NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

NATHAN C. BROWN,

Claimant-Appellant,

v.

ROBERT A. MCDONALD, 

Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2014-7016

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 12-3535, Judge Alan G. Lance, Sr.

______________________ 

Decided: November 18, 2014

______________________ 

JOHN F. CAMERON, of Montgomery, Alabama, argued 

for claimant-appellant. 

ZACHARY J. SULLIVAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were STUART F. DELERY,

Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,

Director, and SCOTT D. AUSTIN, Assistant Director. Of 

counsel on the brief were Y. KEN LEE, Deputy Assistant 
2 BROWN v. MCDONALD

General Counsel, and BRIAN D. GRIFFIN, Attorney, United 

States Department of Veterans Affairs, of Washington, 

DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assistant General Counsel. 

______________________ 

Before WALLACH, CHEN, and HUGHES, Circuit Judges.

Opinion for the court filed by Circuit Judge HUGHES.

Concurring Opinion filed by Circuit Judge WALLACH. 

HUGHES, Circuit Judge.

Nathan Brown petitioned the Court of Appeals for 

Veterans Claims to order the Department of Veterans 

Affairs to issue a rating decision on his claims for veteran 

benefits. During the proceedings, the Veterans Court

ordered the agency to provide a status update on Mr. 

Brown’s case. The agency then mailed Mr. Brown notice 

of its prior rating decision granting him benefits and 

notified the court that Mr. Brown’s claim had been granted. Mr. Brown argues that this makes him a prevailing 

party under the Equal Access to Justice Act, 28 U.S.C. 

§ 2412. But the Supreme Court has held that the government’s voluntary change in conduct, even if it accomplishes the object of a lawsuit, does not confer prevailingparty status on the plaintiff. Accordingly, we affirm the 

Veterans Court’s holding that Mr. Brown is not a prevailing party under § 2412. 

I 

Mr. Brown served in the Navy between September 

1972 and December 1973. In 2001, Mr. Brown filed a 

claim to establish service connection for schizoaffective 

disorder. Following two appeals to the Veterans Court

and two joint motions for remand, the Board of Veterans’ 

Appeals ordered that a new compensation and pension 

examination be performed. A March 2012 report from the 

ordered examination states that Mr. Brown’s schizoaffec-
 BROWN v. MCDONALD 3

tive disorder was as likely as not a result of his military 

service, and that it caused him total occupational and 

social impairment. 

Between March and October 2012, Mr. Brown requested seven times that a regional office issue a rating 

decision on his claim. On October 9, 2012, the regional 

office sent a letter to Mr. Brown with a copy of the March 

2012 examination report. The letter, however, did not 

include a rating decision.

On December 5, 2012, Mr. Brown filed a petition for 

writ of mandamus in the Veterans Court to compel the 

regional office to issue a rating decision and to provide 

him with any new evidence obtained by the regional

office. On December 7, 2012, the Veterans Court ordered 

the Secretary of Veterans Affairs to “respond with information about the status of the petitioner’s claim.” J.A. 

264. Four days later, the regional office mailed 

Mr. Brown notice of its earlier October 17, 2012 rating 

decision granting service connection and disability ratings 

for his schizoaffective disorder. Then, in response to the 

Veterans Court’s order, the Secretary informed the court 

that the rating decision had issued and that no new 

evidence had been obtained. On January 17, 2013, the 

Veterans Court dismissed Mr. Brown’s petition as moot 

because he had obtained the requested relief.

In May 2013, Mr. Brown filed a fee application under 

the Equal Access to Justice Act, 28 U.S.C. § 2412, for the 

recovery of fees and expenses incurred in filing his December 5, 2012 petition. Concluding that Mr. Brown was 

not a “prevailing party” for the purposes of an EAJA 

claim, the Veterans Court denied the application. 

Mr. Brown appeals. We have jurisdiction under 38 U.S.C. 

§ 7292.
4 BROWN v. MCDONALD

II

Our jurisdiction over appeals from the Veterans Court 

is limited by statute. Although we may not review “a 

challenge to a law or regulation as applied to the facts of a 

particular case” in the Veterans Court, 38 U.S.C. 

§ 7292(d)(2)(B), we review the Veterans Court’s interpretation of EAJA de novo. Vaughn v. Principi, 336 F.3d 

1351, 1354 (Fed. Cir. 2003). 

Under EAJA, a court awards a “prevailing party” fees 

and expenses incurred in any civil action or judicial 

review of agency action brought against the United 

States, unless the position of the United States was 

substantially justified or special circumstances make an 

award unjust. 28 U.S.C. § 2412(d)(1)(A). To establish 

that it is a “prevailing party,” an EAJA applicant “must 

show that it obtained an enforceable judgment on the 

merits or a court-ordered consent decree that materially 

altered the legal relationship between the parties, or the 

equivalent of either of those.” Rice Servs., Ltd. v. United 

States, 405 F.3d 1017, 1025 (Fed. Cir. 2005). 

But the Supreme Court has held that “[a] defendant’s 

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit,” cannot confer prevailing party status on a plaintiff. 

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of 

Health & Human Res., 532 U.S. 598, 605 (2001). Analyzing fee shifting statutes similar to EAJA, the Court explained that a voluntary change “lacks the necessary 

judicial imprimatur on the change.” Id. We have since

applied Buckhannon and interpreted EAJA as excluding 

applications for fees and expenses based on this “catalyst” 

theory. See Vaughn, 336 F.3d at 1355–56; Brickwood 

Contractors, Inc. v. United States, 288 F.3d 1371, 1376 

(Fed. Cir. 2002). 

Mr. Brown argues that he is a prevailing party by virtue of the Veterans Court’s December 7, 2012 order be-
 BROWN v. MCDONALD 5

cause he received some relief as a result of the order. 

Appellant’s Br. 25. The Veterans Court disagreed, holding that Mr. Brown’s prevailing party argument relies on

the catalyst theory. We agree with the Veterans Court.

Mr. Brown’s petition for a writ of mandamus requested the issuance of a rating decision and copies of any new 

evidence obtained by the regional office. The Veterans 

Court’s December 7, 2012 order was not on the merits and 

did not compel the agency to issue a decision. Instead, it 

required the Secretary to “respond with information about 

the status of the petitioner’s claim.” J.A. 264. Following 

the order, the regional office voluntarily mailed its rating 

decision to Mr. Brown. The Secretary then notified the 

Veterans Court that it had made a rating decision and 

that no new evidence had been obtained.

Although Mr. Brown achieved his desired results, 

those results occurred through the voluntary conduct of 

the regional office and the Secretary. They did not occur 

because of an enforceable judgment on the merits or a 

court-ordered consent decree. Such circumstances do not 

fall within the meaning of “prevailing party” in 28 U.S.C. 

§ 2412(d)(1)(A). Vaughn, 336 F.3d at 1355–56. 

Moreover, even if we assume that the issuance of the 

rating decision was a direct result of the Veterans Court’s 

order requiring a status report, that is simply a restatement of the catalyst theory and insufficient to confer 

prevailing party status. We rejected a similar theory in 

Brickwood, 288 F.3d 1371, where the government allegedly changed its position as a result of preliminary oral 

comments from the court that were not embodied in a 

court order. There, we held that the lack of an enforceable judgment on the merits or a consent decree precluded 

prevailing party status. Id. at 1379–80. Similarly, here, 

a preliminary order requiring a status report fails to 

establish that Mr. Brown was a prevailing party. 
6 BROWN v. MCDONALD

We have considered Mr. Brown’s other arguments and 

find them without merit. To the extent that Mr. Brown 

asks us to review the application of EAJA to the particular facts of his case, we lack jurisdiction to do so. See id.

at 1354. 

III

Because the Veterans Court correctly construed 28 

U.S.C. § 2412(d)(1)(A), we affirm.

AFFIRMED

No costs.
NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

NATHAN C. BROWN,

Claimant-Appellant,

v.

ROBERT A. MCDONALD, 

Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2014-7016

______________________ 

WALLACH, Circuit Judge, concurring. 

I concur although when the Department of Veterans 

Affairs’ level of incompetency rises to a level approaching

actual malevolence, at some point legal action to obtain 

redress should require EAJA compensation.