A correction board denied your petition, and you are weighing a federal lawsuit. So you are probably asking a practical question: who pays for it? Under the Equal Access to Justice Act, a veteran who prevails against the government in federal court may recover EAJA attorney fees from the United States. On August 7, 2026, a federal judge in Washington, D.C. did exactly that. He awarded $90,000 to a retired Naval officer. The Board for Correction of Naval Records had repeatedly denied that officer a medical retirement. Here is how the rule works, and where it stops.
By Kevin Courtney, Esq. | Former USMC Judge Advocate | California Attorney
What the Equal Access to Justice Act Actually Does
Congress passed the Equal Access to Justice Act in 1980 for a straightforward reason. Litigating against the federal government is expensive, and that expense discourages people with legitimate claims from ever filing. The statute shifts some of that cost back to the government when the government litigates a position it should not have taken.
The core provision is 28 U.S.C. § 2412(d)(1)(A). It directs that a court “shall award to a prevailing party other than the United States fees and other expenses” in any civil action against the government. That language expressly covers “proceedings for judicial review of agency action.” Two exceptions apply: a position that was “substantially justified,” and special circumstances making an award unjust.
Notice the word “shall.” Once you satisfy the requirements, the award is not a matter of judicial grace. To recover EAJA attorney fees, however, you must clear four hurdles:
- You were a prevailing party.
- The government’s position was not substantially justified. On this element the government must demonstrate the reasonableness of both its litigation position and the agency’s own actions.
- No special circumstances make an award unjust.
- You meet the statute’s eligibility threshold — for an individual, a net worth under $2 million when the case was filed.
Finally, the amount you request must be reasonable. Courts calculate that figure by multiplying the hours reasonably spent by a reasonable hourly rate.
How Markel v. Hung Cao Produced a $90,000 EAJA Attorney Fees Award
The case is Markel v. Hung Cao, No. 22-1389 (D.D.C. Aug. 7, 2026), decided by Judge Richard J. Leon. The facts will feel familiar to anyone who has fought a medical retirement case.
James Markel served in the Navy for more than five years. While deployed, he began experiencing anxiety, difficulty breathing, a rapid heartbeat, and difficulty sleeping. He also reported thoughts of running the ship aground and fighting his shipmates. He was evacuated to a naval hospital in Spain, where he received a diagnosis of Bipolar I Disorder, and then returned to the United States for treatment.
A determination followed that he was “not psychiatrically fit for full duty,” and he moved to administrative duty. The Navy later changed his diagnosis to Major Depressive Disorder. It then found him fit to perform the duties of his office, grade, or rank. Later, however, he was disqualified from submarine duty, nuclear field duty, sea duty, and deployment. In March 2009, the Navy honorably discharged him without a medical retirement.
Markel petitioned the BCNR in 2015 to correct his record. The board denied him. He sued, the court sent the case back for a voluntary remand in 2022, and the board denied him again. He returned to court.
On January 27, 2025, Judge Leon found that the BCNR “failed to adequately grapple with evidence of plaintiff’s inability to perform his common military tasks associated with service at sea.” He held the decision both arbitrary and capricious and unsupported by substantial evidence, then vacated it and remanded. Markel moved for EAJA attorney fees, and the court granted that motion in full.
Why the Veteran Counted as a Prevailing Party
The government disputed that Markel had prevailed at all. It raised two grounds, and both failed.
In the D.C. Circuit, a fee applicant is a prevailing party when three things are true. There must be a court-ordered change in the legal relationship of the parties. The judgment must favor the party seeking fees. And the ruling must come with judicial relief. Judge Leon found all three. Vacating the board’s decision, he explained, placed the agency “under an obligation to consider [plaintiff’s application] afresh.”
Two points here matter a great deal in practice.
First, you do not have to win everything. Markel lost one of his three claims. That did not reduce his award, because a party prevails under the EAJA even when success is only partial.
Second, you do not have to win on remand. The court was explicit that a remand order confers prevailing party status “without regard to the outcome on remand.” In fact, the board denied Markel again after the remand, and he filed a separate lawsuit challenging that new decision. The judge held that this did not undermine his fee request at all.
The government’s first ground was that the court may have kept jurisdiction after the remand. Judge Leon disagreed, pointing to his own order. He had dismissed the case, set no deadline for the board, and required no status reports.
Its second ground was Lackey v. Stinnie, 604 U.S. 192 (2025). There the Supreme Court addressed a narrow question: whether a party who wins only a preliminary injunction prevails when the case becomes moot before final judgment. Judge Leon rejected the analogy. His summary judgment ruling decided the merits and ended the litigation in Markel’s favor. As a result, Lackey did not apply.
Why the Government’s Position Was Not Substantially Justified
This is the hurdle most fee petitions die on, and it is where the Markel analysis is genuinely useful.
A position is substantially justified if a reasonable person could think it correct — in other words, if it has a reasonable basis in law and fact. Importantly, the government must defend the reasonableness of two separate things: its litigation position in court, and the agency’s underlying conduct. Losing a case does not automatically mean the government’s position was unjustified.
Here, though, the board’s reasoning contained a contradiction. The BCNR acknowledged that Markel had not been “medically cleared to return to sea duty.” In the same decision, it concluded that he could still learn and perform a wide variety of technical tasks associated with service aboard ships. The court called that contradiction “perplexing” and found the decision was not rationally connected to the facts.
Because the board’s conclusion lacked a reasonable factual basis, its position was not substantially justified — and neither was the government’s decision to defend it. That is the practical lesson: when a board contradicts its own record, the same defect that wins the merits case often wins the fee petition.
What Defeats an EAJA Attorney Fees Request
Four problems come up repeatedly. Each one is avoidable.
The 30-day clock. You must file the fee application within 30 days of final judgment. This deadline is short and unforgiving, and the application must include itemized time records.
Retained jurisdiction. If the court keeps jurisdiction after remanding, the litigation is still ongoing. Any fee motion must then wait for final judgment. As Markel shows, the shape of the remand order matters.
Substantial justification. If the agency’s decision was merely wrong rather than unreasonable, the government may still defeat the request.
Unreasonable hours. Markel’s attorneys initially documented nearly 600 hours across roughly 500 billing entries. They then voluntarily cut the request by 223 hours — about 38 percent. The court specifically credited that reduction when it found the request reasonable. Restraint in a fee petition is strategic, not merely polite.
What EAJA Attorney Fees Mean for Your Case
Be clear-eyed about what this statute does and does not do. The EAJA is a reimbursement mechanism, not a funding mechanism. It pays nothing up front, and it pays nothing at all if you lose.
In practice, a veteran retains counsel and pays for the representation. Then two things must happen. The court must vacate the board’s decision, and the government must fail to show its position was substantially justified. Only then may counsel petition for EAJA attorney fees. That petition may recover some or all of what you spent. It also may recover nothing.
Three further limits deserve mention. First, the statute caps fees at $125 per hour, though courts routinely allow an increase for cost of living. Second, the award is payable to you, the litigant, rather than directly to your lawyer. Consequently, the government may offset it against federal debts you already owe. Third, EAJA attorney fees are also available in the U.S. Court of Federal Claims. That matters when your claim involves back pay.
Timing matters too. You generally must file a correction board application within three years of discovering the error or injustice. However, the board may excuse that deadline in the interest of justice. You generally must file a civil action against the United States within six years after the right of action accrues.
If a board has denied you and you are considering federal court, the fee question should be part of that conversation from the start. Request a case review and tell us what the board decided and when.
How This Fits With Correcting a Military Record
Federal court review is the last step, not the first. Boards decide most records cases, and courts review those decisions under a deferential standard. A judge asks whether the board acted arbitrarily, not whether the judge would have decided differently.
That is why the record you build at the board stage determines what a court can do later. Markel is a good illustration. The veteran won in court because the administrative record contained evidence of his inability to perform tasks at sea, and the board never adequately grappled with it.
If you are earlier in this process, these may help:
- Working with a military records correction attorney on a BCMR or BCNR petition
- What Ford v. United States teaches about suing the BCNR
- Military disability retirement and the BCMR
Frequently Asked Questions
Do I qualify financially for EAJA attorney fees?
An individual applicant must have had a net worth under $2 million when the civil action was filed. Most individual veterans meet this threshold comfortably.
What if I only win part of my case?
Partial success is still success. Markel lost one of three claims and recovered his full requested award.
Does the EAJA apply in the Court of Federal Claims?
Yes. The statute defines “court” to include the U.S. Court of Federal Claims, so the same framework applies there.
Who actually receives the money?
The award goes to the litigant rather than the attorney. As a result, the government may apply it against federal debts you owe.
What if the board denies me again after the remand?
That does not eliminate your fee claim. In Markel, the board denied the veteran on remand, and the court still awarded fees in full.
Do I still owe my attorney if the court rules against me?
Yes. The EAJA reimburses fees only when you prevail, so your engagement with counsel is separate from any later fee petition.
This article is general information and is not legal advice. Every case is different, and outcomes depend on the record, the requested relief, the applicable board, and the strength of the evidence. Past results do not guarantee future outcomes. If you have questions about your situation, speak with a qualified military law attorney.
Talk With a Military Records Attorney
A board denial is not always the end of the matter, and the cost of federal review is not always yours to carry alone. If a BCMR or BCNR decision contradicts its own record, you may have both a viable case and a viable fee claim.
Courtney Military Law Group represents service members, veterans, and retirees nationwide in records corrections and federal court review. Request a case review, and include your branch, the board involved, the date of the denial letter, and a short description of the error you are challenging.
