Machado v. US Army, Secretary

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey Machado
v. Case No. 1:25-cv-42-PB-TSM
Opinion No. 2026 DNH 133
Adam R. Telle,
Acting Secretary of the Army1
MEMORANDUM AND ORDER
Plaintiff Jeffrey Machado obtained a favorable decision from this Court
which set aside the Army Discharge Review Board (“the Board”)’s refusal to
upgrade his discharge characterization. See Machado v. Driscoll, 2026 DNH
029, 2026 WL 851209 (D.N.H. Mar. 26, 2026). He now seeks reimbursement
for attorney’s fees and costs incurred under the Equal Access to Justice Act
(“EAJA”). See 28 U.S.C. § 2412(d). I grant his motion in part.
I. BACKGROUND2
In September 2014, after nearly four years of service in the Army,
Machado was discharged from duty with an “Other Than Honorable”
1 Pursuant to Federal Rule of Civil Procedure 25(d), Acting Secretary of
the Army Adam R. Telle is automatically substituted for former Secretary
Daniel P. Driscoll. See Fed. R. Civ. P. 25(d).
2 I reiterate the case’s history only to the extent relevant to Machado’s
motion for fees and costs. For a more detailed background, see my prior order.
See Machado, 2026 WL 851209.
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characterization. Machado, 2026 WL 851209, at *5. Machado’s discharge and
its characterization resulted from disciplinary proceedings initiated against
him after a series of domestic altercations with his now-former wife. See id.
at *4-5. After being diagnosed with major depressive disorder, post-traumatic
stress disorder (“PTSD”), and traumatic brain injury (“TBI”) following his
separation from service, Machado applied for review of his discharge. Id. at
*5. He asked the Board to upgrade his discharge characterization to
“Honorable” in light of these post-separation diagnoses, among other
evidence. Id. The evidence he presented in support of his application included
a medical report and sworn affidavit by Dr. Sandra A. Dixon, Psy.D., a
psychologist who corroborated his diagnoses and opined that the misconduct
that triggered his discharge was the result of PTSD. Id. The Board denied his
initial application in July 2018 and his subsequent reapplication in July
2019. Id. at *5-6.
The Board then reconsidered Machado’s discharge characterization one
more time, following a settlement approved by the District of Connecticut in
2021. Id. at *6. That settlement involved a class action brought by Army
veterans who claimed that the Board had arbitrarily denied discharge
upgrades to former servicemembers diagnosed with PTSD and PTSD-related
conditions. See Kennedy v. Whitley, 539 F. Supp. 3d 261, 263-64 (D. Conn.
2021). Specifically, the class alleged that the Board had failed to give “liberal
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consideration” to applications for discharge upgrades from servicemembers
with such conditions as required by statutory and administrative directives.
Id. at 264 (citing 10 U.S.C. § 1553; Hagel Memorandum3; Kurta
Memorandum4). The settlement agreement resolving the case required
automatic, renewed review of applications which, like Machado’s, were
previously denied despite raising issues related to PTSD, but this time with
the appropriate degree of deference. Id. at 267.
Pursuant to the Kennedy settlement, the Board notified Machado in
2021 that it would reconsider his application for a discharge upgrade. See
Machado, 2026 WL 851209, at *6. At the Board’s invitation, Machado
submitted extensive evidence to supplement his original application,
including affidavits from him and his wife describing his progress in recovery
3 Memorandum from Charles T. Hagel to Secretaries of the Military
Departments, Supplemental Guidance to Military Boards for Correction of
Military/Naval Records Considering Discharge Upgrade Requests by
Veterans Claiming Post Traumatic Stress Disorder (Sept. 3, 2014). See
Machado, 2026 WL 851209, at *2 for an explanation of the significance of this
memorandum to this case.
4 Memorandum from Anthony M. Kurta to Secretaries of the Military
Departments, Clarifying Guidance to Military Discharge Review Boards and
Boards for Correction of Military/Naval Records Considering Requests by
Veterans for Modification of their Discharge Due to Mental Health
Conditions, Sexual Assault, or Sexual Harassment (Aug. 25, 2017). See
Machado, 2026 WL 851209, at *2 for an explanation of the significance of this
memorandum to this case.
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and a letter from a social worker describing his persistent engagement with
psychotherapy. Id. He also expressly “incorporate[d] [his prior] submissions
by reference.” Id. In a mostly boilerplate decision, the Board nonetheless
ruled against Machado, relying entirely on the opinion of its medical advisor
that the “severe physical assaults that were the basis for [his] separation[]
are not part of the natural history or sequelae of PTSD, TBI or other
behavioral health conditions” and that “the available evidence did not
support a conclusion that” Machado’s conditions “outweighed the unmitigated
basis for [his] separation.” Id. The Board nowhere in its decision addressed
Dr. Dixon’s contrary opinion. See id.
Machado sued in this Court in January 2025, challenging the Board’s
decision under the Administrative Procedure Act (“APA”) and the Fifth
Amendment’s Due Process Clause. See Doc. 1 at 20-24. Adhering to this
Court’s local rules for administrative review cases, counsel for the Board
compiled and filed the applicable administrative record, Doc. 14; Doc. 18, and
the parties cross-moved for summary judgment, Doc. 17; Doc. 25. I granted
summary judgment to Machado and denied the government’s corresponding
motion. See Machado, 2026 WL 851209, at *13. In doing so, I generally
agreed with Machado’s arguments that the Board violated the APA by
entirely failing to engage with one of his principal arguments asserted in his
post-Kennedy application; that the government failed to liberally consider his
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application by entirely neglecting to address key evidence; and that it
improperly discounted other evidence due to its insufficiently charitable
approach to the behavioral effects of PTSD and TBI. See id. at *8-12. I
ultimately rejected Machado’s procedural due process claim, however,
concluding that the Board’s inadequate consideration of Machado’s
arguments nonetheless surmounted the low bar of constitutional due process.
See id. at *12.
II. ANALYSIS
The EAJA establishes an exception to the general rule in the United
States that each party must bear its own attorney’s fees. See Castañeda-
Castillo v. Holder, 723 F.3d 48, 56 (1st Cir. 2013). Under certain
circumstances, a party that prevails against the United States in a civil
action is eligible to receive a fee award for reasonable costs incurred during
the course of litigation. See 28 U.S.C. § 2412(d). One condition for a fee award
is that the position of the United States in the litigation not be substantially
justified. Id. § 2412(d)(1)(A). Here, the government argues that its position
was substantially justified such that no fees should be awarded or, in the
alternative, that any fee award should be discretionarily reduced by ten
percent given the failure of Machado’s due process claim. I address each point
in turn.
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A. Substantial Justification
Under the EAJA, “a court shall award” attorney’s fees and other costs
incurred by “a prevailing party” in “any civil action . . . 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.” Id. Courts have distilled the EAJA’s
fee award requirements into a four-part test for eligibility: (1) the claimant
must be a “prevailing party”; (2) the government’s position must not have
been “substantially justified”; (3) no “special circumstances make an award
unjust”; and (4) the fee application must be timely. See Comm’r, I.N.S. v.
Jean, 496 U.S. 154, 158 (1990). Here, the government only contests
Machado’s assertion that its position was not substantially justified.
“It is well-settled that the government bears the burden of establishing
that its position was substantially justified.” Castañeda-Castillo, 723 F.3d at
73 (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). To do so, the
government must show, by a preponderance of the evidence, that its position
“ha[d] a reasonable basis in both law and fact.” Id. While such a standard
does not require the government to show that its position was “justified to a
high degree,” the government must at least demonstrate that “a reasonable
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person could think [its position] correct.” Michel v. Mayorkas, 68 F.4th 74, 78
(1st Cir. 2023) (internal quotations omitted).
For the purposes of this inquiry, the “position of the United States”
encompasses “the position taken by the United States in the civil action,” as
well as “the action or failure to act by the agency upon which the civil action
is based.” 28 U.S.C. § 2412(d)(2)(D). The government’s position is therefore
not examined in “atomized line-items” corresponding to the various stages of
the litigation; rather, the EAJA “favors treating a case as an inclusive whole.”
Jean, 496 U.S. at 161-62. Where, as here, a prevailing party requests a fee
award for expenses incurred during civil litigation contesting agency
findings, the reviewing court will “evaluate the government's pre-litigation
and litigation positions holistically.” Michel, 68 F.4th at 79. In other words,
the government “must justify the positions it took both during the litigation
and the agency proceedings that preceded that litigation.” Castañeda-
Castillo, 723 F.3d at 73.
However reasonable its positions may have been before this Court, the
government’s claim of substantial justification is unavailing in light of the
Board’s untenable position in the underlying administrative proceedings that
gave rise to this case. As I noted in my decision on summary judgment, the
Board flatly failed to “take a fresh look at” Machado’s application for a
discharge upgrade as it promised and, more importantly, as it was required
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to do by the Kennedy settlement. See Machado, 2026 WL 851209, at *7; AR
110; 539 F. Supp. 3d at 267. In failing to review Machado’s application de
novo, the Board did not merely interpret Machado’s evidence or its
persuasiveness under the relevant standard in a reasonable-but-incorrect
manner; it largely failed to address either at all. The government must fulfill
its procedural obligations under the law at the time of its agency proceedings.
See Poole v. Rourke, 779 F. Supp. 1546, 1563-64 (E.D. Cal. 1991) (finding
that “the government’s position was not justified” where “the administrative
record does not reflect that the Air Force ever considered” evidence to which
“it was required to give serious consideration”); cf. Silva v. United States, 138
Fed. Cl. 325, 333 (2018) (concluding that the government’s position was
substantially justified where “all the actions taken by the Government prior
to litigation were taken in accordance with the regulations and policies in
effect at the time”). Thus, the Board’s failure to engage with all the evidence
presented to the extent required by Kennedy undermines the Board’s claim
that it was substantially justified in again denying Machado’s application
post-Kennedy. And because the substantial justification of the Board’s
position depends upon the reasonableness of its positions in both this
litigation and the prior agency proceedings, see Castañeda-Castillo, 723 F.3d
at 73, I find that the Board’s position was not substantially justified.
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B. Reduction of Fee Award
Notwithstanding that conclusion, I am also required to “equitably
reduce[] the overall award to reflect the plaintiff[’s] less than complete
success and the extent to which their legal work was aimed at contesting the
government’s reasonable position.” McDonald v. Sec’y of Health & Hum.
Servs., 884 F.2d 1468, 1480 (1st Cir. 1989) (emphasis in original). In deciding
whether unsuccessful claims brought by a prevailing party should entail a
correspondingly reduced fee award, courts must ascertain whether “different
claims for relief are not interconnected—that is, when the claims rest on
different facts and legal theories . . . . Attorneys’ fees normally should not be
awarded for time spent litigating (or preparing to litigate) unsuccessful,
severable claims.” Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 339
(1st Cir. 1997) (involving the fee-shifting provisions of 42 U.S.C. § 1988
rather than 28 U.S.C. § 2412(d), though the logic of interconnectedness
naturally extends to the EAJA context). If an unsuccessful claim is severable
from successful claims, the fee award can be reduced according to the court’s
“equitable judgment,” without the need for a precise determination of the
proportion of hours spent on the different claims, as such an assessment is
“necessarily somewhat arbitrary.” McDonald, 884 F.2d at 1480. Cf. García v.
State Ins. Fund Corp., 169 F.4th 13, 29 (1st Cir. 2026) (noting that, in the
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context of Title VII’s fee-shifting provision, 42 U.S.C. § 2000e-5(k), “analyzing
the degree of success obtained is not an exact science”).
Machado seeks $22,985 in attorney’s fees and costs incurred,
representing 54 hours of attorney work at $255 per hour5; 83 hours of
attorney work at $100 per hour; and a single filing fee of $405. Doc. 33 at 7.
As the government notes, while Machado attained a complete grant of his
motion for summary judgment, see Machado, 2026 WL 851209, at *13, he did
not prevail on one of his theories advanced to support that result—namely,
his procedural due process claim, see id. at *12. The due process claim is
sufficiently disconnected from the successful APA claims to warrant a
reduction in the fee award, given that the legal standards used to adjudicate
APA claims and due process claims are analytically distinct. See id. at *8-12
(explaining that APA claims necessitate a relatively detailed examination of
the weight given by agencies to various pieces of evidence, citing Poole v.
Harvey, 571 F. Supp. 2d 120, 125 (D.D.C. 2008); Mahoney v. Del Toro, 2023
5 The EAJA’s statutory cap on fee awards for attorney’s fees at $125 per hour,
see 28 U.S.C. § 2412(d)(2)(A), can be adjusted when “the court determines
that an increase in the cost of living . . . justifies a higher fee,” see id.
Machado calculates that “[m]ultiplying $125 for the March 1996 start date
[when the EAJA’s attorney’s fees limit was last amended by Congress, see
Contract With America Advancement Act of 1996, Pub. L. No. 104-121, 110
Stat. 847 (1996)] by the National Index ratio for July 2025, the mid-point of
this litigation, yields a CPI-adjusted rate of $259.35, which Plaintiffs will
round down to $255.” Doc. 33 at 6. The government does not contest the
validity of this assessment.
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WL 3587285, at *10 (D. Mass. May 22, 2023) (quoting Motor Vehicle Mfrs.
Assoc. of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52
(1983)), whereas the due process claim requires only an analysis of whether
minimally adequate notice and opportunity to be heard have been provided,
citing Bos. Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 50 (1st Cir.
2016) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976))). I thus agree
with the government that a commensurate reduction in attorney’s fees
awarded is merited to account for the time spent developing that claim. A ten
percent reduction in attorney’s fees is an appropriate estimate of that
amount.
III. CONCLUSION
Machado’s motion for fees and costs, Doc. 33, is granted in part and
denied in part. Machado is awarded $20,322 in attorney’s fees and $405 in
costs incurred.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
September 18, 2026
cc: Counsel of Record
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