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NVLSP: Announces Crawford Federal Circuit Win

Released 4/27/23 | Tags: Veteran's Benefits

Federal Circuit Invalidates Denial of Fees for
Medical Retirement Won on Remand

-Court holds veteran was prevailing party
Despite government’s refusal to concede error -


ARLINGTON, VA —On April 26, 2023, the United States Court of Appeals for the Federal Circuit ruled in favor of John Crawford, a medically retired Army veteran suffering from combat-related Post-Traumatic Stress Disorder (“PTSD”).   A Soldier who is medically retired is entitled to monthly retirement payments and military medical care (“Tricare”) for the servicemember, his or her spouse, and the servicemember’s children while they remain dependents. 

Federal law requires that a service member be medically retired when they suffer from a disability, rated 30 percent or more, that renders him unfit for military service.  Despite this statutory mandate, Mr. Crawford was denied a medical retirement at discharge and again by the Army Board for Correction of Medical Records (BCMR) for a medical retirement. He then appealed to the Court of Federal Claims, and the government sought a voluntary remand, noting that the Army had not previously provided a fitness finding. On remand back to the BCMR, the Army found that there had been numerous errors in his disability processing. The BCMR concluded that the veteran’s PTSD was unfitting at his discharge and awarded Mr. Crawford medical retirement. Despite this clear victory, the Court of Federal Claims found that Mr. Crawford was not a prevailing party and denied him Equal Access to Justice Act (EAJA) fees for his counsel’s work, based on the government’s refusal to acknowledge error in the voluntary remand motion. Mr. Crawford is represented by the National Veterans Legal Services Program (NVLSP) and Crowell & Moring LLP. 

On appeal, the Federal Circuit refused to permit the government to defeat an EAJA fee petition by disclaiming error. The Federal Circuit stated that courts are not bound by the government’s characterization of its conduct or admission of error. Instead, when determining whether a Plaintiff is a prevailing party, a court must look beyond the four corners of the remand motion to the evidentiary record.  The Federal Circuit, examining the administrative record before it, determined that the Government had made an implicit concession of error. The government had admitted in its request for a remand that the veteran did not receive a fitness determination prior to his discharge or during his pre-remand BCMR proceeding. On remand, the BCMR found that he was unfit due to PTSD. The court stated: “viewed in the context of the full evidentiary record, the government’s admissions that [the veteran] did not receive a fitness determination were, in fact, implicit admissions of error.” As a result, the Federal Circuit held that the Court of Federal Claims had erred in its finding that the veteran was not a prevailing party under EAJA.

In reaching its decision, the Court admonished the government for its treatment of Mr. Crawford, concluding that “the government’s repeated demands for additional assessments and evidence were unnecessary in view of the records the government had already possessed for eight years.” The Federal Circuit further noted that an Army Advisory Opinion “denounced the government’s failures,” explicitly noting the errors in the prior handling of the case. The appellate court also quoted the Medical Advisor’s “dismay at the treatment” of the veteran and his conclusion that “This is absolutely not what right looks like in the Army.” The Federal Circuit found that permitting the veteran to seek correction of errors did not justify “the government’s unwarranted opposition throughout the remainder of those proceedings.” The case has been remanded to the Court of Federal Claims to determine the amount of fees.

“Nonprofit organizations rely upon EAJA fees to support important work to reverse wrongful denial of benefits to veterans. This decision will hopefully enable more veterans to obtain legal representation to reverse erroneous denials of medical retirement. We are grateful to the Federal Circuit for its recognition of the Army’s multiple errors in denying medical retirement, regardless of the government attorney’s refusal to concede any error.” said Rochelle Bobroff, Director of the Lawyers Serving Warriors®, Pro Bono Program of NVLSP.

“It has been an honor for Crowell to represent Mr. Crawford, who was injured in the service of the United States, in his years-long effort to recover the benefits he earned through his service.  This decision is an important milestone for Mr. Crawford and Veterans across the country, and stands for the principle that the United States must pay its debts.  We look forward to working with our partners at the NVLSP to recover Mr. Crawford’s legal fees under the Equal Access to Justice Act, so that those funds can be put to use helping more Veterans like Mr. Crawford obtain justice,” said Steve McBrady, a partner at Crowell & Moring LLP and co-chair of the firm’s Government Contracts Group.

If you are a veteran who was denied a medical retirement, NVLSP encourages you to learn more at https://www.nvlsp.org/what-we-do/lawyers-serving-warriors/medical-retirement.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.4 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to www.nvlsp.org.

About Crowell & Moring LLP
Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia. Drawing on significant government, business, industry and legal experience, the firm helps clients capitalize on opportunities and provides creative solutions to complex litigation and arbitration, regulatory and policy, and corporate and transactional issues.  The firm is consistently recognized for its commitment to pro bono service and its programs and initiatives to advance diversity, equity and inclusion. 

Media contact:
For NVLSP: Patty Briotta, 202-621-5698, patty@nvlsp.org
For Crowell: prteam@crowell.com

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