**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 99-1198

[John R. Briddell, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appellant\'s Motion for Panel Decision

(Decided August 23, 2002 )

*Kathy A. Lieberman*, of Washington, D.C., was on the pleadings for the
appellant.

*Tim S. McClain*, General Counsel; *Joan E. Moriarty*, Acting Assistant
General Counsel; *Thomas A. McLaughlin*, Special Assistant to the
Assistant General Counsel; and *Christine D. Senseman*, all of
Washington, D.C., were on the pleadings for the appellee.

Before FARLEY, STEINBERG, and GREENE, *Judges*.

STEINBERG, *Judge*, filed the opinion of the Court. GREENE, *Judge*,
filed a concurring opinion. FARLEY, *Judge*, filed a dissenting opinion.

STEINBERG, *Judge*: This matter is before the Court on the appellant\'s
motion for a panel decision, following denial by a single judge of the
appellant\'s application for reasonable attorney fees and expenses under
the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA).

The appellant, veteran John R. Briddell, previously appealed through
counsel a March 18, 1999, decision of the Board of Veterans\' Appeals
(Board or BVA) that had denied increased Department of Veterans Affairs
(VA) ratings for chronic low-back pain and for postoperative residuals
of the left shoulder, and denied initial VA compensable ratings for
chondromalacia of the right and left patellas. Record at 4. On February
21, 2001, the Court, in a single-judge order, vacated that Board
decision and remanded the matters for readjudication. *Briddell v.
Principi*, No. 99-1198, 2001 WL 197398, at \*1 (Vet. App. Feb. 21, 2001)
\[hereinafter Remand Order\]. On June 12, 2001, the appellant timely
filed, through counsel, his EAJA application, which the Court, in a
single-judge order, denied on December 17, 2001. *Briddell v. Principi*,
No. 99-1198, 2001 WL 1609685, at \*1 (Vet. App. Dec. 17, 2001)
\[hereinafter Initial EAJA Order\]. The appellant then filed a timely
motion for a panel decision, to which the Secretary, as required by
Court order, responded, and the appellant filed a reply. The Court will
grant the appellant\'s motion for a panel decision, withdraw the
December 17, 2001, single-judge order, issue this opinion in lieu of
that order, and, for the reasons that follow, deny the appellant\'s EAJA
application.

**I. Relevant Background**

On March 27, 2000, the appellant, during the pendency of the merits
portion of this case, filed his brief, in which he stated, inter alia:
\"The parties hereto have already agreed that the portion of the BVA
decision here on appeal regarding \[a\]ppellant\'s claim for his
left-shoulder disability should be vacated and remanded for
readjudication. Accordingly, that issue will not be addressed further
herein.\" Appellant\'s Brief (Br.) at 7-8. On September 28, 2000, the
Secretary filed a motion to remand in part and summarily affirm in part
the BVA decision. Therein, the Secretary argued for remand of the
appellant\'s shoulder claim on the grounds that the Board had failed to
consider, under *Fenderson v. West*, 12 Vet.App. 119 (1999), whether a
staged rating was appropriate and to discuss the provisions of 38 C.F.R.
§ 4.71a, Diagnostic Code 5203 (concerning malunion or nonunion).
Secretary\'s Sept. 2000 Motion (Mot.) at 4-5. As to the other claims
involved in the Board decision, the Secretary argued for affirmance.
*Id*. at 6-10.

On October 12, 2000, the appellant filed his reply brief, arguing, inter
alia, that \"\[t\]he Secretary does not dispute the first point \[,
i.e., that the Board failed to provide an adequate statement of reasons
or bases in connection with the shoulder claim\], and both parties are
seeking a remand of the shoulder claim.\" Reply Br. at 1. The Court, on
December 21, 2000, issued a single-judge order that acknowledged that
\"\[t\]he parties agree that the shoulder claim should be remanded\",
but then ordered the Secretary to show cause \"why the Board decision
should not be vacated in its entirety and the matters remanded\" for
\"the Board to determine, in the first instance, whether the \[Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov.
9, 2000) (VCAA),\] is applicable to this claim.\" *Briddell v. Gober*,
U.S. Vet. App. No. 99-1198, slip op. at 1-2 (Dec. 21, 2000).

In a January 22, 2001, response, the Secretary \"move\[d\] the Court to
vacate and remand the BVA decision of March 18, 1999\[,\] to the Board
for readjudication in accordance with the provisions of the VCAA.\"
Secretary\'s Jan. 22, 2001, Response (Resp.) at 4. The Secretary also
acknowledged that \"\[c\]ounsel for appellant does agree that remand is
necessary in this case.\" *Ibid.* In the February 21, 2001, single-judge
order, the Court granted \"the Secretary\'s unopposed motion to vacate\"
the Board decision, and vacated the Board decision and remanded the
matters. Remand Order at \*1. The full text of the remand order is as
follows:

> Before the Court is the March 18, 1999, decision of the Board of
> Veterans\' Appeals (Board) that denied entitlement to increased
> ratings for post-operative residuals of a left shoulder injury
> (shoulder claim) and chronic low back pain (back claim), and to
> initial compensable ratings for chondromalacia of the right and left
> patellas (knee claims). ***For the reasons that follow***, the Court
> will vacate the Board decision and remand the matter for
> readjudication.
>
> The appellant filed a brief on March 27, 2000, stating that the
> parties had agreed to a remand of the shoulder claim and arguing for a
> remand of the back and knee claims. On September 28, 2000, the
> Secretary filed a motion in lieu of a brief urging the Court to remand
> the shoulder claim but to affirm the Board\'s decision in all other
> respects. On December 21, 2000, the Court ordered the Secretary to
> show cause why, in light of the Veterans Claims Assistance Act of 2000
> (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), the Board
> decision should not be vacated in its entirety and the matters
> remanded for readjudication. In response, on January 22, 2001, citing
> the VCAA, ***the Secretary filed an unopposed motion to vacate*** the
> Board decision and remand all claims.

On consideration of the foregoing, it is

> ORDERED that ***the Secretary\'s unopposed motion to vacate*** is
> granted. It is further
>
> ORDERED that the March 18, 1999, decision of the Board is VACATED and
> the matter is REMANDED for readjudication.

*Id.* at 1-2 (emphasis added).

In the appellant\'s EAJA application, he argues that he is a prevailing
party on the basis of having secured a remand, and alleges that the
position of the Secretary was not substantially justified. Application
(Appl.) at 2-4. In the Secretary\'s July 16, 2001, response to the
appellant\'s application, the Secretary argues that the appellant is not
a prevailing party, and that the position of the Secretary was
substantially justified at both the administrative and litigation
stages. Secretary\'s EAJA Resp. at 3-4. As to the initial concession of
a remand of the shoulder claim, the Secretary states: \"The Court is not
bound by the parties\' agreement that a partial remand was necessary,
and could have concluded that remand was not appropriate despite the
parties\' urging.\" *Id.* at 14. In his October 19, 2001, reply, the
appellant reiterates his contentions that he is a prevailing party and
that the position of the Secretary at the administrative level was not
substantially justified. Appellant\'s EAJA Reply at 1. Specifically, he
contends that he is a prevailing party under the \"inevitable victory\"
theory, and notes: \"In this regard, \[the a\]ppellant points to the
Secretary\'s admission in his brief that the Board decision herein was
erroneous with respect to one claim and that the decision with respect
to that claim should be vacated and remanded.\" *Id.* at 2-3.

In the Court\'s December 2001 order denying the EAJA application, the
Court concluded: \"The remand ordered in this matter was predicated upon
the change in law brought about by the enactment of the VCAA and not
upon any finding by the Court of administrative error.\" Initial EAJA
Order at \*1. The Court concluded that, pursuant to *Sumner v.
Principi*, 15 Vet.App. 256, 264 (2001) (en banc), and *Vaughn v.
Principi*, 15 Vet.App. 277, 280 (2001) (per curiam order), such a remand
could not confer prevailing-party status. *Ibid*.

The appellant then timely filed a motion for a panel decision. Therein,
the appellant asserts that he is a prevailing party pursuant to
*Sumner*, *supra*, because of the acknowledgment of error in the
Secretary\'s September 2000 motion. Mot. for Panel Decision at 2. On
February 4, 2002, a panel of the Court issued an order instructing the
Secretary to respond to the appellant\'s motion for a panel decision and
allowing the appellant to file a reply to the Secretary\'s response.
*Briddell v. Principi*, 15 Vet.App. 413, 413 (2002) (per curiam order).
A concurring statement invited the parties to address the implications,
if any, of *Jacobsen v. West*, 12 Vet.App. 546, 546-48 (1999), for the
prevailing-party analysis. *Ibid.* (Steinberg, J., concurring).

In a March 27, 2002, response, the Secretary argues that the remand
order in this case was \"based on the VCAA alone\" and, therefore, under
*Sumner*, the appellant was not a prevailing party. March 2002 Resp. at
4. As to *Jacobsen*, the Secretary states that that case \"has no direct
bearing on the case at bar\" because the issue in contention in
*Jacobsen* was substantial justification, whereas the principal issue in
contention in the instant case is prevailing-party status. *Id.* at 5.
Finally, the Secretary notes: \"Applying the *Jacobsen* rationale to a
determination of prevailing-party status would lead to an impermissible
result. Basing prevailing-party status on any prior admission by the
Secretary is essentially granting prevailing-party status using the
now-defunct inevitable-victory test.\" *Id.* at 6. In a May 13, 2002,
reply, the appellant again argues that prevailing-party status can be
achieved under *Sumner* when there is a remand and the Secretary has
acknowledged error even though the Court did not act on that
acknowledgment, as was the case here. May 2002 Reply at 1-2. He argues
further that *Jacobsen* supports his position in this case: \"\[A\]bsent
the need for a remand for application of the VCAA, the appellant would
have been entitled to a remand predicated upon the Board\'s error as
conceded by the Secretary\'s brief. The Secretary conceded error. That
concession alone should be sufficient to confer prevailing\[-\]party
status on \[the\] appellant.\" *Id.* at 4. The Court has voted
unanimously to grant the motion for a panel decision and will withdraw
the December 17, 2000, single-judge order and issue this opinion in its
stead.

**II. Analysis**

***A. Jurisdiction***

The appellant\'s June 12, 2001, EAJA application was filed within the
30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B).
In order to satisfy any EAJA jurisdictional content requirements that
apply, an application must contain the following: (1) A showing that, by
virtue of the Court\'s remand, he is a prevailing party within the
meaning of the EAJA; (2) a showing that he is a party eligible for an
award under the EAJA because his net worth does not exceed \$2,000,000;
(3) an allegation that the position of the Secretary was not
substantially justified; and (4) an itemized fee statement. *See*
28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); *Cullens v. Gober*,
14 Vet.App. 234, 237 (2001) (en banc). The appellant\'s EAJA application
was timely filed and satisfies any EAJA jurisdictional content
requirements. *See ibid*.

***B. Prevailing Party***

In order to receive an EAJA award, an EAJA applicant must be a
prevailing party. *See* 28 U.S.C. § 2412(d)(1)(A) (\"court shall award
to a prevailing party . . . fees and other expenses\"); *Sumner*, 15
Vet.App. at 260-61. The applicant has the burden of demonstrating
prevailing-party status under the EAJA. *Id.* at 261. In the *Sumner*
case, this Court held, in a unanimous en banc opinion, that in order to
attain EAJA prevailing-party status, there must be either a direction by
the Court for VA to award VA benefits or a remand by this Court that is
\"***predicated*** upon administrative error\". *Id*. at 265 (emphasis
added). *Sumner* concluded that a remand is predicated on administrative
error if \"in his motion . . . \[,\] the Secretary acknowledge\[s\]
error\" or if, \"in remanding the matter\", the Court \"recognize\[s\]
administrative error\". *Ibid*. *Sumner* went on to hold that
prevailing-party status had not been achieved there because there was no
merits disposition (let alone a direction to award benefits) and the
remand ordered was not predicated on administrative error because, as
explained in *Cycholl v. Principi*, \"neither one of the criteria for
finding such a remand were met -- that is, \'nowhere in his motion did
the Secretary acknowledge error, and because, alternatively, in
remanding the matter the Court did not recognize administrative
error.\'\" *Cycholl*, 15 Vet.App. 355, 357 (2001) (quoting *Sumner*,
15 Vet.App. at 264). In *Vaughn*, a case dealing with legislation (the
VCAA) enacted subsequent to the Board decision there under review, the
Court found that the appellant was not a prevailing party due to a
remand based solely on the newly enacted legislation. *Vaughn*, 15
Vet.App. at 279-80. The Court further stated there: \"Given that the
sole basis for the remand was the enactment of the VCAA and that the
Board\'s disposition of this case had occurred ***before*** the
enactment of the VCAA, ***there could not have been any Board error with
respect to the VCAA***.\" *Id.* at 279 (latter emphasis added).

***1. Prevailing-Party under* Sumner**. Applying the criteria set forth
in *Sumner* to determine the question of prevailing-party status, there
has been no direction to award benefits here, so the inquiry is whether
there was a remand \"***predicated*** upon administrative error\". A
remand may be predicated upon administrative error if (1) the Court
recognizes administrative error in remanding the case, or (2) if, in the
words of *Sumner*, \"in his motion . . . \[,\] the Secretary
acknowledge\[s\] error\". *Ibid.* A review of the remand order in this
case reveals that the Court clearly did not recognize any error.
Therefore, in order for the appellant to be a prevailing party under
*Sumner*, the Secretary must have acknowledged error \"in his motion\".

Because there were two Secretarial motions for remand here, the Court
must determine what is meant by \"in ***his*** motion\". The language of
*Sumner* in this regard is: \"The appellant\'s claim was remanded as
requested in the Secretary\'s unopposed motion for remand. Because
nowhere in his motion did the Secretary acknowledge error, . . . the
remand was not predicated upon administrative error.\" *Ibid.* In
*Sumner*, there was only one motion for remand. *Id.* at 257. It would
be incongruous to believe that the Court was referring to any motion
there other than the motion that the Court granted and that thus
directly prompted the remand.

There is not the slightest hint in *Sumner* or in any other opinion of
this Court that prevailing-party status should be determined based on
something other than what the Court actually ***did*** on the merits,
or, certainly, that it should be determined based on something that it
decided ***not*** to do. Indeed, why else would the Court in *Sumner*
have established the test as \"a court remand predicated upon
administrative error\"? *Id.* at 264. The word \"predicated\" requires a
connection, or a nexus, to use a familiar term in our veterans law
lexicon, between \"remand\" and \"error\". As *Webster\'s New World
Dictionary* puts it, \"to predicate\" means \"to affirm or base
(something) *on* or *upon* given facts, arguments, conditions, etc.\"
[Webster\'s New World Dictionary]{.smallcaps} 1062 (3d Coll. ed. 1988).
The Court in *Sumner* looked beyond its own words -- the words it used
in its disposition of the merits -- only to account for the situation,
which is a very common one in this Court, where the Court grants,
without further comment, a joint, an uncontested, or even a contested
motion and must look to ***the words of the motion*** in order to
determine the nature and scope of the Court\'s action.

In contrast to the foregoing logical and contextual reading of *Sumner*,
the appellant\'s reading, which is accepted by the dissenting opinion,
would tear from their context the words referring to the Secretary\'s
acknowledgment of \"administrative error\". Interpreting words in a
judicial opinion in this respect is very much like interpreting words in
a statutory provision. For the latter purpose, it is a major precept
that \"each part or section should be construed in connection with every
other part or section so as to produce a harmonious whole\[; t\]hus, it
is not proper to confine interpretation to the one section to be
construed.\" [Norman J. Singer, Sutherland on Statutory
Construction]{.smallcaps} § 46:05 (6th ed. 2000); *see Talley v.
Derwinski*, 2 Vet.App. 282, 286 (1992) (quoting, in part,
[Singer]{.smallcaps}, *supra*). The reading adopted by the appellant and
the dissent, although perhaps somewhat literal in a myopic way, is both
illogical and unprecedented and confounds common sense. Moreover, to the
extent that the argument could be made that the Court could, in the
instant EAJA deliberation, make a finding on the joint position taken by
the parties at the merits stage but not then adopted by the Court, and
thus create an ex post facto \"judicial imprimatur\" for purposes of the
EAJA, such an argument clearly runs afoul of the landmark U.S. Supreme
Court case of *Buckhannon* *Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources*, 532 U.S. 598 (2001), which was
the basis for our *Sumner* opinion. The Supreme Court in *Buckhannon*
required a judicial imprimatur \"on the change\" in the legal
relationship of the parties. *Buckhannon*, 502 U.S. at 604. A finding
now that the Secretary\'s September 2000 motion should have been granted
does not alter the legal relationship of the parties, because \"the
change\" contemplated by *Buckhannon*, *supra*, would have had to occur
at the time of the underlying Court action (in this case, the remand
order) that is the basis for the fee application that was filed. The
dissenting opinion completely ignores this *Buckhannon* \"judicial
imprimatur\" requirement, *Buckhannon*, *supra*; *see post* at 14
(stating requirements of prevailing-party determination in this case to
be that Secretary had \"acknowledged error\" and had \"agreed to a
remand of the appellant\'s shoulder claim\" but failing to mention or
discuss in this context judicial-imprimatur requirement). It would
furthermore be, to say the least, a highly anomalous result for the
Court to defer consideration of these issues on the merits, but then
take them on at the EAJA stage, when such a Court decision could well
end up being made so late in the process that the Board had already made
its decision on remand. *See Mahl v. Principi*, 15 Vet.App. 37, 43
(2001) (Steinberg, J., dissenting) (\"\[o\]therwise, we would be
confronted with the anomaly that the Board might not be bound in
readjudicating the case by decisions made ***as to*** the merits of the
BVA\'s prior decision (but not as part of the Court\'s review of the BVA
decision) long after the case has been remanded to the Board by the
Court and perhaps even after some adjudication on remand had already
taken place\"); *see also Flemming v. Principi*, 16 Vet.App. 52, 55
(2002) (Steinberg, J., concurring in part and dissenting in part);
*Cullens*, 14 Vet.App. at 249 (Kramer, C.J., concurring).

In light of our conclusion that there must be an explicit connection
between the asserted administrative error and the Court\'s remand, the
appellant could be said to be a prevailing party under *Sumner* only if
the Court\'s February 2001 remand order can fairly be read as having
granted, in whole or in part, the Secretary\'s September 2000 motion
confessing error as to the shoulder claim. However, a reading of that
remand order illustrates that the Court was granting only ***one***
remand motion: The Secretary\'s January 22, 2001, VCAA-remand motion. In
the first \"ORDERED\" paragraph, that order stated that \"the
Secretary\'s unopposed motion to vacate is granted.\" If there is any
ambiguity about what \"unopposed motion\" meant, it is quickly resolved
by examining the way the order described the two motions here at issue.
*Ibid.* The Secretary\'s September 2000 motion is described, inter alia,
as \"a motion in lieu of a brief urging the Court to remand the shoulder
claim\". The VCAA-remand motion, on the other hand, is described as \"an
unopposed motion to vacate the Board decision and remand all claims\".
Both the subject of the first \"ORDERED\" paragraph and the VCAA-remand
motion are described as being an \"unopposed motion\" of the Secretary.
Although a portion of the September 2000 motion was unopposed, only the
VCAA-remand motion is ***referred to*** in the remand order as an
\"unopposed\" motion. In order to find that the Secretary\'s September
2000 motion was actually granted by the remand order, we would have to
find either that (1) despite the similarity in terminology between the
VCAA-remand motion and the \"ORDERED\" paragraph, that paragraph
actually referred to the September 2000 motion (because this putative
view would state that that motion was the motion that was granted, and
because the order grants the Secretary\'s motion in full, any such
reading of the February 2001 order would create a conflict between that
motion\'s request for partial affirmance of the Board decision and the
wholesale vacatur of the Board decision ordered by the Court); ***or***
that (2) despite the use of the singular noun \"motion\" in the
\"ORDERED\" paragraph and despite the lack of detail given in describing
the \"motion\" granted, the order actually was granting ***both*** the
VCAA-remand motion ***and*** one portion of the September 2000 motion.
Either reading would entail stretching the actual language of the remand
order well beyond any reasonable or logical reading, and the Court is
unwilling to engage in such an approach.

For the above reasons, therefore, the Court cannot accept the
appellant\'s argument, as adopted by our dissenting colleague, based on
fractured language extracted from the context of the Court\'s opinion in
*Sumner*, that the appellant is a prevailing party.

***2. Extension of* Jacobsen**. The appellant also argues that the
holding of *Jacobsen*, *supra* -- that, absent a remand for
readjudication pursuant to newly issued caselaw, \"the appellant would
have been entitled to a remand predicated on the Board\'s error as
conceded by the Secretary\'s brief\", and that, therefore, substantial
justification for the Secretary\'s position on the conceded error would
be examined -- should be extended to the determination of
prevailing-party status in this case. Specifically, the appellant quotes
in part the following passage from *Jacobsen*:

> Accordingly, it is apparent that, absent the necessity for a remand
> for application of *Hodge*\[*v. West*, 155 F.3d 1356, 1362 (Fed.Cir.
> 1998) (holding invalid, as beyond requirements of 38 C.F.R. § 3.156(a)
> (1998), test enunciated in *Colvin v. Derwinski*, 1 Vet.App. 171, 174
> (1991), for determining materiality of newly presented evidence)\],
> the appellant would have been entitled to a remand predicated on the
> Board\'s error as conceded by the Secretary\'s brief. Thus, the Court
> concludes that, under the unique circumstances here presented, as to
> two of the claims the Secretary was not substantially justified, and
> the appellant is entitled to an award of EAJA fees. *See Jackson v.
> West*, \[12 Vet.App. 422, 429 (1999)\]; *Elcyzyn v. Brown*, 7 Vet.App.
> 170, 175 (1994) (\"only one determination of lack of substantial
> justification with respect to the entire matter need be made\").

*Jacobsen*, 12 Vet.App. at 548. In *Jacobsen*, a concurring opinion
stated:

> Today, the Court creates a narrow exception to this general rule that
> the Court will not look beyond what the Board was required to do under
> the terms of the remand ordered by the Court, but only where, as here,
> the Secretary has explicitly conceded and requested a remand for an
> error not referenced in a joint motion or in the Court\'s order.

*Ibid.* (Kramer, J., concurring); *see also Jacobsen v. West*, 13
Vet.App. 35, 36-40 (1999) (en banc per curiam order) (Steinberg, J.,
dissenting) (arguing that *Jacobsen*, by looking beyond actual remand
order to speculate on potential outcome of case absent intervening
change, violated prior Court precedent).

We find convincing the Secretary\'s argument that extension of
*Jacobsen* to a prevailing-party determination would be to adopt an
\"inevitable victory\" analysis, which the Court has already rejected in
*Vaughn*, 15 Vet.App. at 280. March 2002 Resp. at 6. In *Vaughn*, this
Court stated as follows concerning the inevitable-victory test:

> Finally, the appellant argues that she has obtained prevailing-party
> status under the inevitable-victory test. The inevitable-victory test
> has been raised to the Court, but we have never accepted it. *See*,
> *e.g.*, *Lematta v. Brown*, 8 Vet.App. 504, 510 (1996) (citing *Perket
> v. Sec*\[*\'*\] *y of Health & Human Services*, 905 F.2d 129, 132 (6th
> Cir. 1990), and holding that test inapplicable where there had been no
> superseding legislation); *Chandler v. Gober*, 11 Vet.App. 6, 8 (1997)
> (holding that test was not applicable where \"victory has neither been
> attained nor assured\"), *overruled in part by Miley v. Principi*, 242
> F.3d 1050, 1054 (Fed. Cir. 2001). Where a court has remanded a case at
> the merits stage based solely on a statutory change, the
> inevitable-victory test would allow for prevailing-party status where
> the appellant later, at the EAJA stage, could prove that he would have
> prevailed at the merits stage absent that statutory change. *See*
> *Perket*, 905 F.2d at 133; *see also* *Milton v. Shalala*, 17 F.3d
> 812, 815 (5th Cir. 1994); *Guglietti v. Sec*\[*\'*\]*y of Health &
> Human Services*, 900 F.2d 397, 402 (1st Cir. 1990). However, under
> *Buckhannon*, \[532 U.S. at 604-05\], and *Sumner*, \[15\] Vet.App. at
> \[264-65\], that test can no longer be viable because it lacks the
> critical requirement that a remand at the merits stage be predicated
> on administrative error. Accordingly, we hold that the
> inevitable-victory test, just as the catalyst test, is not a
> permissible basis for establishing prevailing-party status under the
> EAJA. *See Buckhannon*, \[*supra*,\] *Sumner*, \[*supra*,\] and
> *Thayer*\[ *v. Principi*, 15 Vet.App. 204, 211 (2001)\].

*Vaughn*, *supra*.

Under the inevitable-victory test, some courts, before *Buckhannon*,
*supra*, had recognized that an appellant could establish
prevailing-party status by showing that he would have prevailed absent
an intervening event such as the enactment of a statute (for example,
the VCAA). The extension of the *Jacobsen* substantial-justification
approach into the prevailing-party-status context would permit an
appellant to establish that he was a prevailing party where he could
show that, absent the necessity for a remand for application of an
intervening change in caselaw (in *Jacobsen*, the opinion of the U.S.
Court of Appeals for the Federal Circuit in *Hodge*, *supra*), the
appellant would have been entitled to a remand predicated on the
Board\'s error as conceded by the Secretary\'s pleading. The only
difference between the two standards would be that, under the *Jacobsen*
approach, there would be a requirement that the Board error be conceded,
at some point, by the Secretary. However, such a concession would affect
only the degree of persuasiveness with which the appellant could assert
that he would have prevailed; it doesn\'t alter the fact that ***both
theories rely on a \'but for\' test, i.e., \'but for the remand on other
grounds, I would have prevailed\'.*** In that sense, the two theories
are virtually the same, and, accordingly, transferring a *Jacobsen*-type
approach into the context of determining prevailing-party status would
run afoul of *Vaughn*\'s rejection of the inevitable-victory test and,
of course, of the necessity for a remand \"predicated\" on -- that is,
expressly linked to or associated with -- administrative error, as
described in *Sumner* and *Vaughn*, both *supra*, and as set forth in
part II.B.1., above. Therefore, the Court also rejects the appellant\'s
invitation to extend the *Jacobsen* rationale to prevailing-party
inquiries.

For all the above reasons, the appellant has failed to demonstrate that
he is a prevailing party. *See Sumner*, 15 Vet.App. at 261. Because the
appellant is not a prevailing party, no further inquiry is necessary.
*See id.* at 261, 265 (examining only prevailing-party issue and, after
finding no prevailing-party status, denying EAJA application).

**III. Conclusion**

Upon consideration of the foregoing analysis, the appellant\'s December
20, 2001, motion for a panel decision is granted. The Court\'s December
17, 2001, single-judge order is withdrawn, and this opinion is issued in
its stead. The appellant\'s EAJA application is denied.

APPLICATION DENIED.

GREENE, *Judge*, concurring: I concur in the holding of the majority
opinion and write separately only to note that I would have reached that
conclusion by a more direct route.

Two cases are dispositive of this matter: *Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health and Human Resources*,
532 U.S. 598 (2001)*,* and *Sumner v. Principi*, 15 Vet.App. 256, 264
(2001) (en banc). In *Buckhannon*, the Supreme Court eliminated the
catalyst theory as a basis for achieving prevailing party status, and in
doing so, revisited its prevailing party jurisprudence. *Buckhannon*,
532 U.S. at 600-10. Following *Buckhannon,* this Court decided *Sumner*,
in part to \"reexamine our jurisprudence with regard to attaining
prevailing-party status pursuant to the success-on-the-merits theory
under the EAJA and to clarify our caselaw.\" *Sumner,* 15 Vet.App. at
261. In the underlying appeal in *Sumner*, the Court had granted the
Secretary\'s unopposed motion to remand the matter, based on the Board
Chairman\'s inclination to grant reconsideration. *Id.* at 257. The
*Sumner* Court reviewed the EAJA statute and numerous cases interpreting
it, and stated: \"Supreme Court cases awarding prevailing-party status
either require the ultimate receipt of the benefit that was sought in
bringing the litigation, i.e., the award of a benefit, or, at a minimum,
a court remand predicated upon administrative error.\" *Id.* at 264. The
Court went on to state, with regard to the facts of that particular
case, \"Because nowhere in his motion did the Secretary acknowledge
error, and because, alternatively, in remanding the matter, the Court
did not recognize administrative error, the remand was not predicated
upon administrative error.\" *Id.* at 265. Stated another way, *Sumner*
holds that in order to qualify as a prevailing party for EAJA, a party
must receive either (A) the award of a benefit sought, or (B) a court
remand predicated upon administrative error. Defining what would
constitute a (B)-type remand, the Court included situations where there
was a motion by the Secretary acknowledging error ((B)(1)), or a Court
remand recognizing administrative error ((B)(2)). Both (B)(1) and (B)(2)
must be the equivalent of a (B)-type \"court remand predicated upon
administrative error,\" since neither (B)(1) nor (B)(2) is an (A)-type
\"award of the benefit sought.\" Therefore, only an acknowledgment of
error by the Secretary *that is accepted by the Court* would constitute
a \"court remand predicated upon administrative error\" that may confer
prevailing-party status to a litigant. To hold otherwise, and to permit
*any* concession of error by the Secretary to confer prevailing-party
status upon an appellant, whether the Court accepts such concession or
not, would remove the necessary judicial imprimatur required by
*Buckhannon*. *See Buckhannon*, 532 U.S. at 605 (\"A defendant\'s
voluntary change in conduct, although perhaps accomplishing what the
plaintiff sought to achieve by the lawsuit, lacks the necessary judicial
imprimatur on the change.\"). Although I would confess that the language
\"and because, alternatively\" of *Sumner* is inartful, I cannot accept
the dissent\'s conclusion that the plain language of *Sumner* somehow
eliminates *Buckhannon\'s* judicial imprimatur requirement.

In *Vaughn v. Principi*, the Court held that the appellant was precluded
from achieving prevailing-party status, \"based on obtaining a remand
solely for readjudication in light of the enactment of the VCAA.\"
15 Vet.App. 277, 280 (2001). Here, the Court\'s one dispositive order
specifically grants the Secretary\'s unopposed motion to remand in light
of the enactment of the VCAA. There is no \"court remand predicated upon
administrative error,\" so as to confer prevailing-party status upon the
appellant. Although Mr. Briddell may be frustrated with this resolution,
in light of the fact that his counsel worked diligently for a remand for
reasons other than the VCAA, and because the Secretary conceded error in
his brief to the Court, this matter must be decided not on emotion but
on the basis of the law.

FARLEY, *Judge*, dissenting: As a single judge, I originally found that
the appellant was not a prevailing party and denied his application for
fees under EAJA. The appellant filed a timely motion for panel decision
pursuant to Rule 35 of the Court\'s Rules of Practice and Procedure. In
his motion, the appellant argued as follows:

> In *Sumner v. Principi*, 15 Vet.App. 256, 264 (2001) \[(en banc)\],
> this Court held that \"a remand does not constitute \'some relief on
> the merits\' unless that remand is predicated upon administrative
> error,\" and found that \"\[b\]ecause nowhere in his motion did the
> Secretary acknowledge error, and because, alternatively, in remanding
> the matter, the Court did not recognize administrative error, the
> remand was not predicated upon administrative error.\" From this
> language, it is apparent that a remand is predicated upon
> administrative error in two scenarios: either the Secretary
> acknowledges error in his pleadings or the Court finds error.
> Appellant asserts that in the instant case, he is a prevailing party
> because the Secretary acknowledged administrative error in his
> pleadings.

Mot. for Panel Decision at 2. What was apparent to the appellant
belatedly became apparent to me.

In its December 21, 2000, order, the Court took specific note of the
fact that \"\[t\]he parties agree that the shoulder claim should be
remanded. The appellant argues that the remaining claims should also be
remanded . . . .\" Due to the then-newly enacted VCAA, the Court
directed the Secretary to show cause why \"the Board decision should not
be vacated in its entirety and the matters remanded.\" Nothing in the
December 2000 order vitiated the Secretary\'s concession and the
agreement of the parties with regard to the shoulder claim.

Similarly, in the February 21, 2001, order that granted the Secretary\'s
ensuing motion to vacate the Board\'s decision as to all claims, the
Court again noted that the Secretary had conceded error and agreed to a
remand of the shoulder claim:

> The appellant filed a brief on March 27, 2000, stating that the
> parties had agreed to a remand of the shoulder claim and arguing for a
> remand of the back and knee claims. On September 28, 2000, the
> Secretary filed a motion in lieu of a brief urging the Court to remand
> the shoulder claim but to affirm the Board\'s decision in all other
> respects.

Remand Order at \*1.

Under the circumstances presented by this case, where the Secretary had
indeed acknowledged error and agreed to a remand of the appellant\'s
shoulder claim, the appellant is correct that the plain language of
*Sumner* compels the conclusion that the appellant was a prevailing
party with regard to that claim. Finding that all other elements of an
EAJA claim were satisfied, I would grant the application and award
attorney fees commensurate with the efforts expended on that claim.

In order to deny the application, the majority interprets--actually,
rewrites--*Sumner* to hold that \"the appellant could be said to be a
prevailing party under *Sumner* only if the Court\'s February 2001 order
can fairly be read as having granted, in whole or in part, the
Secretary\'s September 2000 motion confessing error as to the shoulder
claim.\" *Ante*, at 8. The majority\'s labored and unwarranted attempt
to complicate the simplicity of the holding of *Sumner* is unpersuasive
and I cannot join in its \"only if\" conclusion; nor can I support Judge
Greene\'s mere dismissal of Chief Judge Kramer\'s language for the en
banc Court in *Sumner* as \"inartful.\" *Ante*, at 13. I do not believe
that the Court could or should disregard the concession of error by the
Secretary and the agreement of the parties in the record of this case
and therefore I respectfully dissent.