## United States Court of Appeals for the Federal Circuit

04-5069

RICE SERVICES, LTD., Plaintiff-Appellee,

v.
UNITED STATES, Defendant-Appellant.

Keith L. Baker , Barton, Baker, McMahon, Hildebr ant & Tolle, LLP, of McLean, Virginia, argued for plaintiff-appell ee. With him on the brief was William T. Welch

. Richard P. Schroeder , Trial Attorney, Commercial Litigation Branch, Civil Division, United States D epartment of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Franklin E. White, Jr. , Assistant Director. Of counsel was Paul W. Knoth , Attorney, Office of the Gener al Counsel, United States Department of the Navy, of Washington, DC. Appealed from: United States Court of Federal Claims Senior Judge James F. Merow

## United States Court of Appeals for the Federal Circuit

04-5069 RICE SERVICES, LTD., Plaintiff-Appellee,

v. UNITED STATES, Defendant-Appellant.

__________________________ DECIDED: April 27, 2005

__________________________ Before SCHALL, DYK, and PROST, Circuit Judges

. Opinion for the court filed by Circuit Judge SCHALL. Concurring opinion filed by Circuit Judge DYK. SCHALL, Circuit Judge

. This is an appeal of a judgm ent awarding attorney’s fe es under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. 1 The case stems from a bid-protest action brought by Rice Services, Ltd. (“Rice”) ag ainst the Department of the Navy (“Navy”) challenging the award of a contract for dining services. Rice filed the bid-protest action in the Court of Federal Claims on May 9, 2002, asking for, among other things, a reevaluation of the bids pursuant to the terms of the solicitation. The parties filed crossmotions for summary judgment on the admin istrative record. In addition, the

1 Unless otherwise indicated, refer ences are to the 2000 version of the United States Code.government filed a motion to dis m iss the ca se for mootness due t o the Navy’s voluntary and unilateral dec ision to reevaluate the bids . The Court of Federa l Claims granted the government’s motion t o dism iss and cons equently d e nied the two pend ing motions for judgment on the administrative record. Ric e Servs., Ltd. v. United States , No. 02-468 C (Fed. Cl. Sept. 26, 2002) (“ Dismissal Order ”). Subsequently, having received the relief re q uested in it s complaint, Rice filed an application for attorney’s fees under the EA JA. The Court of Federal Cla im s granted Rice’s application and awarded Rice $3 1,709.38 in attorney’s fees. Rice S e rvs., Ltd. v. United States , No. 02-468 C (Fed. Cl. July 29, 2003) (“ EAJA Order ”). After the court denied the government’s motion for reconsideration of the award, Rice Servs., Ltd. v. United States , 59 Fed. Cl. 619 (2004) (“ Reconsideration ”), the government appea led. The spec ific issue on appeal is whether the Court of Federal Claims erred in finding Rice a “prevailing party” under the EAJA. Becaus e we find the court did err, we

reverse. BACKGROUND
I. This case arises out of a procurement by the Navy for wardroom dining ser v ices at the U.S. Naval Academ y in Annapolis, Maryland. Dismissal Order , slip op. at 1. The Navy awar ded the dining servic es contract to EC Management Services of Maryland, LLC (“EC”) in December of 2001. Id. The term of the cont ract was from January 1, 2002, through Septem ber 30, 200 2, but under the contract, the Navy could award option years upon sixty days prior notice. Id. On December 28, 2001, Rice filed an agency04-5069 2level protest with the Navy c ontesting the award to EC. Id. The Navy denied Ric e’s protest on January 29, 2002. On May 9, 2002, Ric e filed this action in the Court of F ederal Claims. Rice requested the following relief: (1) a declarati on that the award to EC was unlawful; (2) an injunction ordering a new award pursuant to the terms of the solicitation; (3) an order enjoining extension of the contract beyond its base period; and ( 4 ) an order enjoining any new award to EC. (Compl. ¶ 1.) The administrative record was filed in the Court of Federal Claims on June 10, 200 2, and the parties cross-moved for summary judgment on it shortly thereafter. Dismissa l Order , slip op. at 2. In addi tion, the government filed a motion to dismiss the lawsuit on the ground t hat the case was moot due to the Navy’s unilateral and voluntar y decision to conduct a new contract solicitation. Id. On July 18, 2002, as promised in the gov ernment’s motion to dis m iss, the Navy issued notices to eac h of t he s i x original offerors, info rming them that the Navy had decided to open discussions regarding the solic itation and asking each offeror if it was interested in participating. Id. All six offerors indicated they were interested in the proposal. Id. The Navy and offerors subsequently established a sc hedule for discussions, submission of new offers, oral presentat ions, and a reevaluation. Id. The schedule stated that a new award would be made by November 20, 2002. Id. I n v i e w of the new solic itation, the Navy stated that it would not exercise the option under the
current con t ract with E C

. 2 Id.

2 The Navy did, however, reserve t he ri ght to exercise the contract’s continuity of servi c e clause in order to obtain necessary services pending commencement of the new award in November. Dismissal Order , slip op. at 2.

04-5069 3On September 26, 2002, the Court of Federal Claims granted the governm ent’s motion to dismiss and denied all other pendi ng motions. Id. slip op. at 3. The cour t found that the case had become “essentially moot” because [t]he relief requested by [Ric e] has, substantially , been voluntarily afforded by the Na vy. The original offerors, including [Rice] are voluntar ily participating in the ne w submissions. The c o ntract te rm awarded to [EC] expires on September 30, 2002. No option year will be awarded. New best and final offers for the wardroom dining service at issue will be obtained and a new aw ard decis ion will be made by the Navy. Id. slip op. at 2. 3 The court concluded: In this circumstance, . . . fu rt her action by the Court is not required or justifi ed . . . and it is ORDE RED that: (1) The remedial action described and promised in defendant’s submissions shall be undertaken; (2) Accordingly, all outstanding motions are, otherwise, DENIE D , without prejudice to any reassertion of the arguments therein wh ic h may be made in any subsequent protest action addressed to the remedial action underway; (3) Plaintiff’s complaint shall be DISMISSED , without prejudice to the assertio n of any new protest action addressed to the remedial action in progress. Id. slip op. at 3 (emphases in original).

3 A case is moot “when the issues pr esented are no longer ‘liv e’ or the parties lac k a legally cognizabl e interest in the outcome.” Powell v. McCormack , 395 U.S. 486, 496 (1969) . The Supreme Court has stated a two-part test for determining whether a case has been render ed moot. A case is rendered m oot if (1) “it can be sa id with assur ance that t here is no reasonable expectation that the alleged violation will recur;” and (2) “interi m relief or events hav e completely and irrev o cably eradicated the effects of the alleged violation.” County of Los Angeles v. Dav i s , 440 U.S. 625, 631 (1975) (citations omitted).

04-5069 4II. On December 17, 2002, Rice filed an appli cation for attorney’s fees under the EAJA. EAJA Order , slip op. at 2. The EAJA is a fee-shifting statut e, which, under appropriate circumstances, allows a party who pr evails in litigation against the government to recover attorney’s fees and litig ation c o sts. 28 U

. S

. C

. § 2412. The statute states, in relev ant part, that “a cour t shall award to a prev ailing 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 subst antially justified or that s pecial circumstances make an award unjust.” Id. § 2412(d)(1)(A). The government opposed the fee applic ati on on the ground that Rice was not a “prevailin g party” under the Supreme Court’s decisio n in Buckhannon Board & Care Home, Inc. v. West Virginia Dep a rt ment of Health & Human Res ources , 532 U.S. 598 (2001), and this court’s decision in Brickwood Contractors, Inc. v. United States , 288 F.3d 1371 (Fed. Cir. 2002). EAJA Order , slip op. at 2. T he government argued that Rice did not qualify as a prevailing party under Buckhannon because the remedial action taken by the Navy was not the result of a court order but, rather, the result of a unilateral and voluntary decis ion by the Nav y

. Id. In response, Rice argue d that it wa s a prevailing party because the Dismissal Or der of S eptember 26, 2002, “affirmatively ordered the Navy to act” in carrying- out its promised remedial action. Id. The Court of Federal Claims grant ed Rice’s applic ati on and awarded Ric e $31,709.38 in attorney’s fees. Id. slip op. at 2-3. The court reasoned that the facts of this case were equivalent to thos e of Former Employees of Motorola Ceramic Products

04-5069 5v. United States , 336 F.3d 1360 (Fed. Cir. 2003), wher e this court held that a court order remanding a c a se to an agency consti tutes “success on the merits” when the court did not retain juri sdiction on remand. EAJA Order , slip op. at 2 (“The circumstances presented in th is matter are equivalent to t he situation where the parties consent to a remand order for agency corr ecti ve action and where the cour t does not retain jurisdiction while the further agency ac tion is undertaken.”) Therefore, the court held, Rice was a prevailing party and entit led to the claimed attorney’s fees. The government subsequently filed a motion for reconsideration of the attorney’s fee award. The gov ernment again argued t hat Rice did not “prevail” in its lawsuit because the trial court only dismissed t he claim after the Navy had undertaken voluntary remedial ac tion to reopen the s o licitation. Recons ider ation , 59 F e d. Cl. at 620. Therefore, according to the governmen t, it was not a court order but the Navy’s voluntary actions that gave Rice its request ed relief. T he government also argued that this court’s decis ion in Brickwood , 288 F.3d at 1380, held that under Buck hannon the only types of court action that confer prevailing party stat us are enforceable judgments on the merits and court-ordered c onsent decrees, neither of whic h were present in this

case. Rec onsideration , 59 Fed. Cl. at 621. The Court of Federal Claim s denied the m o tion for re consideration on January 13, 2004. The court recogniz ed that Buckhannon rejected the “catalyst theory” for fee awards based on a voluntary change in a defendant’s conduct. Id. Rather, in order to be a “prevailing party” after Buc k hannon , the court stated, one must “receive at least some relief on the merits,” w h ich “alter s the legal relationship of the parties.” Id. (quoting Buckhannon , 532 U.S. at 603). Contrary to the government’s contention,

04-5069 6however, t he court held that Federal Circuit prec edent did not limit “prevailing party” status under Buckhannon to m e rit-based decisions or court-ordered cons ent decrees. Id. The court indicated t hat the key question after Buckhannon is whether there was a court order carrying s u fficient judicial imprim at ur to materially alter the legal relations hip of the parti es. See id. at 622. In this case, the Court of Federal Claims held that the Dismi ssa l Order “not only impressed defendant’s curative e fforts with the imprimatur of this court, but also altered the legal relationship between the parties.” Id. This was becaus e the “Order requiring defendant to comply with its promised action created independent rights and obligations. ” Id. at 623. Furthermore, the court f ound that Rice did obtain “ s ome relief on the merits” from the Dismiss al Order. Th is was because Rice’s complaint asked the court to order a new evaluati on and to enjoin the Navy from exercising the option und e r the award to EC, and this was the relief Ric e actually receive d from the Dismissa l Order. Id. The court also reiterated that “the [dismissal] action taken was equivalent t o a remand to the Navy for re-solicitation of the procurement,” which the court viewed as “success on the merits” under this court’s decision in Former Employees of Motorola

. Id. at 624. The government timely appeale d the Court of Federal Claims’ decision to this court. We have jurisdiction purs uant to 28 U

. S.C. § 1295(a)(3).

DISCUSSI ON
I. Although this court giv e s deference to a tr ial court’s decision to award attorney’s fees and expenses under the EAJA, no deference is given to a trial court’s legal

04-5069 7interpretations of the EAJA. Former Employees of Motorol a , 336 F.3d at 1363; Brickwood , 288 F.3d at 1376. T he question of whether a par ty qualifies as a “prevailing party” under the EAJA is a question of law. F o rmer Employees of Motorola , 336 F.3d at 1363. We therefore review de novo the decision of the Court of Federal Claims in this

case. On appeal, the government argues that Rice is not a prevailing party because the reevaluation of the bids was the result of the Navy’s voluntary and uni lateral decision t o take remedial action and not the result of a court-ordered change in the legal relationship of the parties. Moreover, the government argues that the Supreme Co urt’s decision in Buckhannon and this court’s decision in Brickwood limit “prevailing party” status to parties who have obt ained judic i al relief on the merits or a court-ordered consent decree, neither of wh ich, the government contends, were obtained in this case. First, the government argues that Rice did no t achiev e “success on the merits” becaus e the court only dism iss ed the cas e in v i ew of the Navy’s voluntary remedial action. The government argues that the or der in paragraph one of the Dis missal Order did not have any legal effect because the case was moot and the court consequently lacked jurisdiction to enter the order . The government fu rther argues that, ev en if the case was not moot, the order did not r equire the Navy to do anything it was not already doing. Second, the government argues that there was not a c ourt-ordered consent decree because the remedial action was taken unilatera lly and was ther efore not the result of an agreement or settlement between the parties. The government also argues that the Cour t of Federal Claims er red in relying on Former Employees of Motorola . The government contends that this is because in

04-5069 8Former E m ployees of Motorol a the trial court specifically remanded the case to an agency, whereas in this case the trial court s i mply dismissed the c a se. In addition, the government argues that unlik e Former Employees of Motorola , where the remand decision its e lf constituted success on the me rits, the Dismissal Order did not reach the merits of the case. The gover nment asserts that this distinctio n makes the case like Brickwood , not Former Employees of Motorola

. In respons e, Rice first argues that, under Buckhannon , “prevailing party” is not limited to parties who obtained a merit-based judgment or consent decree, but includes any party who obtained a court order materia lly changing the legal relation ship of the parties. Rice argues that the Court of Federal Claims’ decis i on should be affirmed because, unlike the dismissal order in Brick w ood , the Dismissal Order of September 26, 2002, meets the test for prevailing p a rty st atus. That is, according to Rice, the Dismissal Order materially cha nged the legal relationship of the parties by specific ally ordering that “the remedial action described and promised in de fendant’s submissions shall be undertaken.” Ric e cont ends that t h is differentiates this case from Brickwood , because in Brickwood the trial judge did not ever issue an order. Rather, i n that case the government sought dismiss a l after the trial judge made adverse comments at a hearing for a temporary restraining order. In addition, Rice s t ates that the judge’s comments in Br ickwood were made early in the cas e before the judge reached the merits. In this case, by c ontrast, Rice argues, the admi n istr ative record was much more developed and the court’s order was therefore on the merits. Rice further argues that the Dismis s al Order was fully enforceabl e because the governm ent had not completed its promised remedial action.

04-5069 9Rice lastly argues that the Court of Federal Claims’ deci sion is also cons is tent with this c ourt’s decision in For m er Employees of Motorola . Rice states that Former Employees of Motorola held that “[w]hen ther e is a rem and to the agency which remand grants relief on the merits sought by the pl aintiff, and the trial court does not retain jurisdiction, the securing of the remand orde r is itself success on the merits.” Rice contends that the Court of Federal Clai ms’ Dismissal Order meets this standard because (1) the order granted Rice its r equested relief by “convert[ing] the Government’s plan to take remedial action into a legally enforceab le mandate;” and (2) the Court of Federal Claims did not retain jurisdiction over t he case.
II.
A.
In Buckhannon , the Supreme Court addressed the meaning of “prevailing party” as used in the Fair Hous ing Am endments Act of 1998 (“F HAA”), 42 U.S.C. § 3601 et
seq. , and the Americ ans with Di sabilities Act of 1990 (“A DA”), 42 U.S.C. § 12101 et
seq. 4 532 U.S. at 601. The case involved resolving a split am ong the cir c uits as to whether a party could recover attorney’s fees as a “prevailing party” based on the “catalyst th eory” of re covery. Id. at 602. The “catalyst theor y” allows a plaintiff to recover attorney’s fees as a “prevailing party” if the plaintiff “achieves the desired result because the laws uit brought about a volunt ar y change in the def endant’s c o nduct.” Id.

4 The FHHA provides t hat “the court, in its discretio n, may allow the prevailing party . . . a reasonable attorney’s fee an d costs.” 42 U. S.C. § 3613(c)(2). The ADA s i milarly stat es that “the court . . . , in its dis c retion, may allow the prevailing party . . . a reasonable attorney’s fee, inc l uding litigation ex penses, and costs.” Id. § 12205.

04-5069 10at 601. T he Supreme Court ultimately reject ed this theory as a basis for recovery of attorney’s fees under the fee-shifti ng provisions of the FHAA and ADA. Id. at 610. The plaintif f in Buckhannon was an operator of assist ed liv ing homes who failed an inspection by a W e st Virginia fire marshal because some of the plaintiff’s residents
were not c apable of “self-preservation,” defi ned by the West Virginia Cod e to mean residents capable of removing themselves “fro m situati ons involv ing imminent danger, such as fir e .” Id. at 600 (citation omitted). The pl aintiff, on behalf of itself and other similarly s i tuated parties, brought suit in fede ral district court against the state of West Virginia, two of the state’s agencie s, and various individuals. Id. at 600-01. The complaint sought injunctive relief and a declaration that the “self-preservation” requirement violated provisions of the FHAA and ADA. Id. at 601. Before the district court made a decision in the case, the West Virginia Legislatur e enacted two statutes eliminating the “self-pres ervation” requirement. Id. T hereafter, the defendants filed a motion to dismiss the case, which the district court granted. The court found that the new legislation had eliminated the allegedly o ffensive provisions of the West Virginia code. Id. The plaintiffs subsequently filed an appl ication for attorney’s fees under the FHAA and ADA, arguing entitlement to fees under the “catalyst theory.” The district court and t he Fourth Circuit re jected the “c atalyst theory” as a basis for fee s and denied plaintiffs’ applic ation. Id. at 602. In affirming the Fourth Circuit, the Supr eme Court rejected the “catalyst theory” for fee awards. The Court first noted that under the “American Rule” there is “‘a gener a l practice of not awarding fees to a prevailing party absent exp lic it statutory authority.’” Id. (quoting Key Tronic Corp. v. U n ited States , 511 U.S. 809, 819 (1994)). Such exp lic it

04-5069 11statutory authority, the Court explained, is found in n u merous federal statutes allowing an award of attorney’s fees to a “prevailing party.” Id. at 602-03 (listing various statutes). Howev e r, the Court stated that a party cannot be said to “prev a il” unless it “‘receive[d] at least some relief on the merits of [its] claim.’” Id. at 603-04 (quoting Hewitt v. Helms , 482 U.S. 755, 760 (1987)). Furt hermore, the Court indicated that “relief on the merits” at least required that the party obtain a court order materially changing t he legal relationship of the parties. See id. at 604-05. The Court specific ally held that “ enforceable judgm ents on the merits and cour t-ordered consent decrees create the ‘ m aterial alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 604 (quoting Tex. State Teac hers Ass’n v. Garland Indep. Sch. Dist. , 489 U.S. 782, 792-93 (1989)). Acco rdingly, the Court held that the “catalyst theory” could not serve as a bas is for a fee award because “[i]t allows an award where there is no judicially sanction ed change in the legal relations h ip of the parties.” Id

. at 605. B. This court express l y extended Buckhannon to the EAJA in Bric kwood , 288 F.3d at 1377-79. The cas e arose from a bid-protes t action filed agains t the Department of the Navy in the Court of Feder al Claims on June 15, 1999. Id. at 1373. The plaintiff’s complaint s ought an injunction and an order dire cting the Navy to awar d the contract at issue to the plaintiff. Id. At a hearing held on June 21, 1999, in connection with the plaintiff’s request for a temporary restrai n ing order (“TRO”), the court made several comments that the Navy consider ed adverse to its position. Id. at 1373-74. As a result, on July 16, 1999, the Navy filed a motion to dismiss the case , stating that “[a]fter further

04-5069 12consideration of both the circumstances surrounding t he solicitation and the governing FAR provis ions, and in light of the Court’ s comments at the TRO hearing, the Navy has cancelled the solic itation and plans to re-so licit using a new [Invitation for Bids].” Id. at 1374. The Court of Federal Claims grant ed the motion to dismiss and, subsequently, granted the plaintiff’s applic at ion for attorney’ s fees. Id. at 1374-75. In reversing the trial court’s award of atto rney’s fees, we stated: “In our view, the Supreme Court in Buckhannon unambiguously rejected the ‘c atalyst theory’ except in instances where there is an enforceable j udgment on the merits or a court-ordered consent decree, both of which cr eate a material alteration in the legal relationship of th e parties.” Id. at 1380. We further hel d that “the cited comments [from the TRO hearing] are clearly not sufficient to es tablish a judicial im primatur and they do not constitute a ‘court-ordered change in the legal relationship’ of the parties as Buckhannon requires.” Id. This court addresse d the meaning of “prevailin g party” again in Forme r Employees of Motorola , 336 F.3d at 1363. The plaintiffs in that case filed a suit in the Court of International Trade alleging that they were improperly denied Worker Adjustment Assistanc e benefits by the Department of Labor. Id. at 1362. The plaintiffs requested that either the cour t certify them for benefits or remand the case to the Department of Labor for reconsideration. Id. The Department of Labor did not oppos e the reques t for remand but, rather, specifically requested remand for reconsideration. Id. In light of the government ’s position, the court ordered “that the defendant’s consent motion is granted and the case is rem anded to the Department of Labor for reconsider ation.” Id. The Department subsequently conducted a reevaluation and

04-5069 13awarded plaintiffs their request ed benefits. Shortly thereafter, the Court of International Trade dismissed the c a se by consent of bot h parties. Id. at 1363. The plaintiffs then filed an application for attorney’s fees under the EAJ A, which the c ourt denied based on the Supreme Court’s holding in Buckhannon

. Id. On appeal, we determined that the Court of International Tr ade erred in not finding the plaintiffs “preva iling parties” under the EAJA. We first stated that, in Buckhannon , [t]he [Supreme Court] explained that the term “prevailing party” does not “authorize[ ] federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless pot entially meritless laws uit (it will nev er be determined), has reached the ‘sought-after destination’ without obtaining any j udicial relief.” Rather, to be a prevailing party, one must “re ceive at least some relief on the merits,” which “alter[s] . . . the legal relationship of the parties.” Two examples of an alteration in the legal relationship between the parti es were an enforceable judgment on the merits and a c ourt-ordered consent decree. Id. at 1364 (citations omitted) . Second, we recogniz ed t hat although a remand order generally does not c o nfer prev ailing party status, a remand to an administrative agency is different. Id. at 1364-65. That is bec ause a “c ourt proceeding is treated as a separate proceeding from the adm inistrative proceeding.” Id. at 1365. A remand order from a court proceeding may therefore “constitu te the securing of relief on t he merits.” Id. We ultimately held that: When there is a remand to t he agency whic h remand grants relief on the merits sought by the plaintiff, and the trial court does not retain jurisdiction, the securing of the remand order is itself success on the meri ts. When there is such a remand, and the trial court retains jurisdiction, the claimant is a prevailing party only if it succeeds before the agency.

04-5069 14Id. at 1366. We concluded that the Court of Internationa l Trade erred because “the Court of International Trade retained juri s d iction during the remand, and the remand order resulted in appellants’ prevailing bef ore the agency.” Id. at 1367. We noted, however, that not all remand orders to an agency grant relief on the merits. Id. at 1366. In Vaughn v. Principi , 336 F.3d 1351, 1355-57 (Fed. Cir. 2003), fo r example , we held that neither the Secretary of Veterans Affairs’ filing of a motion to remand to allow reconsider ation in light of intervening legis l ation nor the Secretary’s motion to remand in light of new evidence c onstituted relief on the merits. C. In sum, under our decisions in Brickwood , Former Employees of Motorola , and Vaughn , in order to demonstrate that it is a “prevailing par ty,” an EAJA ap plicant mus t show that it obtained an enfor ceable judgm ent 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. T h is approac h is cons is tent with the approac h taken by the majority of the circuits t hat have considered the issue. See, e.g. , Roberson v

. Giulia ni , 346 F.3d 75, 81 (2d Cir. 2003) (“We therefore join the majority of courts to have considered the issue since Buck hannon in concluding that judi cial action ot her than a judgment on the merits or a consent decree c an suppor t an award of attorney’s fees, so long as such action c a rries with it sufficient judicial im primatur .” (footnote and citation omitted)); Truesdell v. Philadel phia Hous. Auth. , 290 F.3d 159, 165 (3d Cir. 2002) (holding that an order characterized as a st ipulated s e ttlement conferred prevailing p a rty status because it used m andatory language, bore the ju dge’s signature, and wa s judicially enforceable) ; Smyth v. Rivero , 282 F.3d 268, 281 (4th Cir. 2002) (“We doubt

04-5069 15that the Supreme Court’s guidance in Buck hannon was intended to be interpreted so restrictively as to require that the wo rds ‘c onsent dec ree’ be us ed explicitly.”); T.D. v. Lagrange Sch. Dist. No. 102 , 349 F.3d 469, 478 (7th Cir. 2003) (“[S]ome settlement agreements, even though not exp lic itly labeled as a ‘consent decree’ may confer ‘prevailing party’ status, if they are suffi ciently analogous to a consent decree.”); Am. Disability Ass’n, Inc. v. Chmielarz , 289 F.3d 1315, 1319 (11t h Cir. 2002) (“[T]he essential test establis hed by [ Buckhannon ] requires th e plaintiff to achieve a ‘judic i ally sanctioned change in the legal relations hip of the parties.’” (c itation omitted)); Oil, Chem. & Atomic Workers Int ’l Union v. Dep’t of Energy , 288 F.3d 452, 458-59 (D.C. Cir. 2002) (implying that a stipulated order of dismissal could confer prevailing party status if it carried sufficient judicial im primatur to materially change t he legal relationship of the parties). But see Christina A. v. Bloomberg , 315 F.3d 990, 993 (8th Cir. 2003) (“ B u ckhannon . . . makes it clear that a party prev ails only if it receive s either a n enforceable judgment on the meri ts or a consent decree.”).
In Roberson , for example, the Second Circuit held that a private settlement agreement was sufficient to create prevailing party status because the district court’s
express r e tention of jurisdiction over t he settlement provided sufficie n t “judicial imprimatur” to materially change the legal rela tionships of the partie s. 346 F.3d at 81. Similarly, in American Disab ility Associatio n , the Eleventh Circuit he ld that “[a] formal consent decree is unnecessary in these circ um stances because the ex plicit retention of jurisdiction or the court’s order specifically approving the te rms of the settlement are, for these purposes, the functional e quivalent of the entry of a consent decree.” 289 F.3d at
1320.

04-5069 16III.
In Buckhannon , as discussed above, the Suprem e Court rejected the “catalyst theory” as a basis for establis hing “prev a il ing party” status because “[the ‘cataly s t theory’] allows an award where there is no judicially sanctioned change in the legal relationship of the parties.” 532 U.S. at 605. The Court expl ained that “[a] defendant’s voluntary change in conduct, although per haps a ccomplishing what the plaintiff sought to achieve by the lawsuit, lack s t he necessary judicial imprimatur,” id. , to materially change the legal relationship of the parties and, therefore, does not convey “prevailing party” status, see id. at 604-06. In other words, Buckhannon has essentially created a threshold that a plaintiff must meet in or der to be deemed a “prevailing party.” This threshold r equires a plaintiff to have obtained a cour t order carrying sufficient “judicial imprimatur” to materi ally change the legal relationship of the parties. Enforceable judgments on the merits and cour t-ordered consent dec rees clear ly meet the threshold. Id. at 604. The threshold can also be met by other court action “equiv a lent” to a judgment on the merits or a c ourt-ordered consent dec ree. Ho wever, court action is not “equivalent” unless it carries su fficient judicial imprimat ur to materially change the legal relationship of the parties. The prec is e question we must decide in this case is whether the Dismissal Order of the Court of Federal Claims c o nfe rred prevailing party status upon Rice. 5 T h e order

5 As noted above, the order stated: In this circ umstance, . . . further action by the Court is not required or justified . . . and it is ORDERED that: (1) The remedial action described and promised in defendant’s submission shall be undertaken;

. . .
04-5069 17was not an enforceable judgment on the meri ts because the court did not reach the merits. Nor can we conclude that the or der was a court-ordered consent decree, as there is no evidence the order embodi es an agreement between the p a rties. See United States v. Armour & Co. , 402 U.S. 673, 681-82 (1971) (“Consent decrees are entered into by parties to a case after careful negotiation has produced an agreement on their precise terms.”); Black’s Law Dictionary 441 (8th ed. 2004) (“A court decree that all parties agree to.”). Theref ore, in order for Rice to achi eve “pr e vailing party” status from the Dismissal Order, we must conclude that the order was the equiv a lent of a judgment on the merits or a co urt-ordered consent dec ree. That is, we must conclu de that the order carried sufficien t judicial imprimatur to materially alter the legal relationship between Rice and the Navy. We conclu de that the Dismissal Order did n o t have such a legal effect. This is principally bec ause, in our view, Buckhannon does not allow a court to take what would otherwise be a “catalyst theory” case and conver t it—through language like that used in paragraph one of the Dismissal Order—into a ca se where the plaintiff is nevertheless accorded “prevailing party” status. Were we to hold otherwise, the Court’s holding in Buckhannon could be easily circumvented by an y order “directing” a party to take action. A review of the proceedings below establishes that Rice’ s EAJ A applic ation is, in essence, a “catalyst theory” claim for attor ney’s fees. First, the facts before us show

(Cont’d. ...) (3) Pla i ntiff’s co mplaint sh all b e DI SMISSED , without prejudice to the a ssertion of any new protest action addr essed to the remedial action in progress. Dismissa l Order , slip op. at 3 (emphases in original).

04-5069 18that the Navy acted unilaterally in initiating a reevaluation of bids. Indeed, the record contains no evidence of any discussions betw een the parties prior to the Navy initiatin g the reevaluation. Second, the record also indicates the Navy acted voluntar ily, i.e. the Navy undertook remedial action before any ru lings by the Court of Federal Claims. Moreover, i t appears that all of the offerors , including Rice, responded favorably to the Navy’s proposed remedial action before any ru lings were made by t he Court of Federal Claims. Third, onc e the gov ernment informed the court of the remedial action underway, the court issued t he September 26, 2002 order di smissing the case without reaching the merits. The court even stated that “[i]n view of the present status of this procurement, it is concluded that plaintiff’s protest has become ‘ essentially moot .’” Dismissa l Order , slip op. at 2 ( e mphasis added). T hat was because, the court said, “[t]he relief requested by plaintiff ha[d], subs tantially, been v o luntarily afforded by the Navy[,]” and “[t]he ori g inal offero rs, including plaintiff, [were] voluntarily participating i n the new submissions.” Id. Under thes e circumstances, we cannot conc lude that the order materially altered the legal relations hip between Rice and the Navy. Most not ably, the court found that Rice’s requested relief had already been “substant ially” and “voluntarily” afforded by the Navy. Thus, the court ent ered its order because the government had voluntarily abandoned its position. The court did not state that it was ent ering the order as a merits adjudication in the face of a continuing c ontroversy. Therefor e, even if the order changed the legal relationship of the parties, 6 the change was not material. In addition,

6 The court stated that the case was “e ssentially moot.” Obviously, if the case was moot then the Dismiss al Order had no effect on the parties’ legal relationship and did not confer upon Rice “prevailing party” status. N. Carolina v. Ric e , 404 U.S.

04-5069 19the facts here present less of a case for attorney’s fees than those in Brickwood , because in Brickwood , the government only took remedial action after the court made preliminary comments from t he bench regarding its view on the merits, comments that were adverse to the government. Here, by contrast, the court ha d given no indication as to its view on the merits of the case prio r to the government seeking dis m issal. Nor is our holding in Former Employees of Motorola helpful to Rice. That is because the Dismissal Order was not a rem and to an agency for further c onsideration or action b y the government based on a settlement agr eement, but a dismiss a l in view of remedial action already implem ented unilaterally and voluntarily by the Navy. In sum, for the foregoing reasons, we c onclude that this is really a “catalyst theory” case, despite the Dismiss al Order dire cting the government to follow through on its promised remedial action. Holding ot herwise would expos e a backdoor through which claimants could circumvent Buckhannon by obtaining attorney’s fees f o r what are, in essence, “catalyst theory” cases. CONCLUS ION We hold that Rice is not a “pr e vailin g party” under the EAJ A. The Court of Federal Claims cons equently er red in awar ding Rice attorney’s fees. The judgment of the court is ther efore reversed. COSTS Each party shall bear its own costs.
R E VER SED
(Cont’d. ...) 244, 246 (1971) (“[I]t has frequent ly [been] repeated that feder al courts are without power to decide ques tions that cannot affect the rights of litigants in the case before them.” ).

04-5069 20

## United States Court of Appeals for the Federal Circuit

04-5069 RICE SERVICES, LTD., Plaintiff-Appellee,

v.
UNITED STATES, Defendant-Appellant.

DYK, Circuit Judge , concurring. I join the majority opinion, and writ e separately only to emphasize that the voluntary abandonment of challenged conduc t will not always and automatically preclude the award of a ttorney’s fees. As Buckhannon itself recognized, there may be circumstances in which a cont inuing controversy will exist despite the claimed voluntary abandonment; the merits of the case will be decided; and the winning party will be entitled to prevailing party status. Thus in Buckhannon , the Court stated: It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal c ourt of its power to determine the legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. If a case is not found to be moot, and the plaint iff later procures an enforceable judgment, the court may of course award attorney's fees. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res. , 532 U.S. 598, 609 (2001) (internal citations omitted). The majority here correctly concludes that this is not such a case. There was no settlement agreement leading to the entry of an enforceable decree, and the Court ofFederal Claims entered an injunctive order without deciding the merits. Under such circumstances, I agree that ther e is no entitlement to fees.

04-5069 2