[00:00:01] Speaker 04:
All right, our final case for argument is 22-1585, Crawford v. U.S.

[00:00:07] Speaker 01:
Good morning, Your Honors.

[00:00:08] Speaker 01:
May it please the Court.

[00:00:09] Speaker 01:
My name is Christian Curran from the law firm of Crowell and Mooring, here representing U.S.

[00:00:13] Speaker 01:
Army combat veteran John Crawford in his appeal from the Court's denial of his claim for Egypt fees.

[00:00:20] Speaker 01:
Crowell represents Mr. Crawford in conjunction with the National Veterans Legal Services Program, who depends on fee recoveries to assist veterans like Mr. Crawford.

[00:00:29] Speaker 01:
We're here today because the trial court erroneously found that Mr. Crawford was not a prevailing party under EJA, where the court found that its remand to the Board of Corrections for Military Records was not subjectively based on legal error.

[00:00:44] Speaker 01:
But the trial court's decision to ignore the context of the record at the time it was deciding the EJA application is at odds with a well-established law that requires review of such context when evaluating an EJA application.

[00:00:59] Speaker 01:
Mr. Crawford brought this case to the Court of Federal Claims through a complaint that outlined clear and manifest errors by the Army, both at the time of his separation and in deciding his application to the board in 2017.

[00:01:13] Speaker 00:
Can I just ask you a preliminary question?

[00:01:15] Speaker 00:
Yes.

[00:01:15] Speaker 00:
Because there seems to be a debate between the parties on what the appropriate standard of review is.

[00:01:20] Speaker 00:
Because you're saying it's de novo, and the government says, no, no, no.

[00:01:25] Speaker 00:
Well, it's underlying factual issues.

[00:01:28] Speaker 00:
So do you agree with that?

[00:01:30] Speaker 00:
And if so, most of what we're talking about are underlying factual issues, right?

[00:01:34] Speaker 00:
Or is it your view that it's completely a legal question?

[00:01:37] Speaker 01:
It is our view that it is a completely illegal question.

[00:01:40] Speaker 01:
As articulated in Kelly, prevailing party questions under IJA are reviewed de novo.

[00:01:46] Speaker 01:
And this is a legal question, although there has been discussion of the facts in the briefs.

[00:01:50] Speaker 00:
And you want to reverse it and not a remand.

[00:01:54] Speaker 00:
You're seeking reversal and not remand.

[00:01:55] Speaker 00:
Yes.

[00:01:56] Speaker 00:
OK.

[00:01:57] Speaker 00:
And you don't think a remand would be necessary because we could make all of the relevant determinations here.

[00:02:07] Speaker 01:
Well, we do, but in the alternative, a remand could be appropriate if the court believes that factual development needs to take place.

[00:02:16] Speaker 00:
Well, what do we need to find in order to rule from your favor on a reversal?

[00:02:22] Speaker 01:
To reverse the trial court, you would need to find that the context of the record shows that the remand was actually predicated on error, and therefore Mr. Crawford's prevailing pardon.

[00:02:31] Speaker 00:
And not substantially justified.

[00:02:34] Speaker 00:
Correct.

[00:02:35] Speaker 00:
which is something different than the error, right?

[00:02:37] Speaker 01:
Yes.

[00:02:38] Speaker 01:
And that was not before the court below.

[00:02:41] Speaker 02:
But you're content for us to resolve substantial justification if you went on prevailing party?

[00:02:48] Speaker 01:
I think the court has the authority to do that, yes.

[00:02:51] Speaker 02:
And you've adequately briefed it as far as you're concerned?

[00:02:54] Speaker 01:
Yes.

[00:02:55] Speaker 02:
On the prevailing party, of course, the judge in the Court of Federal Claims is the one who did the remand.

[00:03:03] Speaker 02:
and then reviewed your application under EHAA.

[00:03:07] Speaker 02:
And she said it was not for agency error.

[00:03:12] Speaker 02:
Is that something we have to take as true, at least as to her subjective understanding as to why she ran into the case?

[00:03:21] Speaker 01:
As to her subjective understanding at the time, yes.

[00:03:26] Speaker 01:
We've obviously argued that that's not the only thing that needs to go into determining prevailing party status at the time of each application, especially in this instance where the court has retained jurisdiction.

[00:03:36] Speaker 01:
and the facts, the full context of the record shows that in actuality, when the government requested a remand and conceded that there was no fitness determination in the record, the context of that determination is that the government was admitting error at that point.

[00:03:55] Speaker 00:
But they said explicitly they were not, right?

[00:03:57] Speaker 00:
Yes, that is what the government is saying.

[00:03:59] Speaker 00:
To what extent should, you know, is this kind of almost subjective?

[00:04:03] Speaker 00:
I mean, they're talking about what their motivation is, and they're not conceding the error, right?

[00:04:08] Speaker 00:
What heft should we give to that position, to that one sentence?

[00:04:12] Speaker 01:
Not very much, we would submit, because it is, as you pointed out, a subjective position by the government.

[00:04:18] Speaker 00:
I mean, we- Well, you're saying they were conceding the error.

[00:04:21] Speaker 00:
So where in the motion for remand would you say establishes that they were conceding the error?

[00:04:29] Speaker 02:
And it would be at best an implicit concession of error.

[00:04:31] Speaker 01:
Yes.

[00:04:32] Speaker 02:
You acknowledge they say explicitly they're not.

[00:04:34] Speaker 01:
Yes.

[00:04:36] Speaker 01:
Appendix 43 on the remand motion.

[00:04:41] Speaker 01:
The government explicitly start out by saying that the motion is predicated upon the interest of justice.

[00:04:48] Speaker 01:
But then they go on to say that a remand is necessary because here it is undisputed that neither a PEB nor the ABCMR

[00:04:56] Speaker 01:
have determined whether Mr. Crawford was fit or unfit for the duty at the time of his separation from the Army National Guard.

[00:05:02] Speaker 01:
Thus, even if Mr. Crawford could demonstrate an error in the ABCMR's decision or Dr. O'Donnell's decision, the likely relief would be a remand to the ABCMR to determine, in the first instance, whether Mr. Crawford was unfit for duty at the time of his separation from the Army National Guard and entitled to a displeased retirement.

[00:05:17] Speaker 00:
So your position is they've conceded that

[00:05:20] Speaker 00:
At least the likely relief would be a remand to the ABCMR to determine in the first instance whether.

[00:05:29] Speaker 00:
So they're conceding that wasn't done and it needed to be done.

[00:05:32] Speaker 00:
And that was the error.

[00:05:34] Speaker 01:
Yes.

[00:05:34] Speaker 01:
And that's the error that we've highlighted in our complaint.

[00:05:38] Speaker 01:
This case stems from the fact that Mr. Crawford was erroneously processed in the first instance, as the Army has admitted multiple times.

[00:05:44] Speaker 01:
And had he been correctly processed, he would have been afforded the opportunity for fitness determination.

[00:05:51] Speaker 01:
So we need to look at, while the government says the reason for this was judicial economy, judicial economy can mean a lot of things.

[00:05:58] Speaker 01:
So the next question is, well, what judicial economy?

[00:06:01] Speaker 01:
Why is it judicially economic?

[00:06:03] Speaker 01:
The government explicitly says it's judicially economic because there was no fitness determination in the record.

[00:06:08] Speaker 01:
And then we have to ask ourselves, well, why was there not a fitness determination record?

[00:06:12] Speaker 01:
Was it required?

[00:06:13] Speaker 01:
And we would submit to you, yes, that is what the board found on remand in 2019.

[00:06:20] Speaker 01:
And that is what one of the Army evaluators explicitly found was not what Wright looks like in the Army.

[00:06:26] Speaker 01:
It was clear error.

[00:06:27] Speaker 01:
It's no surprise that when we filed a complaint identifying this error, that the government decided to take a remand.

[00:06:34] Speaker 01:
And we believe that this is an express acknowledgment that the remand is based on that error.

[00:06:38] Speaker 00:
There was some discussion maybe, I'm thinking of a different case, but I think in the briefs about how they thought the three men before they submitted the administrative record.

[00:06:50] Speaker 00:
Are we supposed to take from that that maybe the court of federal claims judge didn't have sufficient information before her?

[00:06:59] Speaker 00:
Or are we supposed to take anything from that timing of doing it before rather than after she could review the administrative record?

[00:07:06] Speaker 01:
Well, I think what you can take from it is that, yes, the administrative record had not been produced at that time.

[00:07:12] Speaker 01:
We don't fault the judge for, at that time, not expressly finding an error.

[00:07:17] Speaker 01:
Certainly, we believe we've identified the errors in the complaint, so she had that in front of her.

[00:07:23] Speaker 01:
But at the time, now we go to the time of EJA application, when she has all of that context,

[00:07:30] Speaker 01:
We would submit that the error is then evident and should have been evident to her that at the time the government was requesting remand, it was actually, in fact, under the standard of Kelly and Davis, predicated on error.

[00:07:43] Speaker 00:
So you do a look back on deciding EJA and she had the opportunity to do a look back?

[00:07:49] Speaker 01:
We think so, yes.

[00:07:50] Speaker 01:
The standard is clear that at the time of each application, the full context of the record needs to be considered.

[00:07:57] Speaker 02:
you reference judicial economy it seems like the government wanted the court to remand at least expressly based on judicial economy whatever that means but if we if we taking our look back think that

[00:08:10] Speaker 02:
there were some interests of judicial economy that were not directly related to agency error.

[00:08:16] Speaker 02:
So essentially, the remand was for mixed reasons, for judicial economy not relating to the error and the error.

[00:08:24] Speaker 02:
So it's sum of both.

[00:08:26] Speaker 02:
Is that sufficient for you to meet your burden to be a prevailing party?

[00:08:29] Speaker 01:
We believe so, yes.

[00:08:31] Speaker 01:
The law cited by the government even expressly acknowledges that a remand based solely on judicial economy would not, we would not be able to meet our burden if it was solely based on judicial economy.

[00:08:44] Speaker 01:
But here in your scenario where there's a mixed bag, we believe that meets the burden, yes.

[00:08:48] Speaker 02:
So that case, and I forget what you want to do, is that implies that you're right.

[00:08:52] Speaker 02:
But have we ever expressly addressed that question of a partially for judicial economy and partially for agency error?

[00:08:59] Speaker 01:
I do not believe that has been expressed.

[00:09:00] Speaker 00:
Isn't there an overlap?

[00:09:02] Speaker 00:
I mean, I'm thinking about, since you suggest it, how we would address it if we did.

[00:09:06] Speaker 00:
There's necessarily, maybe not in all instances, but another, judicial economy and both.

[00:09:11] Speaker 00:
There's an overlap in the factors.

[00:09:13] Speaker 01:
Absolutely.

[00:09:15] Speaker 01:
I don't think there's any question that there could be economy in going back to correct an error, or economy in identifying an error.

[00:09:24] Speaker 01:
And that's why I think that being solely based on error doesn't get you there.

[00:09:29] Speaker 01:
But if there is a mixed bag, as I said, judicial economy in and of itself could mean anything.

[00:09:35] Speaker 00:
Well, that's why I'm having a hard time thinking about what would be judicial economy that's not based on error.

[00:09:41] Speaker 00:
Judge Stark can probably come up with something.

[00:09:45] Speaker 02:
All right.

[00:09:46] Speaker 02:
How about in terms of the record we can look at?

[00:09:49] Speaker 02:
It's unclear to me whether the government is disputing this, but you say at the time of the EAJA application to figure out what the basis of the remand was,

[00:10:04] Speaker 02:
the judge is not limited to only the evidence that was in front of her at the time of the remand decision, right?

[00:10:10] Speaker 02:
Correct.

[00:10:13] Speaker 02:
And I think you further say she could consider everything that's in the record up until that moment of considering the EHAA application, is that right?

[00:10:21] Speaker 01:
Yes, that's correct.

[00:10:23] Speaker 02:
And which of our authorities would you point to for that proposition?

[00:10:26] Speaker 01:
The Davis case talks about looking outside of the four corners of the remand order.

[00:10:32] Speaker 01:
And Kelly, as well, talks about examining the record.

[00:10:37] Speaker 01:
Those are the two primary cases that we relied on.

[00:10:40] Speaker 01:
I think, also, not a Federal Circuit case, but the blue case that we cite, the Court of Appeals for Veterans claims, really articulates it well, where they talk about there's kind of two decision points, right?

[00:10:51] Speaker 01:
There's a decision point at the time of remand.

[00:10:54] Speaker 01:
And there's a decision point that the IJA fact finder has to make a decision.

[00:10:58] Speaker 01:
And the IJA fact finder has maybe different facts than are at the time of remand.

[00:11:03] Speaker 01:
And in that case in particular, the remand order explicitly disclaimed error, said that we don't find any error.

[00:11:10] Speaker 01:
But there, the court found that there was, in fact, an error that predicated the remand.

[00:11:14] Speaker 01:
And that's exactly the type of analysis that we think applies here.

[00:11:18] Speaker 00:
He was pro bono for a while, right?

[00:11:21] Speaker 01:
Mr. Crawford yeah, yes in his first application to the ABC MR or the board rather in 2015 he was not represented and Certainly at the time this is all happened in 2011.

[00:11:35] Speaker 00:
He didn't yes, that's correct.

[00:11:37] Speaker 04:
He did not have legal representation at that time Okay

[00:11:51] Speaker 03:
May it please the court.

[00:11:53] Speaker 03:
Mr. Crawford is not a prevailing party under EJA because the trial court did not remand this case based on administrative error.

[00:11:58] Speaker 03:
Instead, the trial court granted our motion for voluntary remand over Mr. Crawford's objection based solely on judicial economy.

[00:12:05] Speaker 03:
As the trial court succinctly explained in its EJA decision, Mr. Crawford.

[00:12:09] Speaker 04:
I think my problem is both page 43 and 44 of the government's motion for voluntary remand, as opposing counsel argued, seem to

[00:12:21] Speaker 04:
admit error and a need for remand in light of the error, even more glaring than the statement at page 43 is the one at page 44, which just jumped out at me and kind of smacked me in the face.

[00:12:32] Speaker 04:
Accordingly, we are requesting the relief Mr. Crawford would likely receive if he successfully moved for judgment on the administrative record.

[00:12:41] Speaker 04:
That's the government admitting that we're seeking exactly the very relief he could get.

[00:12:47] Speaker 03:
if he succeeded offered judgment administrative record and we never conceded that he would.

[00:12:52] Speaker 04:
That's that's why there's been no one page forty three you conceded that there needed to be a determination of his fitness by either P. E. B. or A. B. C. M. R.

[00:13:02] Speaker 04:
and that that wasn't done and so let's make him a man for that purpose there would there would need to be that determination in order for mister coffer to be granted the relief he sees no there would need to be that return determination full stop right you know no i'm sorry our regulations didn't require that as part of the process of fitness determination though uh... the army regulations didn't didn't necessarily require it when someone is separated

[00:13:28] Speaker 04:
I thought there was a clear army regulation that did, in fact, require that when considering this issue.

[00:13:36] Speaker 03:
So what the ABCMR ultimately decided is that he should have been referred to the physical disability evaluation system.

[00:13:44] Speaker 03:
The first step of a physical disability evaluation system is a medical evaluation board.

[00:13:49] Speaker 03:
That does not make a fitness determination.

[00:13:52] Speaker 03:
So in that case, if the medical evaluation board determines that he doesn't meet medical retention standards, then it would refer to a physical evaluation board.

[00:14:02] Speaker 04:
Wait, they made that determination, right?

[00:14:03] Speaker 03:
No.

[00:14:05] Speaker 03:
A medical evaluation board never evaluated Mr. Crawford in this case.

[00:14:12] Speaker 03:
He was separated based on the evaluation of a different board, a medical duty review board, which is something separate from the physical.

[00:14:21] Speaker 00:
But back to the remand thing.

[00:14:22] Speaker 00:
You say, as the chief pointed out, on 43, it's undisputed that neither the PB nor the ABCMR has determined whether he was fit or unfit for duty at the time of his separation.

[00:14:35] Speaker 00:
Correct.

[00:14:35] Speaker 00:
And then you say the likely relief

[00:14:39] Speaker 00:
notwithstanding, even if he could demonstrate error in the Dr. O'Donnell stuff, the likely leaf would be a remand.

[00:14:47] Speaker 00:
So you're not saying

[00:14:49] Speaker 00:
the absolute relief, but the government is recognizing that the likely relief of that would be remand, right?

[00:14:55] Speaker 03:
If he were successful in demonstrating error.

[00:14:57] Speaker 03:
That's the huge caveat that we put in there.

[00:15:00] Speaker 03:
Even if Mr. Crawford could demonstrate an error in the ABCMR's decision or Dr. O'Donnell's decision, in that case, the likely relief would be a remand to the ABCMR to determine in the first instance whether Mr. Crawford was unfit for duty at the time of his separation.

[00:15:16] Speaker 03:
So we never stated that.

[00:15:19] Speaker 03:
That he should receive the relief of a remand on the merits.

[00:15:23] Speaker 03:
We say that if he were successful on the merits, if the merits were actually adjudicated, which the trial court clearly stated that they weren't, then the likely relief would be a remand.

[00:15:32] Speaker 03:
So that serves judicial economy by

[00:15:35] Speaker 03:
simply allows us to bypass the merits entirely, simply get the fitness determination so that if for two reasons, A, he could get the relief he's seeking, which is what actually ended up happening here, and then the court doesn't need to adjudicate the merits at all.

[00:15:51] Speaker 03:
Or if the court determines, or excuse me, if the ABCMR determines that he was fit for duty, then the court will have that record to review.

[00:16:00] Speaker 03:
And it can review the actual fitness determination.

[00:16:02] Speaker 00:
They would determine he was fit for duty.

[00:16:04] Speaker 00:
How would they do it?

[00:16:05] Speaker 00:
By a current exam or going back into the record back in 2010?

[00:16:09] Speaker 03:
By the records, yes.

[00:16:10] Speaker 03:
Going back into the records in 2011.

[00:16:12] Speaker 00:
The first sentence of this page 43 you say, and it's not predicated on admission of error by the United States,

[00:16:20] Speaker 00:
What do we have to do with that?

[00:16:22] Speaker 00:
I mean, I don't know.

[00:16:25] Speaker 00:
I haven't seen enough of these cases.

[00:16:26] Speaker 00:
Are there cases where the government would come in and say, this motion is predicated on an admission of error of the government?

[00:16:33] Speaker 00:
Does the government ever do that?

[00:16:34] Speaker 03:
I don't know if we necessarily say that explicitly, but there may be times where we come in and say, so it's just the Monroe case.

[00:16:42] Speaker 00:
OK, but are you entitled to any deference?

[00:16:45] Speaker 00:
I mean, whether or not you admit error, does that affect

[00:16:50] Speaker 00:
our decision making.

[00:16:52] Speaker 00:
Obviously, it would make it easy if you admitted error.

[00:16:54] Speaker 00:
But if you don't admit error, it's still, we look at the record and we decide what we decide.

[00:17:01] Speaker 00:
There's no requirement that you admit error in order for the other side to get each of these, right?

[00:17:05] Speaker 03:
There's no requirement that we admit error.

[00:17:07] Speaker 03:
That shows that we didn't concede error.

[00:17:09] Speaker 03:
It doesn't necessarily show whether or not the trial court based the remand upon error.

[00:17:15] Speaker 03:
But in this case, the trial court determined correctly that it did not base the remand upon error.

[00:17:25] Speaker 00:
discretion, we have no authority to overturn that decision, right?

[00:17:29] Speaker 00:
We can review that decision, right?

[00:17:31] Speaker 03:
This court can review the decision, but what the court shouldn't do, what Mr. Crawford wants the court to do now is to go back and look and make the determination that the remand obviated the need for the trial court to make.

[00:17:42] Speaker 03:
Mr. Crawford wants the court to go in now and say,

[00:17:45] Speaker 03:
There was error.

[00:17:46] Speaker 03:
He should have been given a fitness determination, and therefore he's the prevailing party.

[00:17:52] Speaker 03:
But the trial court never substantively considered that issue.

[00:17:55] Speaker 03:
The trial court granted the remand solely based for reasons of judicial economy as claimed.

[00:18:02] Speaker 04:
Was there any dispute over the fact that he was in fact discharged for failing to meet medical retention standards?

[00:18:08] Speaker 04:
That's correct.

[00:18:10] Speaker 04:
And doesn't AR 40-501 10-25 require a PEB fitness determination for, quote, soldiers pending separation for failing to meet medical retention standards?

[00:18:23] Speaker 03:
So if he's being separated, not in the line of duty, it would allow him to request a PEB?

[00:18:28] Speaker 04:
No, not allow him to request.

[00:18:29] Speaker 04:
It requires a PEB fitness.

[00:18:31] Speaker 04:
AR 40-501.

[00:18:38] Speaker 03:
Is there an appendix?

[00:18:40] Speaker 03:
Are you looking at the appendix there?

[00:18:43] Speaker 04:
Well, it's cited throughout, but I have it here.

[00:18:45] Speaker 04:
I'll give you my comment.

[00:18:46] Speaker 03:
My understanding is that if being separated for not in the line of duty, then the soldier can request a PEB.

[00:18:55] Speaker 03:
And that PEB will determine fitness.

[00:18:57] Speaker 03:
It will not determine disability benefits, though.

[00:18:59] Speaker 03:
If being separated in the line of duty, then there's

[00:19:03] Speaker 03:
the soldier doesn't meet medical retention standards, then he would be referred to the physical disability evaluation system, the first step of which is the MEB, which does not make a fitness determination either.

[00:19:13] Speaker 03:
If the MEB then makes the determination after all its examinations that he fails medical retention standards, then it would go to a PEB for fitness determination.

[00:19:24] Speaker 00:
Okay, so none of that clearly, it's undisputed, none of that happened here.

[00:19:28] Speaker 00:
So they ultimately awarded, on what basis did he get his award of complete retractive relief?

[00:19:35] Speaker 03:
Because we remanded for the A-B-C-M-R is also competent to make fitness determinations.

[00:19:41] Speaker 03:
The P-E-B and the A-B-C-M-R can both do that.

[00:19:43] Speaker 03:
So we remanded directly to the A-B-C-M-R, or we requested that the court remand directly to the A-B-C-M-R and instruct the A-B-C-M-R to make a fitness determination, determine if he's fit for duty, in which case he shouldn't.

[00:19:58] Speaker 00:
Saying that a fitness determination was required.

[00:20:01] Speaker 03:
No, we never said that a fitness.

[00:20:03] Speaker 03:
I mean, the remand order required a fitness determination, because we asked the court to do that on the basis of judicial economy.

[00:20:10] Speaker 03:
But the court never made a finding that a fitness determination was required, never made a finding that it was error for there not to have been a fitness determination.

[00:20:19] Speaker 02:
But that was the ultimate finding of the Army on the remand, correct?

[00:20:22] Speaker 02:
That this all should have happened at the beginning.

[00:20:25] Speaker 03:
Well, then he should have been referred to the physical disability evaluation system.

[00:20:29] Speaker 02:
And further, I think, that there was error right at the outset that this wasn't done, that the disability was not incurred in connection with the line of duty.

[00:20:42] Speaker 02:
That was the original error, correct?

[00:20:46] Speaker 03:
I don't know if the board expressly found that, but yeah, the injury was incurred in line of duty.

[00:20:52] Speaker 02:
the regulations were mandatory or discretionary.

[00:20:58] Speaker 02:
The problem for you is that this all started 10 years ago with a fundamental error on behalf of the agency in saying that his PTSD was not incurred in the line of duty when we know now it clearly was.

[00:21:11] Speaker 03:
But the trial court never made a determination.

[00:21:13] Speaker 02:
I'm not talking about the trial court.

[00:21:14] Speaker 02:
That is what we know after the remand.

[00:21:18] Speaker 02:
Would you agree with that?

[00:21:19] Speaker 03:
After the remand, yes.

[00:21:21] Speaker 02:
And that's the ultimate determination of the agency, of the army, correct?

[00:21:26] Speaker 03:
after the remand.

[00:21:27] Speaker 03:
That there was error and that he is entitled to disability retirement.

[00:21:30] Speaker 02:
Because it was a line of duty and he should have been submitted to the PEB or MEB or ABCMR, right?

[00:21:37] Speaker 03:
To the Physical Disability Evaluation System, starts with an MEB, yes.

[00:21:41] Speaker 02:
Can I ask you, because you're emphasizing the solely, the same point that I discussed with your friend on the other side, does that mean that you agree if we were to conclude that the remand here was at least part due to agency error,

[00:21:56] Speaker 02:
and not solely due to judicial economy, that he would meet his burden for prevailing party.

[00:22:03] Speaker 03:
If the court were to determine that the remand was predicated on agency error, then yes, even if there were other.

[00:22:10] Speaker 03:
At least in part.

[00:22:11] Speaker 03:
Yes.

[00:22:12] Speaker 03:
But the trial court didn't predicate the remand on agency error.

[00:22:16] Speaker 03:
That's the main point here, I think, that we want to make is that the trial.

[00:22:21] Speaker 02:
Sorry, then.

[00:22:22] Speaker 02:
And this question, I think, came up from Judge Proats.

[00:22:25] Speaker 02:
What does judicial economy mean here if it doesn't mean something affected, at least in part, by the agency error?

[00:22:33] Speaker 03:
Well, in this case, it meant that the trial court doesn't need to determine whether or not Mr. Crawford was entitled to a fitness determination.

[00:22:41] Speaker 03:
Rather, the fitness determination is going to aid the court in one of two ways, either by if the fitness determination is, if he's determined unfit and granted disability

[00:22:52] Speaker 03:
disability retirement, that's likely going to make the case go away, which it did.

[00:22:57] Speaker 03:
Or in the alternative, if he's determined fit for duty, then the trial court's going to have that record to review now.

[00:23:04] Speaker 03:
It can review the full case then and determine whether or not the ABCMR

[00:23:10] Speaker 03:
was rational in determining whether he should.

[00:23:11] Speaker 02:
So why isn't that an implicit concession that the judicial economy is furthered, at least in part, because we, the Army, fear that it's likely, if we force you to make this determination according to federal claims, you're going to find that there's agency error.

[00:23:29] Speaker 02:
Because the government doesn't walk in and ask for remand in all cases.

[00:23:33] Speaker 02:
So why doesn't that at least show that part of

[00:23:40] Speaker 02:
the judicial economy argument was we don't want to, we want to spare this trial court the effort because we have serious concerns, which I think you even put in your motion, we have concerns that you're going to find error here.

[00:23:55] Speaker 03:
Having concerns is not the same as conceding that the government actually aired.

[00:23:59] Speaker 03:
I mean, we need to look, there's two things that the trial court

[00:24:02] Speaker 03:
really could have reviewed here had this gone to the merits.

[00:24:05] Speaker 03:
One is the ABCMR's decision of what relief to grant him after finding he was entitled to partial relief, and then Dr. O'Donnell's decision that he did not fail medical retention standards at the time that he was separated.

[00:24:20] Speaker 03:
We have not conceded that either of those decisions was erroneous here.

[00:24:25] Speaker 04:
Well, isn't there a third thing that the trial court could have found?

[00:24:28] Speaker 04:
In his complaint at page 12, he also alleges

[00:24:32] Speaker 04:
that as acknowledged by the ABCMR, the Army failed to properly notify Mr. Crawford and his actions entitled him to a request to hearing in front of the PEB prior to his separation.

[00:24:43] Speaker 04:
This is the same Army regulation I brought up with you before.

[00:24:46] Speaker 04:
So he alleges that there was a failure of the Army to notify him.

[00:24:49] Speaker 04:
And then in the relief slot, he expressly requests the PEB hearing with the medical fitness determination.

[00:24:56] Speaker 04:
So isn't the third thing that the trial court could have found in this case

[00:24:59] Speaker 04:
is that the army erred by not informing him that he was entitled to this fitness determination according to this army regulation.

[00:25:07] Speaker 03:
Well, but the trial court has to review the ABCMR decision.

[00:25:10] Speaker 03:
I think the ABCMR noted that argument.

[00:25:17] Speaker 03:
So if the trial court says that the relief the ABCMR granted was improper based on his argument that he should have been notified of the possibility of requesting a fitness determination by the PEB,

[00:25:31] Speaker 03:
I suppose the trial court could have reviewed that on the merits in the context of the ABCMR decision.

[00:25:36] Speaker 03:
But ultimately, it's the ABCMR decision, and then in this case, Dr. O'Donnell's later decision, that would be reviewed by the trial court.

[00:25:43] Speaker 03:
And we didn't concede that either of those decisions were improper.

[00:25:48] Speaker 00:
And so this is a legal question, and I should know it.

[00:25:51] Speaker 00:
But we don't get very many major cases.

[00:25:53] Speaker 00:
So I don't know it on top of mine, which is

[00:25:56] Speaker 00:
The statute requires the court find that the position of the United States was substantially justified.

[00:26:05] Speaker 00:
We keep talking about error, that we have to establish that there was error.

[00:26:09] Speaker 00:
Is there a difference between substantially justified and error?

[00:26:13] Speaker 03:
Yes, the substantial justification question is a separate question.

[00:26:18] Speaker 03:
If Mr. Croft, and you don't reach the substantial justification question unless the plaintiff is a prevailing party, the question is whether, even though the court found against the government in the case, was the government's position nevertheless substantially justified?

[00:26:34] Speaker 03:
Was it reasonable in law effect?

[00:26:38] Speaker 00:
In this case, I just don't remember.

[00:26:41] Speaker 00:
Even so, the position of the US was substantially justified.

[00:26:45] Speaker 00:
Are you making that argument?

[00:26:47] Speaker 03:
That is our position, yes.

[00:26:49] Speaker 03:
We took that position before the trial court.

[00:26:50] Speaker 03:
The trial court didn't address it because it determined that Mr. Crawford was not a prevailing party.

[00:26:56] Speaker 03:
argued in the alternative that even if the court finds that Mr. Crawford is a prevailing party, that it should affirm on the alternative basis that our position was substantial.

[00:27:08] Speaker 02:
You have the burden on that, but you're content for us to decide that in the first instance based on the briefing to us.

[00:27:14] Speaker 02:
Is that right?

[00:27:15] Speaker 02:
Yes, that's correct.

[00:27:18] Speaker 04:
If we were to conclude that there was error

[00:27:23] Speaker 04:
and that you basically implicitly admitted error.

[00:27:25] Speaker 04:
Just assume that.

[00:27:26] Speaker 04:
I know you argue against that.

[00:27:29] Speaker 04:
But if we were to conclude that you admitted there was error in the government's failure to give him this fitness evaluation, and that's what the remand was for, what would be your substantial justification then?

[00:27:43] Speaker 03:
Well, because the court stated that the government needs to demonstrate that it hasn't taken tenuous positions throughout the litigation.

[00:27:52] Speaker 03:
In this case, since the case has gone to the ABCMR, the government has been working to

[00:28:01] Speaker 03:
to try to rectify any errors in Mr. Crawford's separation.

[00:28:04] Speaker 03:
The ABCMR granted him relief in the form of processing that they could have led to a disability retirement.

[00:28:11] Speaker 03:
Now, Dr. O'Donnell ultimately determined that he didn't fail medical retention standards, so he shouldn't be referred to the physical disability evaluation system.

[00:28:20] Speaker 03:
We've explained in our briefing why we believe that that was a reasonable determination.

[00:28:28] Speaker 03:
Once it came to the trial court, we sought a remand.

[00:28:33] Speaker 03:
And it was granted.

[00:28:35] Speaker 00:
Well, so some white folks must have gone on between going up and they filed an appeal to the Court of Federal Claims

[00:28:44] Speaker 00:
And you suddenly, what happened between the time you prevailed below, or he lost below, and the time that you asked for a remand?

[00:28:54] Speaker 03:
Well, look, we looked at the facts of the case.

[00:28:56] Speaker 03:
And we stated this in our reply brief explicitly, where we

[00:29:07] Speaker 03:
Let me find the exact language here.

[00:29:11] Speaker 03:
We looked at the fact that this is a page of appendix 59.

[00:29:15] Speaker 03:
And so you've got a situation where Mr. Crawford was

[00:29:19] Speaker 03:
He was separated because he failed medical retention standards.

[00:29:24] Speaker 03:
Dr. O'Donnell comes in later and says, no, he actually met medical retention standards in 2011.

[00:29:29] Speaker 03:
We're not saying that Dr. O'Donnell was wrong or even unreasonable.

[00:29:33] Speaker 03:
But nevertheless, we get these two conflicting views on whether he met medical retention standards.

[00:29:39] Speaker 03:
Wouldn't it make sense to send this to the ABCMR to make the ultimate fitness determination and allow the court to review that if the fitness determination is

[00:29:48] Speaker 03:
I guess you'd call it unfavorable to Mr. Crawford, even though he would be found fit in that situation.

[00:29:53] Speaker 03:
And we said this.

[00:29:54] Speaker 03:
Although we do not concede that the ABCMR's choice of remedy was an abuse of discretion or that Dr. O'Donnell's subsequent determination was irrational, we recognize the unusual posture of this case and believe that a fitness determination by a competent board would be in the interest of justice.

[00:30:08] Speaker 00:
Because there was a conflict in the record, and you couldn't justify making a decision.

[00:30:12] Speaker 00:
Good for you.

[00:30:13] Speaker 00:
I mean, thank goodness.

[00:30:14] Speaker 00:
This is the government arguing here.

[00:30:16] Speaker 00:
You recognize that you couldn't make an argument because of the conflicting testimony.

[00:30:20] Speaker 00:
You couldn't make a good-faith argument.

[00:30:22] Speaker 03:
No, no.

[00:30:24] Speaker 03:
We didn't recognize that we couldn't make an argument.

[00:30:26] Speaker 03:
We expressly stated we're not conceding that Dr. O'Donnell's determination on the

[00:30:32] Speaker 03:
on the medical attention standards was irrational.

[00:30:35] Speaker 03:
But what we are saying is that in light of the fact that we've got these conflicting decisions, it's the interest of justice that it makes sense for why don't we just have the board make the fitness determination?

[00:30:47] Speaker 03:
Why debate the merits about whether the board should have made a fitness determination earlier or whether a PEB, he should have gotten a PEB earlier?

[00:30:56] Speaker 03:
We don't need to get into any of that.

[00:30:58] Speaker 03:
Why not simply give

[00:30:59] Speaker 03:
You have the board do a fitness determination, and then that obviates the needs to decide the merits.

[00:31:04] Speaker 03:
And what Mr. Crawford, the standard Mr. Crawford wants us to do now is even though the trial court based its remand order on judicial economy and not on agency error and expressly stated that she never substantively considered the merits of the case, now Mr. Crawford is saying the trial court should have at the age of stage now gone and done the analysis

[00:31:25] Speaker 03:
that the remand obviated the need for it to do.

[00:31:28] Speaker 03:
And that's not what Thompson says.

[00:31:30] Speaker 03:
That's not what Vaughn says.

[00:31:32] Speaker 03:
And so for those reasons, the trial court's judgment should be affirmed.

[00:31:36] Speaker 04:
OK, thank you.

[00:31:48] Speaker 01:
Thank you, Your Honors.

[00:31:49] Speaker 01:
May it please the Court.

[00:31:51] Speaker 01:
I want to make two main points in rebuttal.

[00:31:53] Speaker 01:
First, I think the line of questioning regarding the error is exactly right.

[00:32:00] Speaker 01:
There was an error because Mr. Crawford was not afforded process, and an error that he was not

[00:32:06] Speaker 01:
medically retired.

[00:32:08] Speaker 01:
I mean the board had the authority to do that in 2017 when the case was before it and it chose neither of those paths.

[00:32:15] Speaker 01:
Instead it sent Mr. Crawford on some extra regulatory detour to Dr. O'Donnell.

[00:32:21] Speaker 01:
That was all clearly laid out in our complaint and that goes to the question of whether the lack of a predicate fitness determination was an error.

[00:32:29] Speaker 01:
The second point on substantial justification, my friend talked a little bit about that and I want to address that directly.

[00:32:38] Speaker 01:
The standard on substantial justification as articulated in the briefs is the matter as a whole.

[00:32:42] Speaker 01:
It's not just the position when it comes to litigation in the government.

[00:32:46] Speaker 01:
So we have to look at what happened at the agency beforehand, what happened at the ABCMR beforehand.

[00:32:51] Speaker 01:
No reasonable person could look at this course of conduct and decide that the government's position as a whole was substantially justified.

[00:32:59] Speaker 01:
Contemporaneous documentation in the record at the time of his discharge acknowledges that he should have been processed in accordance with in the line of duty procedures.

[00:33:08] Speaker 01:
The Army admitted he was not.

[00:33:10] Speaker 01:
He should have been, even in those procedures, he should have been afforded a PEP process.

[00:33:15] Speaker 01:
He was not.

[00:33:16] Speaker 01:
He then had to pro se try to appeal this to the board in 2015 where he put these issues

[00:33:22] Speaker 01:
by himself, good for him, squarely in front of the board.

[00:33:26] Speaker 01:
And the board punted.

[00:33:28] Speaker 01:
It went outside of regulation.

[00:33:29] Speaker 01:
It arbitrarily and capriciously decided that and resulted in him not getting either of the things that he was entitled to.

[00:33:37] Speaker 01:
Then we had to bring this litigation.

[00:33:39] Speaker 01:
We had to go and remand.

[00:33:40] Speaker 01:
We had to fight on remand through multiple rounds of additional medical opinions, all for the board.

[00:33:46] Speaker 01:
the same board, to decide, you know what, there was enough evidence in this record at the time of his discharge to determine two things.

[00:33:55] Speaker 01:
One, substantial injustice.

[00:33:57] Speaker 01:
Those are the board's words.

[00:33:59] Speaker 01:
Occur.

[00:34:00] Speaker 01:
And two, that he should have been found unfit and medically retired based on the evidence at the time of service separation.

[00:34:11] Speaker 01:
I would submit to you that this is not only a case where the government cannot prove that they were not substantially justified, but this is a textbook case of why EJA should apply and is consistent with the court's opinions on EJA and the purpose behind EJA, which is not to deter veterans from bringing their cases.

[00:34:30] Speaker 01:
If Mr. Crawford did not have the good fortune to obtain our representation, these clear errors may never have been found.

[00:34:38] Speaker 01:
And it is only fair at this point that because we have fully prevailed, because the government remanded really, in fact, on the basis of these errors that Mr. Crawford received his attorney's fees and that those fees can be passed to the National Veterans Legal Services Program to help further veterans like Mr. Crawford.

[00:34:58] Speaker 01:
Thank you.