United States Court of Appeals 

for the Federal Circuit ______________________ 

DELLEW CORPORATION,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

TECH SYSTEMS, INC.,

Defendant

______________________ 

2016-2304

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:15-cv-00808-MMS, Judge Margaret M. 

Sweeney. 

______________________ 

Decided: May 1, 2017

______________________ 

ADAM K. LASKY, Oles Morrison Rinker & Baker LLP, 

Seattle, WA, argued for plaintiff-appellee. Also represented by SHAUN CHRISTOPHER KENNEDY. 

ERIN MURDOCK-PARK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellant. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER. 
2 DELLEW CORP. v. UNITED STATES

______________________ 

Before LOURIE, REYNA, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge. 

Appellant United States (“the Government”) appeals 

the opinion and order of the U.S. Court of Federal Claims 

awarding attorney fees and costs to Appellee Dellew 

Corporation (“Dellew”) pursuant to the Equal Access to 

Justice Act (“the EAJA”), 28 U.S.C. § 2412(a), (d)(1)(A) 

(2012). The central question here is whether comments 

that the Court of Federal Claims made during a hearing 

and prior to the Government taking corrective action 

materially altered the relationship between the parties 

such that Dellew qualified as a “prevailing party” under 

the EAJA. The Court of Federal Claims found its comments sufficient to confer prevailing party status on 

Dellew. See Dellew Corp. v. United States (Dellew II), 127 

Fed. Cl. 85, 89–95 (2016). We reverse because a strong 

comment by a trial court is not tantamount to a ruling on 

the merits or a court order. 

BACKGROUND

The parties do not dispute the facts material to the 

instant appeal. The U.S. Department of the Army (“the 

Army”) awarded a contract to Tech Systems, Inc. (“TSI”) 

for “logistics support services” at the Schofield Barracks 

in Hawai’i. Id. at 87 (citation omitted). Dellew filed a 

post-award bid protest against the Government in the 

Court of Federal Claims, alleging that the Army improperly awarded TSI a contract because (1) TSI did not 

accept a material term of the request for proposals when 

it refused to cap its proposed general and administrative 

rate, and (2) the contract awarded varied materially from 

TSI’s proposal. J.A. 53–56. Dellew also argued that the 
DELLEW CORP. v. UNITED STATES 3

Army failed to perform an adequate cost realism analysis

before awarding the contract to TSI.1 J.A. 56–57.

After the Government filed the administrative record 

and the parties briefed the merits, the Court of Federal 

Claims held oral argument. Dellew II, 127 Fed. Cl. at 87. 

During oral argument, the Court of Federal Claims provided “hint[s]” about its views favorable to Dellew on the 

merits, J.A. 65; see J.A. 70–71 (discussing cost realism), 

79 (discussing the general and administrative rate), 112–

13 (discussing change in material terms), and stated that 

it had drafted an opinion, J.A. 143–44. The Court of 

Federal Claims also repeatedly expressed its belief that 

corrective action would be appropriate.2 J.A. 126 (“I also 

would strongly suggest to the Army that they think about 

taking corrective action . . . .”), 128 (“[A] corrective action 

should be taken in this case . . . .”), 137 (similar), 139 

(similar), 145–46 (similar). Indeed, the Court of Federal 

 

1 A cost realism analysis requires the Government 

to

independently review[] and evaluat[e] specific elements of each offeror’s proposed cost estimate to 

determine whether the estimated proposed cost 

elements are realistic for the work to be performed; reflect a clear understanding of the requirements; and are consistent with the unique 

methods of performance and materials described 

in the offeror’s technical proposal. 

48 C.F.R. § 15.404-1(d)(1) (2015).

2 Although not defined by statute or regulation, 

“corrective action” in the bid protest context generally 

means “agency action, usually taken after a protest has 

been initiated, to correct a perceived prior error in the 

procurement process, or, in the absence of error, to act to 

improve the competitive process.” Appellant’s Br. 2 n.1.
4 DELLEW CORP. v. UNITED STATES

Claims encouraged the Army to “tak[e] corrective action 

now” so that it could avoid issuing “a needless ruling.” 

J.A. 126. The Court of Federal Claims set a schedule for 

the parties to provide a joint status report approximately 

ten days after the hearing, J.A. 152, 156–57, and explicitly agreed not to issue a decision until it received the 

report, J.A. 153. The Court of Federal Claims also left 

open the possibility of additional briefing. J.A. 68–69, 

126. 

In the Joint Status Report, the Government announced that the Army had determined that certain 

changes in conditions had occurred, resulting in a decrease in the contract value and requiring an amendment 

to the solicitation. J.A. 163. As a result of these changed 

conditions, “as well as the discussions held at oral argument . . . , the Army determined to take corrective action.” 

J.A. 163. The Army subsequently terminated the contract 

with TSI, and the Government filed a motion to dismiss 

Dellew’s protest as moot in light of the corrective action.

The Court of Federal Claims granted the Motion and 

dismissed Dellew’s action. Dellew Corp. v. United States 

(Dellew I), 124 Fed. Cl. 429, 432–33 (2015). In dismissing 

the action, the Court of Federal Claims declined Dellew’s 

invitation to “issue findings of fact and conclusions of law 

that [Dellew] is a ‘prevailing party’” because doing so 

would require the Court of Federal Claims to “issue an 

advisory opinion.” Id. at 432 n.2. Notwithstanding 

mootness, the Court of Federal Claims determined that it 

retained jurisdiction over the action. Id. at 432. 

Dellew subsequently sought attorney fees and costs 

from the Government under the EAJA, and the Court of 

Federal Claims awarded Dellew a total of $79,456.76 in 

fees and costs. See Dellew II, 127 Fed. Cl. at 101. Relevant here, the Court of Federal Claims held that it made 

“numerous substantive comments during oral argument 

regarding the merits,” id. at 92, that “carried a sufficient 
DELLEW CORP. v. UNITED STATES 5

judicial imprimatur to materially alter the relationship 

between [Dellew] and [the Government] such that 

[Dellew] qualifies as a prevailing party under the EAJA,” 

id. at 89. After surveying the relevant authorities, id. at 

89–92, the Court of Federal Claims articulated four 

grounds for its decision, id. at 92–94. First, it explained 

that, at oral argument, it “clearly stated its view that” the 

Government would lose on the merits and “that it therefore intended to rule in Dellew’s favor with respect to th[e] 

issue[s].” Id. at 92. Second, it stated that it “made clear 

its view that the Army should take corrective action.” Id. 

at 93. Third, it determined that the Army’s corrective 

action was not voluntary. Id. at 94. Finally, it explained 

that its comments were made after the parties briefed the 

case and after it had drafted (though not issued) a written 

decision. Id. Taken together, the Court of Federal Claims 

held that the Government knew “how it intended to rule” 

and, thus, found it appropriate to confer prevailing party 

status on Dellew. Id. at 92.

The instant appeal followed. We possess subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

I. Standard of Review

We generally review the award of attorney fees and 

costs under the EAJA for an abuse of discretion. See Int’l 

Custom Prods., Inc. v. United States, 843 F.3d 1355, 1358 

(Fed. Cir. 2016). However, “[t]he question of whether a 

party qualifies as a ‘prevailing party’ under the EAJA is a 

question of law” that we “review de novo.” Rice Servs., 

Ltd. v. United States, 405 F.3d 1017, 1021 (Fed. Cir. 2005) 

(citation omitted).
6 DELLEW CORP. v. UNITED STATES

II. The Court of Federal Claims Improperly Awarded 

Attorney Fees and Costs to Dellew Under the EAJA

A. Legal Framework

“In the United States, parties are ordinarily required 

to bear their own attorney[] fees—the prevailing party is 

not entitled to collect from the loser.” Buckhannon Bd. & 

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 

532 U.S. 598, 602 (2001). Described as the “American 

Rule,” that practice proscribes an award of attorney fees 

unless otherwise provided by statute. Id. Absent a 

waiver of sovereign immunity, a party may not recover 

attorney fees in suits against the Government. See Chiu 

v. United States, 948 F.2d 711, 714 (Fed. Cir. 1991). 

The EAJA waives the sovereign immunity of the 

United States to enable certain parties to seek attorney 

fees and costs against the Government under certain 

circumstances. See Fidelity Constr. Co. v. United States, 

700 F.2d 1379, 1385–86 (Fed. Cir. 1983). The EAJA 

provides that

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) (emphasis added). The appeal 

hinges on whether Dellew meets the definition of “prevailing party” under the EAJA.

Neither a statute nor a regulation defines “prevailing 

party” for EAJA purposes. However, the Supreme Court

has held that “prevailing party,” as used in other statutes, 

means a party that obtains a “material alteration of the 

legal relationship of the parties.” Buckhannon, 532 U.S. 

at 604 (internal quotation marks and citation omitted). 
DELLEW CORP. v. UNITED STATES 7

The Supreme Court also explained that the change in the 

parties’ legal relationship must have a certain “judicial 

imprimatur,” id. at 605, such as an “enforceable judgment[] on the merits” or a “court-ordered consent decree[],” id. at 604 (citation omitted). It further held that a 

prevailing party does not include a party who obtained 

relief through “a defendant’s voluntary change in conduct.” Id. at 605. We extended these principles to the 

EAJA, see Brickwood Contractors, Inc. v. United States, 

288 F.3d 1371, 1377–79 (Fed. Cir. 2002), and later explained that the Buckhannon “threshold can also be met 

by other court action ‘equivalent’ to a judgment on the 

merits or a court-ordered consent decree,” as long as “it 

carries sufficient judicial imprimatur to materially change 

the legal relationship of the parties,” Rice, 405 F.3d at 

1026. 

B. Dellew Is Not a Prevailing Party Under the EAJA

The Government contends that the Court of Federal 

Claims committed three errors in determining that

Dellew qualifies as a prevailing party under the EAJA. 

See Appellant’s Br. 16–29. We agree with each of the 

Government’s arguments and address them in turn.

1. The Government Voluntarily Took Corrective Action

The first argument concerns the nature of the Government’s corrective action. The Court of Federal Claims 

held that “the Army did not voluntarily decide to take 

corrective action” because “[i]t only did so following . . . 

the [G]overnment’s realization that the court was not 

swayed by its argument” and otherwise “understood how 

the court intended to rule.” Dellew II, 127 Fed. Cl. at 94, 

95. The Government argues that, “[b]ecause the Army 

acted without any corresponding court order requiring 

such action,” the Army voluntarily took corrective action 

such that the Court of Federal Claims could not have 

made the requisite change in the legal relationship between the parties. Appellant’s Br. 17; see id. at 17–19.
8 DELLEW CORP. v. UNITED STATES

Precedent firmly weighs in the Government’s favor. It 

is undisputed here that the Government took corrective 

action before the Court of Federal Claims issued a written 

or oral ruling on the merits. See Dellew II, 127 Fed. Cl. at 

92 (“In the case at bar, the court did not issue a written 

opinion on the merits. Nor did the court issue a consent 

decree based on an agreement between the parties. The 

court did, however, make numerous substantive comments during oral argument regarding the merits of the 

case and how it intended to rule . . . .” (emphases added)). 

Irrespective of the Court of Federal Claims’s expectations 

about a future ruling or its impressions as to the Government’s motivation for taking the corrective action, an 

agency acts voluntarily if it takes corrective action before 

the Court of Federal Claims provides a written or oral 

ruling on the merits that changes the parties’ legal relationship. See Rice, 405 F.3d at 1027 (explaining that an 

agency acts “voluntarily” if it undertakes “remedial action 

before any rulings by the Court of Federal Claims”). 

Voluntary action cannot provide a sufficient basis for a 

court to confer prevailing status on a party. 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.”). To hold otherwise would reanimate the catalyst theory that the 

Supreme Court rejected in Buckhannon. See id. at 601, 

605 (explaining that the “catalyst theory . . . posits that a 

plaintiff is a ‘prevailing party’ if it achieves the desired 

result because the lawsuit brought about a voluntary 

change in the defendant’s conduct” and rejecting that 

theory as inconsistent with precedent). 

2. The Court of Federal Claims’s Comments Lacked 

Sufficient Judicial Imprimatur to Materially Change the 

Legal Relationship of the Parties

The second argument concerns the substance of the 

comments that the Court of Federal Claims made during 
DELLEW CORP. v. UNITED STATES 9

the hearing. Because it stated its intent “to rule in 

Dellew’s favor” and emphasized that “the Army should 

take corrective action,” the Court of Federal Claims 

determined that its comments carried a sufficient judicial 

imprimatur to change the parties’ legal relationship. 

Dellew II, 127 Fed. Cl. at 92, 93; see id. at 92–94. The 

Government argues that the Court of Federal Claims’s 

comments did not carry a sufficient judicial imprimatur to 

materially change the legal relationship of the parties

because they did not constitute “court-ordered relief.” 

Appellant’s Br. 19 (capitalization omitted); see id. at 19–

22. Without the requisite imprimatur, the Government 

alleges that Dellew does not constitute a prevailing party 

under the EAJA. See id. at 19–22.

Our decision in Brickwood firmly resolves this aspect 

of the prevailing party question. There, we determined 

that comments about the merits made by the Court of 

Federal Claims during a hearing did not constitute sufficient grounds upon which to confer prevailing party 

status pursuant to the EAJA. See 288 F.3d at 1380–81. 

Absent an “oral judgment,” id. at 1381, we held that “the 

cited comments are clearly not sufficient to establish a 

judicial imprimatur and they do not constitute a ‘courtordered change in the legal relationship’ of the parties as 

Buckhannon requires,” id. at 1380. Here, the Court of 

Federal Claims at most described how it “intended” to 

rule. Dellew II, 127 Fed. Cl. at 92. Indeed, the Court of 

Federal Claims encouraged, but did not require, the Army 

to take particular action. See, e.g., J.A. 126 (“I also would 

strongly suggest to the Army that they think about taking 

corrective action . . . .”); see also J.A. 145, 147 (using “if” 

and “when” to describe the scope of any potential Army 

corrective action). Moreover, the Court of Federal Claims 

offered the Government an opportunity for further briefing, leaving open how the case would proceed, and it 

explicitly postponed a ruling pending receipt of the Joint 

Status Report. See, e.g., J.A. 68–69, 150, 153. The Court 
10 DELLEW CORP. v. UNITED STATES

of Federal Claims’s comments as a whole demonstrate 

that it did not require the Government to act in any 

manner; instead, it offered the Government an opportunity to take whatever corrective action it believed might be 

appropriate. Without more, the Court of Federal Claims’s 

comments did not carry a sufficient judicial imprimatur to 

change the legal relationship between the parties.

Apart from conflicting with precedent, the Court of 

Federal Claims adopted an unworkable standard that 

equates a non-binding oral comment with a ruling. The 

Court of Federal Claims knows how to rule orally when 

the circumstances so require. See, e.g., Orion Tech., Inc. 

v. United States, 101 Fed. Cl. 492, 493 (2011) (stating that 

its decision “explains in more detail the oral rulings made 

by the court” in a prior hearing). In the absence of an oral 

ruling, experience teaches us that comments made from 

the bench do not always match the content of a later 

written opinion. For that reason, unless the issue on 

appeal concerns an oral ruling, we generally “rely on the 

court’s written opinion rather than its oral statement 

during a hearing.” Galen Med. Assocs., Inc. v. United 

States, 369 F.3d 1324, 1331 (Fed. Cir. 2004). To hold 

otherwise would require parties to divine the presiding 

court’s actual holding from the often messy entrails of 

spontaneous comments. That kind of divination has no 

support in a legal system which values predictability as a 

pillar of the rule of law.

3. The Court of Federal Claims Failed to Follow Relevant 

Precedent

The final argument concerns the legal authority relied 

upon by the Court of Federal Claims. Throughout its 

decision, the Court of Federal Claims relied substantially 

upon its decision in Universal Fidelity LP v. United 

States, 70 Fed. Cl. 310 (2006). See Dellew II, 127 Fed. Cl. 

at 91–92, 94–95. In Universal Fidelity, the Court of 

Federal Claims held that a preliminary order intending to 
DELLEW CORP. v. UNITED STATES 11

enjoin a solicitation carried a sufficient judicial imprimatur to materially change the parties’ legal relationship 

and, thus, to confer prevailing party status on the plaintiff. See 70 Fed. Cl. at 314–16. The Government avers 

that the Court of Federal Claims improperly relied upon

Universal Fidelity and failed to follow our binding precedent. See Appellant’s Br. 22–26. 

The Court of Federal Claims erred in relying upon 

Universal Fidelity for two reasons. First, the Court of 

Federal Claims gave greater weight to Universal Fidelity

than Buckhannon, Rice, and Brickwood. See Dellew II, 

127 Fed. Cl. at 94–95 (“[T]he court concludes that there is 

good cause to extend the holding in Universal Fidelity [], 

which dealt with a written order, to the oral comments 

made in this case. In both cases: (1) the matter was fully 

briefed at the time the statements were made, (2) the 

court arrived at legal conclusions after considering the 

merits of the parties’ positions, (3) the parties were made 

aware of those legal conclusions, and (4) defendant took 

corrective action after having been made aware of the 

court’s position.”). We reaffirm a well-known principle 

that the Court of Federal Claims failed to follow here: the 

Court of Federal Claims must follow relevant decisions of 

the Supreme Court and the Federal Circuit, not the other 

way around.3 See Coltec Indus., Inc. v. United States, 454 

F.3d 1340, 1353 (Fed. Cir. 2006) (“There can be no question that the Court of Federal Claims is required to follow 

 

3 Of course, if precedent from the Supreme Court 

and our court does not answer the particular question 

presented, the Court of Federal Claims may rely upon its 

own decisions. Even then, “Court of Federal Claims 

decisions, while persuasive, do not set binding precedent 

for separate and distinct cases in that court.” W. Coast 

Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) 

(citations omitted).
12 DELLEW CORP. v. UNITED STATES

the precedent of the Supreme Court, our court, and our 

predecessor court, the Court of Claims.” (citation omitted)). Second, even if it had the same authoritative 

weight as decisions of superior courts, Universal Fidelity 

is distinguishable. Unlike here, the Court of Federal 

Claims in Universal Fidelity reduced its views of the 

merits to an order. See 70 Fed. Cl. at 311. For these 

reasons, the Court of Federal Claims improperly relied 

upon Universal Fidelity to find that Dellew qualified as a 

prevailing party under the EAJA.4

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. Accordingly, the Opinion 

and Order of the U.S. Court of Federal Claims awarding 

attorney fees and costs to Dellew under the EAJA is

REVERSED

COSTS

Costs to the Government.

 

4 Throughout its response brief, Dellew argues that 

the court should follow, inter alia, the Seventh Circuit’s 

decision in Palmetto Properties, Inc. v. County of DuPage. 

See Appellee’s Br. 18–55 (discussing 375 F.3d 542 (7th 

Cir. 2004)). The Seventh Circuit’s decision does not 

control here because our decisions in Rice and Brickwood 

are dispositive, and we must follow them. See Deckers 

Corp. v. United States, 752 F.3d 949, 959 (Fed. Cir. 2014) 

(“[A] later panel is bound by the determinations of a prior 

panel, unless relieved of that obligation by an en banc 

order of the court or a decision of the Supreme Court.”).