Federal court ruling excerpts support record corrections
Final court ruling excerpts support that our Service-members challenging the AVIP were the "prevailing party" because the government’s position was not “substantially justified.”
"The EAJA provides that a prevailing party in a non-tort suit against the United States is entitled to fees and expenses unless the government’s position was “substantially justified.” ...
Given the unreasonableness of the agencies’ initial position before the lawsuit, and their sharp changes in December 2003 – issuing a final order after 18 years that contradicted the proposed order – the Court concludes that the government was not substantially justified in this case...
The Court concludes that plaintiffs are entitled to fees and costs for litigating this action, including on appeal, because plaintiffs are the prevailing party and the government’s position was not substantially justified."
Outcome: Attorneys in this case were reimbursed approximately $230,000. The court would not have ordered the government to pay, and the government would not have paid, were it not for the fact they broke the law. The government lost because the anthrax vaccine was not properly licensed by the FDA, and therefore the mandatory AVIP was illegal pre-2006.
Later tangential military judicial proceedings quibbled about the outcome, opining that commanders deserved an "inference" of legality since they believed the program was legal, but none of these rulings fairly addressed whether or not a lack of culpability by commanders justified not correcting troop's records.