

On the merits, the Court found "that the AFBCMR's finding that plaintiff was evaluated by a properly trained psychiatrist is completely without support in the record." Id. at 15. The Court concluded upon reviewing the AFBCMR decision under traditional APA standards that "the decision of the AFBCMR ... was arbitrary, capricious and not supported by substantial evidence." Id. at 16. Thus the Court denied defendants' motion for summary judgment, granted plaintiff's motion for summary judgment in part, and remanded the case to the AFBCMR for reconsideration in light of the oral opinion rendered on February 5, 1986.

The case is presently before the Court on plaintiff's motion for attorney's fees, costs, and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

EAJA

EAJA was originally enacted in 1980. Portions of EAJA were enacted as a three-year experiment and expired on September 9, 1984. Subsequently, certain EAJA amendments were enacted on August 5, 1985. EAJA amendments extended certain provisions which had expired on September 9, 1984. More important, the amendments clarified and amended the Act and made the Act, as amended, permanent.

28 U.S.C. § 2412(d)(1)(A) now provides:

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.

Plaintiff asserts that he satisfies each of the three statutory requirements for an award of fees, costs, and other expenses. First, plaintiff argues that he is a prevailing party. Plaintiff notes that EAJA subsection 2412(d)(2)(B) defines "party" to mean "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed." Plaintiff affirms that his net worth was far below the statutory ceiling. See Affidavit of Williams L. Coash at ¶ 5. In his original motion for an award of attorney's fees plaintiff merely...