Full opinion text
MEMORANDUM OF DECISION AND ORDER MILTON L. SCHWARTZ, District Judge. This matter is before the court on (1) defendants’ motion to transfer the case to the United States Claims Court because of this court’s alleged lack of jurisdiction; (2) defendants’ motion to amend the judgment filed February 21, 1991, to comply with alleged limits on this court’s jurisdiction; and (3) plaintiff’s motion for attorney fees. Both of defendants’ motions relate to the court’s subject matter jurisdiction under the Little Tucker Act, which places a $10,-000 cap on the jurisdiction of district courts in non-tort cases against the United States. 28 U.S.C. § 1346(a)(2) (1988). Defendants contend that because the award sought in this case exceeds $10,000, the action should be transferred to Claims Court. Likewise, they argue that the February 21, 1991 judgment should be amended to avoid exceeding the $10,000 jurisdictional cap. Plaintiff moves for attorney fees under the Equal Access to Justice Act (“EAJA”), codified at 28 U.S.C. § 2412, based on his success in obtaining summary judgment: (1) setting aside his honorable discharge; (2) ordering defendants to constructively reinstate him from the time he was improperly discharged through the date on which his term of service would have expired and to correct his military record to reflect the constructive reinstatement; (3) awarding him back pay and benefits to which he would have been entitled had he not been improperly discharged; (4) ordering defendants to grant plaintiff appropriate retirement benefits; and (5) awarding plaintiff his costs of suit. Under EAJA, a successful party in a suit against the United States is entitled to attorney fees and costs if the government’s position is not substantially justified. 28 U.S.C. § 2412(d)(1)(A) (1988). I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, Bobby W. Poole, enlisted in the Air Force on October 13,1972, after having served in the Army for three years. In a random urinalysis administered on March 20, 1986, plaintiff tested positive for a metabolite of THC, the psychoactive ingredient in marijuana. At that time, plaintiff had been enlisted in military service for approximately seventeen years and was a material facility supervisor who held the rank of technical sergeant at McClellan Air Force Base. Throughout his Air Force enlistment, plaintiff routinely received very strong airman performance reviews. Plaintiff initially denied having used marijuana, but nonetheless accepted nonjudicial (Article 15) punishment for that offense. His punishment entailed a reduction in rank from technical sergeant to staff sergeant and a forfeiture of $700 in salary over a two-month period. Plaintiff appealed the punishment, but a superior commander denied the appeal on June 27, 1986. Subsequently, plaintiff admitted having used marijuana the night before the urinalysis was administered. On July 18, 1986, the newly installed commander of plaintiffs squadron, Lt. Col. Jerry Price, notified plaintiff that he intended to recommend plaintiff’s discharge from the Air Force pursuant to Air Force Regulation (“AFR”) 39-10, para. 5-49(c). A three-person discharge board (“Board”) convened on October 22, 1986, to consider plaintiff’s case. The Board received various types of documentary evidence and heard oral testimony. Although acknowledging that, as far as he knew, plaintiff had “done an excellent job at whatever he’s been given,” Lt. Col. Price recommended plaintiff’s discharge “because of his position as an NCO and the fact that he did use illegal drugs and the Air Force policy and position is normally NCO’s will not be retained if they use drugs.... Whether he can be rehabilitated is not an issue.” Lt. Col. Price indicated that his was a special duty unit with standards higher than those of a normal Air Force unit, that the unit was often stationed in areas where drugs were plentiful, and that plaintiff’s duties involved handling potentially dangerous mechanized equipment. Lt. Col. Price concluded that “[plaintiff] does not deserve to be in the Air Force.” Plaintiff did not testify on his own behalf. However, he submitted an unsworn written statement for the Board’s review in which he described the marijuana incident. Plaintiff introduced some testimony, although most of the evidence on his behalf was found in the numerous affidavits he submitted. These affidavits, which comprise more than twenty-five in number, were written by plaintiffs supervisors and colleagues over the years. They portray a dedicated, motivated professional who got along well with people and had the ability to inspire his subordinates. Of those affi-ants who addressed the subject, all strongly recommended that the Air Force offer plaintiff probation and rehabilitation. None of the instructions to the Board are in the record. Perhaps most significant, it cannot be determined whether the Board received any instructions regarding probation and rehabilitation. At the conclusion of the hearing, the Board met in closed session and, by majority vote, found that plaintiff had used marijuana on or about March 20, 1986. It then recommended that he be honorably discharged without probation or rehabilitation. The Board gave no reasons for the recommendation to refuse plaintiff probation and rehabilitation. On April 17, 1987, the discharge authority (the base commander) reviewed and approved the recommendations to discharge plaintiff and not to offer him probation and rehabilitation. On June 3, 1987, the Major Air Command Acting Director of General Law reviewed and approved the recommendations. On June 5, 1987, the Major Air Command Deputy Chief of Staff for Personnel reviewed and approved the recommendations. The Secretary of the Air Force subsequently reviewed and approved the recommendations and on June 29, 1987, directed the administrative discharge to be executed. On July 10, 1987, plaintiff applied to the Air Force Board for Correction of Military Records (“AFBCMR”) for review of his pending discharge. On July 16, 1987, plaintiff brought the present action against the Secretary of the Air Force, et al., seeking, inter alia, a temporary restraining order and preliminary and permanent injunctive relief prohibiting the Air Force from discharging him pending resolution of his administrative appeal and federal court review. On July 21, 1987, this court granted plaintiff a temporary restraining order which was subsequently extended until August 10, 1987, directing the Air Force to refrain from discharging plaintiff until after the court could hear arguments on his motion for preliminary injunction. On August 7, 1987, the court denied plaintiff’s motion for preliminary injunction. Relying upon Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985), the court held that where a party seeks to enjoin implementation of a military personnel decision, that party must make a much stronger showing of irreparable injury than in the usual case seeking injunctive relief. Thus, the normal incidents and harms associated with discharge would not be sufficient injury under Hartikka to enjoin a military discharge. Some extraordinary injury must be demonstrated. Extraordinary injury had not been demonstrated in plaintiffs case because any stigma plaintiff might experience followed from his admitted, proscribed conduct and not from the discharge itself. The court held that plaintiff would suffer only the normal incidents of discharge, however severely they may affect him. On August 11, 1987, plaintiff was discharged from the Air Force. Pending review by the AFBCMR, further proceedings in this court were stayed. On September 12, 1989, the AFBCMR denied plaintiffs application for correction of his military record. It found plaintiff’s discharge proper because there was no indication that his urine sample was improperly processed or that the positive result was erroneous — indeed, plaintiff later admitted that he had used marijuana prior to the urinalysis. The AFBCMR also found that proper procedures were used to discharge plaintiff and to review that discharge in accordance with AFR 39-10, para. 5-49(c). The AFBCMR stated that “[w]e have seen no evidence which would cause us to conclude that reviewing authorities considered erroneous information or that the applicant’s substantive rights were violated.” Further, the AFBCMR was “unpersuaded” that the applicant was improperly denied probation and rehabilitation. After receiving the AFBCMR’s decision, this court filed its Memorandum and Order on February 5, 1991, concluding that: [Defendants’ decision to discharge plaintiff for misconduct based on drug abuse, pursuant to AFR 39-10, para. 5-49(c), was arbitrary and capricious, and an abuse of discretion, for the following separate and independent reasons: (1) Paragraph 5-49(c) contains no controlling standards for determining the circumstances and factors to be weighed in ascertaining when an NCO should be offered probation and rehabilitation in lieu of discharge. Without such standards defendants’ conduct was necessarily arbitrary. (2) There is nothing in the administrative record that could possibly support an inference that defendants weighed and considered any evidence whatever, in arriving at their decision to discharge plaintiff rather than offer him probation and rehabilitation, other than the evidence as to whether he ingested marijuana on March 20, 1986. (3) There is nothing in the administrative record that could possibly support an inference that defendants followed the law specified by the Department of Defense that “the potential for rehabilitation and further useful military service shall be considered by the Separation Authority_ If separation is warranted despite the potential for rehabilitation, consideration should be given to suspension of the separation, if authorized.” 32 C.F.R. Part 41, App. A, Part 2, § A(2)(b). See also factors suggested in Section A of Part 2 that may be considered on the issue of retention or separation. (4) The administrative record before the court offers no rationale whatsoever for the actions taken by defendants. The court further concludes that remand to the administrative agency with directions to reinstate plaintiff and commence the administrative discharge proceedings over again is not a practical remedy nor does it seem likely to protect plaintiff from the substantial danger of further injustice. Accordingly, as indicated above, it has determined that plaintiffs motion for summary judgment should be granted. This court rendered judgment on February 21, 1991: (1) denying defendants’ and granting plaintiff’s motion for summary judgment; (2) setting aside plaintiff’s honorable discharge and ordering defendants to correct plaintiff’s records to indicate that plaintiff constructively served on active duty from the date of his improper discharge (August 11, 1987) through the expiration date of his then current enlistment (November 7, 1989); (3) ordering defendants to pay plaintiff back pay for this period of constructive active duty and to reimburse him for expenses incurred because of the improper discharge; (4) ordering defendants to retire plaintiff with full pay and benefits commensurate with his years of service, not to be reduced in any way for the misconduct based on drug use that was the subject of this action; (5) ordering defendants to pay plaintiff retroactive retirement pay; (6) ordering defendants to pay plaintiff’s costs of suit; (7) offering plaintiff the opportunity to apply to the court for an award of attorney fees for the prosecution of this case; and (8) retaining jurisdiction over the case to take any necessary action to implement this suit. Defendants subsequently filed the present motion to amend judgment, on March 7, 1991. On August 5, 1991, they filed the other present motion to transfer plaintiff’s case to the United States Claims Court pursuant to 28 U.S.C. § 1631 (1988). Plaintiff applied for attorney fees and expenses on March 12, 1991. As indicated in the opening paragraph above, these three motions are the subject of this decision. II. JURISDICTION A. Subject Matter Jurisdiction and the Tucker Acts Both plaintiff and defendants concede that the amount of the award in this case will greatly exceed the $10,000 threshold of the Little Tucker Act. Accordingly, defendants contest the court’s subject matter jurisdiction and move to transfer the case to the Claims Court pursuant to 28 U.S.C. § 1631. “It is a fundamental principle that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978); see also General Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1449, 71 L.Ed.2d 662 (1982). A federal court is presumed to lack jurisdiction “unless the contrary affirmatively appears.” California ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir.1979). In light of these limits, the first question the court must address in all litigation is whether subject matter jurisdiction exists. The burden of proving federal district court jurisdiction is upon the party asserting jurisdiction, which typically, and in this action, is plaintiff. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936). If jurisdiction is lacking, the case may be transferred to another court to cure the want of jurisdiction: Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. § 1631 (1988). Where the defendant is the United States, the existence of jurisdiction depends upon its waiver, if any, of sovereign immunity: “It long has been established that the United States, as sovereign, ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain that suit.’ ” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). A congressional waiver of sovereign immunity “cannot be implied, but must be unequivocally expressed” in statute. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980), aff'd, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969)). The two primary waivers of federal sovereign immunity are the Tucker Act, which governs non-tort monetary claims, and the Administrative Procedure Act (“APA”), which governs non-monetary relief. See Bedoni v. Navaho-Hopi Indian Relocation Comm’n, 854 F.2d 321, 325 (9th Cir.1988), superseded on other grounds, 878 F.2d 1119 (9th Cir.1989). The Tucker Act vests jurisdiction over non-tort claims in the United States Claims Court. It provides: The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, of any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliq-uidated damages in cases not sounding in tort. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service ... shall be considered an express or implied contract with the United States. 28 U.S.C. § 1491(a)(1) (1988). The Little Tucker Act gives concurrent jurisdiction over Tucker Act claims to federal district courts, provided that the claim does not exceed $10,000. It provides: The district courts shall have original jurisdiction, concurrent with the [Claims Court], of: ... Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.... For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service ... shall be considered an express or implied contract with the United States. 28 U.S.C. § 1346(a)(2) (1988) (emphasis added). Thus, where monetary relief of $10,-000 or less is sought from the government, federal district courts and the Claims Court have concurrent jurisdiction. 28 U.S.C. §§ 1346(a)(2) and 1491 (1988). Where monetary relief will exceed $10,000, however, jurisdiction lies exclusively in the Claims Court under 28 U.S.C. § 1491. Of course, a plaintiff may waive recovery in excess of $10,000 and thereby assure jurisdiction in the district court. See Levy v. Urbach, 651 F.2d 1278, 1280 (9th Cir.1981); United States v. Johnson, 153 F.2d 846, 848 (9th Cir.1946); Campbell v. United States Air Force, 755 F.Supp. 893, 899 (E.D.Cal.1990). It is important to note that “[i]t is not the nature of the cause of action which determines whether jurisdiction is vested in the district court or the Claims Court but rather the nature of the relief requested.” Matthews v. United States, 810 F.2d 109, 111 (6th Cir.1987). B. Monetary Relief Under the Tucker Act Although the language in the Little Tucker Act may appear to forbid district courts from awarding $10,000 or more in any non-tort case against the United States, subsequent cases have interpreted the language as not applying to all monetary claims. These cases turn on the question of whether the remedy sought is properly classified as money damages or instead as equitable monetary relief. This question is important because the Little Tucker Act has been construed to limit district court jurisdiction only where more than $10,000 in money damages is at issue; the Act does not even apply to a claim that seeks monetary relief of a purely equitable nature. Rowe v. United States, 633 F.2d 799, 802 (9th Cir.1980) (“The Tucker Act, by its terms, applies only to claims for money damages. Therefore, it does not preclude review of agency action when the relief sought is other than money damages.”), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981); Vietnam Veterans v. Secretary of the Navy, 843 F.2d 528, 534 (D.C.Cir.1988) (“[T]o be based on the Little Tucker Act a claim must be, at least in some sense, for money. It is equally clear that a claim is not for money merely because its success may lead to pecuniary costs for the government or benefits for the plaintiff.”). In Bowen v. Massachusetts, the Supreme Court acknowledged the distinction between the two forms of relief: Our cases have long recognized the distinction between an action at law for damages — which are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation — and an equitable action for specific relief — which may include an order providing for the reinstatement of an employee with back pay, or for “the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer’s actions.” 487 U.S. 879, 893, 108 S.Ct. 2722, 2732, 101 L.Ed.2d 749 (1988) (emphasis in original) (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949)). The Court in Bowen stated that “[t]he fact that a judicial remedy may require one party to pay money to another is not a sufficient reason to characterize the relief as ‘money damages.’ ” Id. In School Comm. v. Department of Educ., the Supreme Court recognized that relief ordering reimbursement of educational costs is not “damages,” even though money changes hands. 471 U.S. 359, 371-72, 105 S.Ct. 1996, 2003, 85 L.Ed.2d 385 (1985). The Court concluded that the order for reimbursement merely required the appellant to “belatedly pay expenses that it should have paid all along and would have borne in the first instance.” Id.; 105 S.Ct. at 2003. The Bowen Court quoted extensively from Judge Bork’s opinion in Maryland Dep’t of Human Resources v. Department of Health & Human Servs., wherein Maryland asked the district court for declaratory and injunctive relief against reducing funds otherwise due. 763 F.2d 1441, 1446 (D.C.Cir.1985). The court held that the relief sought was not money damages, even though the claim would require the federal government to pay money: Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies “are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled.” Thus, while in many instances an award of money is an award of damages, “[o]ccasionally a money award is also a specie remedy.” Maryland Dep’t of Human Resources, supra, 763 F.2d at 1446 (emphasis in original) (citations omitted) (quoted in Bowen, supra, 108 S.Ct. at 2732). Likewise, several Claims Court decisions have agreed that district courts have jurisdiction to provide equitable relief that does not constitute an award of damages even though it is monetary in nature. See, e.g., Froudi v. United States, 22 Cl.Ct. 290, 296-96 (1991) (mere fact that claim is valued at $40,000 does not change nature of the relief sought from equitable to a money judgment); Commonwealth of Kentucky ex rel. Cabinet for Human Resources v. United States, 16 Cl.Ct. 755, 760 (1989) (explicitly adopting language of Bowen). Applying the analyses of the above authorities to this case, the court concludes that plaintiff’s claims are not for money damages. In his original complaint, plaintiff sought only mandamus, prohibition and a preliminary and permanent injunction, together with “such other relief as the court deems just and proper,” in order to effect rescission of the order discharging him from service and to permit him to complete his current enlistment. Plaintiff has never requested money; he merely wanted his job back. His assertion that “the injunc-tive and declaratory relief sought by and awarded to the plaintiff have value far above and beyond the derivative pecuniary award entailed therefrom” is compelling. As other courts have noted: It would be demeaning to justice and to respect for the non-monetary concerns of former officers, for this court to hold that plaintiff’s claims for invalidity of his conviction and discharge are necessarily masks for a subsequent claim of monetary relief. At least as important as back pay are a man’s career, his livelihood, his rights as a veteran, his status as a convicted criminal, and his reputation. See, e.g., Melvin v. Laird, 365 F.Supp. 511, 520 (E.D.N.Y.1973). It is important to note also that the Claims Court has power to award only money damages, and not equitable relief such as injunctions, declaratory judgments, or specific performance. Bowen, supra, 108 S.Ct. at 2737-38. Although the Claims Court may “employ equitable doctrines,” it may not hear a claim that requests only equitable relief. Rowe, supra, 633 F.2d at 802. Thus, plaintiff’s case could not have originally been brought in Claims Court because plaintiff sought only equitable relief. As the Supreme Court has acknowledged, a suit for reinstatement with back pay is an equitable action for specific relief and not an action at law for damages. See Bowen, supra, 487 U.S. at 893, 108 S.Ct. at 2732. Back wages and retirement pay resulting from constructive reinstatement constitute a form of reimbursement because they require defendants to “belatedly pay expenses that it should have paid all along and would have borne in the first instance” had plaintiff not been improperly discharged. School Comm., supra, 471 U.S. at 371-72, 105 S.Ct. at 2003. Though an award of money per se, back pay does not substitute for plaintiff’s losses in any way; rather, it is “the very thing to which he was entitled.” Maryland Dep’t of Human Resources, supra, 763 F.2d at 1446. It is nonetheless true that the jurisdiction of the Claims Court may not be evaded by a complaint that appears to seek only equitable relief “where the real effort of the complaining party is to obtain money from the federal government.” Bakersfield City Sch. Dist. v. Boyer, 610 F.2d 621, 628 (9th Cir.1979). However, it is no less true that where plaintiff genuinely seeks equitable relief, even where the equitable relief may lead to an award of money, jurisdiction exists in federal district court. See Beller v. Middendorf 632 F.2d 788, 799 (9th Cir.1980) (“[A] district court does not lose jurisdiction over a claim for non-monetary relief simply because it may later be the basis for a money judgment.”), cert. denied, 454 U.S. 855, 102 S.Ct. 304, 70 L.Ed.2d 150 (1981); Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1379 (9th Cir.1979) (same); Vietnam Veterans v. Secretary of the Navy, 843 F.2d 528, 534 (D.C.Cir.1988) (“a claim is not for money merely because its success may lead to pecuniary costs for the government or benefits for the plaintiff”). In determining plaintiffs true goals, courts may not blindly accept the parties’ categorization of the relief but must look to the essence of the suit. Beller, supra, 632 F.2d at 799 (recognizing possibility that district court could have jurisdiction over back pay claim in excess of $10,000 where relief sought is “essentially” or “primarily” non-monetary); Denton v. Schlesinger, 605 F.2d 484, 486 (9th Cir.1979) (“Looking behind labels and generalizations of their complaint,” plaintiffs “essentially” requested money damages and thus the Claims Court has exclusive jurisdiction); Mathis v. Laird, 483 F.2d 943, 943-44 (9th Cir.1973) (where “case is essentially one for a money judgment,” Claims Court has exclusive jurisdiction); Giordano v. Roudebush, 617 F.2d 511, 515 (8th Cir.1980) (where back pay claim worth only $6,000 when filed and “monetary relief was clearly not his principal motive,” district court had jurisdiction over equitable claims and plaintiff not required to waive all damages over $10,000). In this case, it is clear that plaintiff genuinely and essentially has prayed for purely equitable relief from the very beginning. It is solely and directly the result of defendants’ improper refusal to timely give him that relief that the nature of the equitable relief has changed from non-monetary in-junctive relief to constructive reinstatement with back pay. But because the nature of plaintiff's suit has not changed from one for equitable relief to one for money damages, the Little Tucker Act does not preclude this court’s jurisdiction to award plaintiff the relief to which he is entitled. III. DEFENDANTS’ MOTION TO AMEND JUDGMENT Defendants also move the court pursuant to Fed.R.Civ.P. 59(e) to amend the judgment entered February 21, 1991, to conform to the Tucker Act limit on the amount of money damages this court may award. In light of the court's decision that the monetary award is not one for money damages, notwithstanding that it exceeds $10,-000, no amendment is required and the motion must therefore be denied. IV. PLAINTIFF’S MOTION FOR ATTORNEY FEES A. Attorney Fees Under the Tucker Act The Little Tucker Act does not specify whether the $10,000 cap on federal district court jurisdiction includes amounts sought as attorney fees and costs, nor has the Supreme Court or the Ninth Circuit ruled on the question. A number of other courts have held that attorney fees, when provided for by statute, must be included in calculating the amount of a claim for purposes of determining a district court’s jurisdiction. Oliveira v. United States, 827 F.2d 735, 741-42 (Fed.Cir.1987) (Claims Court did not err in holding plaintiff not entitled to recover fees incurred either in district court or in Eleventh Circuit: such award would be unreasonable in view of lack of jurisdiction in these forums and in view of EAJA’s specific requirement, as basis for award of fees, that action be brought before “court having jurisdiction”); Graham v. Henegar, 640 F.2d 732, 735-36 (5th Cir.1981) (“attorney fees, when provided for by statute, must be included in determining the amount of a Tucker Act claim”); Polos v. United States, 556 F.2d 903, 906 (8th Cir.1977) (plaintiff not entitled to fees in district court where Claims Court had exclusive jurisdiction over suit); Zumerling v. Marsh, 591 F.Supp. 537, 543 (W.D.Pa.1984) (statutory attorney fees included in determining whether amount claimed exceeds $10,000 under Tucker Act), aff’d, 769 F.2d 745 (Fed.Cir.1985); Lichtenfels v. Orr, 604 F.Supp. 271, 273-74 (S.D.Ohio 1984) (plaintiff waived attorney fees so that $10,000 would not be exceeded), aff’d, 878 F.2d 1444 (Fed.Cir.1989); June v. Secretary of the Navy, 557 F.Supp. 144, 147 (M.D.Pa.1982) (plaintiff waived attorney fees in order to avoid exclusive jurisdiction of Claims Court). Each of the above cases is distinguishable from the case at bar. Oliveira arose under the Federal Court Improvement Act of 1982 and not under the Tucker Act. Thus, it does not address the issue before this court, namely, the relationship between EAJA attorney fees and the $10,000 jurisdictional cap of the Little Tucker Act. Second, Graham and Zumerling both address the jurisdiction question in the particular context of a statutory provision that gives rise both to a substantive right and to an award of attorney fees. The Tucker Act “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.... Rather, the Tucker Act ‘merely confers jurisdiction ... whenever the substantive right exists.’ ” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Graham itself notes that the scope of a Tucker Act claim must be determined by looking to the source of the substantive right upon which the claim is based. Only when the source of the substantive right for which the Tucker Act supplies jurisdiction provides for attorney’s fees over and above the amount of damages should attorney’s fees be added to the amount of damages claimed in calculating the amount in controversy. In this case, the source of the firefighters’ cause of action, 28 U.S.C. § 216(b), specifically provides for an award of attorney’s fees to a prevailing plaintiff in addition to recovery of unpaid overtime compensation and liquidated damages. Graham, supra, 640 F.2d at 735-36 (emphasis added); see also Castillo v. United States, 707 F.2d 422, 424 (9th Cir.1983) (“The Tucker Act does not create a substantive right enforceable against the United States for money damages; it merely confers jurisdiction whenever the substantive right exists. The Tucker Act must be strictly construed in light of its function in giving the consent of the government to be sued.”) (citations omitted). In the instant case, the statute that supplies the substantive right is separate from the statute that authorizes the award of attorney fees. Plaintiff claims attorney fees under EAJA, 28 U.S.C. § 2412(d)(1)(A). EAJA provides for an award of attorney fees to a prevailing plaintiff or defendant in a suit in which the United States is the adverse party and where the United States cannot show that its position is “substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (1988). EAJA does not, however, provide a substantive right upon which a claim against the United States may be based. The substantive right sued upon in this case is an alleged violation of Department of Defense directives and Air Force Regulations, and also the Fifth Amendment to the United States Constitution (procedural due process). The other cases mentioned above are also distinguishable from this case. In Polos, the court did not explicitly hold that attorney fees should be included in calculating the jurisdictional amount. Rather, it decided that plaintiffs claim for back pay in excess of $10,000 was essentially a suit for damages and therefore transferred it to the Claims Court. Polos then denied attorney fees in a footnote: “In light of our disposition of the principal appeal, we conclude that the District Court did not err in denying the request for attorneys fees.” Polos, supra, 556 F.2d at 906 n. 7. Polos thus does not provide solid support for a holding that attorney fees should be included in calculating the jurisdictional amount. The only other reported cases relating attorney fees to the jurisdictional amount of the Little Tucker Act are June and Lichtenfels. Neither case explicitly holds that fees should be included in the calculation. Plaintiffs in both cases waived claims in excess of $10,000, including amounts claimed as attorney fees. Had plaintiffs not done so, the June and Lichtenfels courts would have had to decide whether to include the fees in the jurisdictional calculation. Because of the waivers, neither court reached the question. Not only have other courts failed to hold that attorney fees should be included in calculating the jurisdictional amount of the Little Tucker Act, but also the language in several Supreme Court cases discussed, supra, suggests just the opposite result: that attorney fees should not be included in the Tucker Act calculation. Those cases turned on the question of whether the remedy sought was properly classified as money damages — and thus subject to the Little Tucker Act jurisdictional cap — or instead as equitable monetary relief — which is not subject to the $10,000 limit. See discussion, supra. Indeed, one court, guided by the Bowen Court’s analysis, explicitly held that awards of attorney fees and costs are not damages awards: Unlike a damage award, an award of costs and fees in no way rectifies the grievance initially giving rise to a case; it does not, in Judge Bork’s words, “substitute for a suffered loss.” Rather than being compensation, costs and fees arise solely as incidents of the effort to achieve compensation. The underlying idea is to regain specific monies expended rather than to find a surrogate for what has unfortunately been denied. In that sense, an award of costs and fees, though monetary, and though utilizing the same currency as a damage award, is more akin to specific relief than to damages traditionally understood. Bruch v. United States Coast Guard, 749 F.Supp. 688, 692 (E.D.Pa.1990). Having found that attorney fees are not money damages, Bruch then concluded that the monetary cap of the Little Tucker Act did not apply. Applying the analyses of Bruch and the cases discussed supra, plaintiffs claim for attorney fees is not one for money damages. An award of costs and fees under EAJA does not substitute for a suffered loss. Although the award involves money, it is more akin to specific relief than to money damages. EAJA fees and costs are not compensatory, but arise “solely as incidents of the effort to achieve compensation.” Bruch, 749 F.Supp. at 692. The fees are not a substitute remedy for what has been denied but rather are a refund of what was expended. Because no money damages are involved, there is therefore no $10,000 limit on plaintiffs attorney fees award. B. Requirements for an Award of Attorney Fees Under the Equal Access to Justice Act The Equal Access to Justice Act (“EAJA”) provides, in relevant part: [A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A) (1988). The congressional purpose in enacting EAJA was to eliminate the average person’s financial disincentive to seek review of or defend against unreasonable governmental actions. The Senate stated: For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process.... When the cost of contesting a Government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it. S.Rep. No. 253, 96th Cong., 1st Sess. 5 (1979). Congress intended EAJA to rectify this situation by providing for an award of reasonable attorney fees to a prevailing party in an action against the United States, unless the government’s position was substantially justified or special circumstances would make such an award unjust. See id. In order to justify an award of fees under EAJA, several requirements must be satisfied. First, the fee application must be filed within thirty days of final judgment in the action and must be supported by an itemized statement. 28 U.S.C. § 2412(d)(1)(B) (1988). Second, the claimant must satisfy a net worth requirement. 28 U.S.C. § 2412(d)(2)(B) (1988). Third, the claimant must be a “prevailing party.” 28 U.S.C. § 2412(d)(1)(A) (1988). If these three requirements are met, plaintiff is entitled to an award of attorney fees unless the government has raised the “substantial justification” or “special circumstances” exceptions. If defendant raises either exception, the court must engage in a second level of inquiry to determine whether an EAJA award is appropriate. In the present case, the government has raised the substantial justification exception. Because defendants do not dispute that plaintiff satisfies the net worth requirement and do not assert the special circumstances exception, the court will not discuss these requirements. 1. Final Judgment Defendants dispute that final judgment was rendered and that plaintiff’s application for fees was made during the thirty-day period. Under EAJA a party seeking attorney fees must submit an application to the court “within thirty days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B) (1988). In 1985 Congress added a provision defining a “final judgment” as one “that is final and not appeal-able.” See 28 U.S.C. § 2412(d)(2)(G) (1988). Applications for fees under EAJA can thus be “filed and considered any time after final judgment is entered by the district court, but no later than 30 days following the entry of a final, non-appealable judgment from the appellate court.” Cervantez v. Sullivan, 739 F.Supp. 517, 521 (E.D.Cal.1990). Despite the use of the “final judgment” language, the Ninth Circuit has held that interim fees are available under EAJA where a party has prevailed on some substantial part of its claim, notwithstanding the need for further proceedings. See, e.g., Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1225 (9th Cir.1989) (fact that dispute between parties may continue does not preclude fee award); National Wildlife Fed’n v. F.E.R.C., 870 F.2d 542, 545-46 (9th Cir.1989) (where organization prevailed on one of five claims and where court’s decision on that claim provided substantive and not procedural relief, case had proceeded to final judgment). The thirty-day period is “intended to operate as a statute of limitations rather than as a jurisdictional bar to consideration of EAJA fee applications.” Cervantez, supra, 739 F.Supp. at 521. In the instant case, the court entered judgment on February 21, 1991. In that judgment, discussed supra, the court, inter alia: (1) awarded plaintiff summary judgment; (2) set aside plaintiffs honorable discharge and ordered defendants to correct plaintiffs records to show constructive reinstatement; (3) ordered defendants to award plaintiff back pay and reimburse his expenses resulting from the improper discharge; (4) ordered defendants to retire plaintiff with back pay and benefits; (5) ordered defendants to pay plaintiff retroactive retirement pay; and (6) ordered defendants to pay plaintiffs costs of suit. Thus, plaintiff has clearly prevailed on a substantial part of his claim. Defendants’ contentions that no final judgment for EAJA purposes exists because of the pending motions to transfer the case and to amend the judgment are unpersuasive. A final judgment has been entered, and the plaintiff is not required to wait until all post judgment appeals have been exhausted to collect his fee. As the court in Carlucci held, the government was mistaken in its belief that fees may not be awarded until “the appellants win a judgment which ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Carlucci, supra, 867 F.2d at 1225. Otherwise, the government could delay an award of fees for so long as to erect a financial barrier for some parties to sustain the litigation— thus, thwarting one of the major purposes behind EAJA’s enactment. Therefore, despite the pending motions to transfer the case and to amend the judgment, this case has clearly proceeded to final judgment, and an award of interim EAJA fees is appropriate. Plaintiff originally applied by mail for attorney fees under EAJA on March 13, 1991 — fourteen court days after the court’s entry of judgment. He re-applied on March 18, 1991, by submitting a notice of motion for attorney fees. In the motion now before the court, plaintiff seeks to renew his application. Plaintiff’s application for fees is therefore ripe and timely. 2. Prevailing Party Once the court finds that the final judgment and net worth requirements are met, it must determine whether the fee applicant is a “prevailing party.” To do so, the court must evaluate the degree of success obtained. I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990). Although EAJA does not define the term “prevailing party,” substantial case law addresses the definition: “A typical formulation is that plaintiffs may be considered ‘prevailing parties’ for attorney fee purposes if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); see also Lear Siegler, Inc. v. Lehman, 893 F.2d 205, 208 (9th Cir.1989) (plaintiff not prevailing party where it did not demonstrate it received relief in its underlying claim); Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984) (it is “clear that a party need not have litigated to final judgment and have been awarded the ultimate relief requested in order to be entitled to an award of fees under EAJA”). Recently, the Supreme Court reaffirmed the Hensley standard in Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). In the instant case, defendants claim that plaintiff is not a prevailing party because there was no final judgment rendered in this case upon which plaintiff could prevail. The court holds to the contrary; final ap-pealable judgment has been rendered. See discussion, supra. Based on the order granting summary judgment, plaintiff has clearly prevailed on all “significant issue[s]” in the litigation and is a “prevailing party” for EAJA purposes. 3. Substantial Justification Where a court determines that the above requirements have been met, a second level of inquiry may be necessary if the government has asserted an exception for substantial justification or for special circumstances that render an award unjust. In this case, the government has asserted that its position was substantially justified. Under EAJA there is a rebuttable presumption that a prevailing party in litigation against the government is entitled to fees. The government can rebut the presumption by demonstrating that its position was substantially justified. United States v. 313.34 Acres of Land, 897 F.2d 1473, 1477 (9th Cir.1989); Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir.1988). The government bears the burden of proving substantial justification. Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir.1987); Petition of Hill, 775 F.2d 1037, 1042 (9th Cir.1985). The court shall determine the issue based upon “the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B) (1988). The Supreme Court has construed “substantially justified” to mean: “[Jjustified in substance or in the main”—that is, justified to a degree that could satisfy a reasonable person. That is no different from the “reasonable basis both in law and fact” formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue. See National Wildlife, supra, 870 F.2d at 546 (quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988)). Thus, the standard for “substantial justification” announced in Pierce asks whether there was a reasonable justification in fact and law for the government’s position. See Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir.1988) (agency’s underlying conduct was unreasonable where it utilized an unpublished policy to effectively deny SSI benefits to persons holding commercial fishing licenses valued over $6000); National Wildlife, supra, 870 F.2d at 546 (F.E.R.C.’s position was not substantially justified because its failure to consider the Fish and Wildlife Program in issuing permits, as required by the Northwest Act, was unreasonable). In determining whether the government’s position was substantially justified, the court must examine the underlying governmental action and the position taken by the government in the litigation. See Kali v. Bowen, 854 F.2d 329, 332 (9th Cir.1988) (in determining existence of substantial justification, court must ask: (1) whether government was substantially justified in original action and (2) whether government was substantially justified in defending validity of that action in court); League of Women Voters v. F.C.C., 798 F.2d 1255, 1258 (9th Cir.1986) (in analyzing reasonableness of government’s position under “totality of the circumstances” test, court must look both to position asserted by government in trial court as well as nature of underlying government action at issue); Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984) (substantial justification determination evaluated under the totality of the circumstances, prelitigation and during trial). Mere failure of the government to prevail in the suit does not raise a presumption that its position was not substantially justified. Hill, supra, 775 F.2d at 1042; see also Kali, supra, 854 F.2d at 332 (lack of substantial justification not established by fact that another court had already entered decision adverse to government’s position on issue in question). Kali rejected the argument that because of the deference typically given to an agency’s interpretation of its statutes or regulations, a court’s finding that the agency has acted contrary to law implicitly indicates that the agency’s action was unreasonable. 854 F.2d at 333. “[T]his circuit has recognized that ‘arbitrary and capricious conduct is not per se unreasonable.’ ” Id. (quoting Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir.1988)). However, “attorney fees may ... be awarded when the agency reasonably believed that its action [was] not arbitrary and capricious.” Andrew, supra, 837 F.2d at 878. Courts have varied widely in determining what constitutes substantial justification in individual lawsuits. Some generalizations can be made based on the varying factual situations of these cases. Whether alone or in combination, certain factors have led to findings that the government’s position was not substantially justified. These factors are: (1) clarity of the law at issue or the legislative intent; (2) lack of any evidence to support the federal position; (3) failure of the government’s own regulations or prior practices to support its position; (4) prior rejection of the government’s position by other courts in similar cases; (5) length or extent of proceedings; (6) complete ignorance of uncontradicted evidence or opinions of the government’s own experts; and (7) rejection of decisions of administrative law judges by the government. 1 Derfner & Wolf, Court Awarded Attorney Fees § 10.03 (1991). On the other hand, absence of these factors or presence of others has tended to support findings that the government’s position was substantially justified. Id. Factors that have supported a substantial justification finding are: (1) ability of the United States to make out a prima facie case; (2) lack of clarity in the substantive law; (3) interpretation by the government of a law or regulation that is reasonable, albeit ultimately determined to be incorrect; (4) complexity of the law or issues involved; (5) closeness of factual or legal questions; (6) existence of arguably supportive precedent; (7) absence of precedent in support of fee petitioner’s position; and (8) speed with which the government acts in complying with valid demands. Id. In the instant case, defendants contend that they were substantially justified both in their original decision to discharge plaintiff and in their subsequent decision to defend the discharge in court. Defendants’ first argument is that their partial success in court demonstrated their substantia] justification in discharging plaintiff and in defending the discharge. Defendants claim success based on this court’s prior statement that, according to controlling Department of Defense regulations, the Air Force was not required to offer plaintiff the opportunity for probation and rehabilitation before discharge. Defendants’ claims of victory are belied by the subsequent text of the Memorandum and Order which states that “although the Air Force was not required to offer plaintiff rehabilitation and probation, it was required to give serious consideration to offering him probation and rehabilitation rather than discharge.” Mem. and Order at 29 (Feb. 5, 1991). Thus, not only does defendants’ argument not persuade, it supports a finding that the government’s position was not justified: the administrative record does not reflect that the Air Force ever considered the possible justification of offering plaintiff probation and rehabilitation. As a corollary to their first argument, defendants challenge the power of the court to find that they failed to comply with the Department of Defense regulation requiring that the reviewing authority consider a member’s potential for rehabilitation. See 32 C.F.R. Pt. 41, App. A, Pt. 2, § A (1991). Defendants contend that because the court and not the parties raised this regulation sua sponte, the Air Force’s noncompliance with the regulation cannot be part of the substantial justification analysis. This argument hardly merits mention. Not only is the Air Force responsible for knowledge of and adherence to controlling Department of Defense regulations, but, as defendants well know, this court is obligated to consider all relevant law in making its decision. Here, 32 C.F.R. Pt. 41 was pertinent to judicial resolution of plaintiff’s action. Defendants’ second argument is that the standards the Board used to determine whether to retain or discharge plaintiff were not unacceptably vague and that defendants were substantially justified in relying on them. Defendants correctly assert that the Air Force could develop adjudicatory standards either through rule making, or through “case-by-case decision-making.” If the Air Force decides to use the case-by-case method, however, it is nonetheless required to include its reasoning on the record to show that its decision was not arbitrary and capricious. Because the Air Force recorded no evidence of any consideration of retaining plaintiff with probation or rehabilitation, this court cannot discern the reasoning used by the reviewing authorities in their decisions to discharge plaintiff. Thus the court cannot deem the government’s position to be substantially justified. Defendants also contend that the government’s position has never been that evidence of drug use alone was sufficient to require plaintiff’s discharge or that all NCO drug users must be discharged. Defendants assert that plaintiff’s record as well as his offense were “considered at all levels.” Defendants also state that plaintiff received a lengthy probation review solely to consider probation and rehabilitation, but that the strength of plaintiff’s record was outweighed by concerns favoring discharge in the context of NCOs. Defendants rely on a presumption that public officials act in good faith as evidence both of the reasonableness of the discharge decision and of the truth of Air Force officials’ statements that they considered plaintiff's record and did not automatically discharge him. Defendants reiterate the court’s language recognizing that decisions of military agencies are treated with particular deference because of the military’s special position in society and its unique competence to make military decisions. See Mem. and Order at 18 (Feb. 5, 1991). They assert that any explanation of the AFBCMR’s decision would “inevitably involve its discretionary assessment of factors for which this Court has no authority to substitute its wisdom.” See Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). The accuracy of defendants’ contentions cannot be deduced from the administrative record. That record, as stated above, fails to reflect that any consideration was given to plaintiff’s record or that any real standards were used by the reviewing authority. Because the administrative record is grossly inadequate, this court cannot find that defendants’ position was substantially justified. No single fact has been presented to support justification. Moreover, this court will not permit the Air Force to merely invoke the presumption that officials act in good faith, or to invoke the special deference given to the military, and thereby obtain unfettered discretion to do whatever it pleases. First, the presumption of good faith is overcome when officials summarily discharge, without any evidence whatever that they considered offering probation or rehabilitation, a man who has served in the military for seventeen years without incident and who, on one occasion, tests positive for marijuana use. Second, contrary to defendants’ contentions, military discharge decisions are subject to judicial review and are reviewed by the same standards as other administrative decisions. See Administrative Procedure Act, 5 U.S.C. §§ 701(b)(1)(F) & (G) (1988). “[Administrative decisions are subject to review, and can be judicially held invalid, on the ground that the Secretary has failed to follow his own valid regulations.” Denton v. Secretary of the Air Force, 483 F.2d 21, 25 (9th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974). None of the other factors proffered to support a finding of substantial justification exists in this case. On the contrary, several factors demonstrate the lack of substantial justification: (1) the Air Force’s decision to summarily discharge plaintiff without seriously considering probation or rehabilitation was contrary to the Air Force’s own regulations; (2) the Air Force’s decision clearly conflicted with Department of Defense policy favoring probation and rehabilitation over automatic discharge; and (3) the proceedings in this case have been lengthy. The pertinent regulation requires that “careful consideration always be given before keeping noncommissioned officers (NCOs) who are verified drug abusers in the Air Force.” AFR 39-10, para. 5-49(c) (emphasis added). The regulation suggests that retention may sometimes be appropriate, but it does not specify any circumstances. Mem. and Order at 37 (Feb. 5, 1991). In the instant case, the government proffered no factual grounds or evidence to support its finding that plaintiff was not entitled to retention and rehabilitation. In its Memorandum and Order of February 5, 1991, this court concluded that defendants’ decision to discharge plaintiff for misconduct based on drug abuse, pursuant to AFR 39-10, para. 5-49(c), was arbitrary and capricious and an abuse of discretion for the following reasons: (1)Paragraph 5-49(c) contains no controlling standards for determining the circumstances and factors to be weighed in ascertaining when an NCO should be offered probation and rehabilitation in lieu of discharge. Without such standards defendants’ conduct was inherently arbitrary. (2) There is nothing in the administrative record that could possibly support an inference that defendants weighed and considered any evidence whatever in arriving at their decision to discharge plaintiff rather than offer him probation and rehabilitation, other than evidence as to whether he ingested marijuana on March 20, 1986. (3) There is nothing in the administrative record that could possibly support an inference that defendants followed the law specified by the Department of Defense that “the potential for rehabilitation and further useful military service shall be considered by the Separation Authority.... If separation is warranted despite the potential for rehabilitation, consideration should be given to suspension of the separation, if authorized.” 32 C.F.R. Pt. 41, App. A, Pt. 2, § A(2)(b). See also, factors suggested in Section A of Pt. 2 that may be considered on the issue of retention or separation. (4) The administrative record before the court offers no rationale for the actions taken by defendants. Mem. and Order at 55-56 (Feb. 5, 1991). Not only did the Air Force fail to follow its own policy of carefully considering whether to discharge plaintiff or retain him with rehabilitation and probation, but it also flouted the controlling Department of Defense regulation favoring rehabilitation and probation. Regulations instituting the military drug and alcohol abuse program and regulations governing administrative separations were both promulgated by the Department of Defense; the regulations by their terms apply to all branches of the military. See 32 C.F.R. §§ 41.2 and 62.2 (1991). Department of Defense regulations control when they conflict with regulations promulgated by the Air Force. Mem. and Order at 20 (Feb. 5, 1991); see Casey v. United States, 8 Cl.Ct. 234, 239 (1985); Simmons v. Brown, 497 F.Supp. 173, 178 (D.Md.1980). The conflict between the regulations arises from the statute authorizing the Department of Defense’s drug and alcohol abuse policy, which states that: “[t]he Secretary of Defense shall prescribe regulations ... [to] treat, and rehabilitate members of the armed forces who are dependent on drugs or alcohol.” 10 U.S.C. § 1090 (1988). Congress embraced a policy of rehabilitating members of the armed forces dependent on drugs. Id. Congress delegated to the Secretary of Defense the responsibility of developing programs and regulations to effectuate that rehabilitation. Pursuant to congressional mandate, the Department of Defense promulgated regulations in 1982 providing that: (а) It is the goal of the Department of Defense to be free of the effects of alcohol and drug abuse; of the possession of and trafficking in illicit drugs by military and civilian members of the Department of