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, Hildebrant & Tolle, LLP, of McLean, 

Virginia, argued for plaintiff-appellee. With him on the brief was William T. Welch. 

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil 

Division, United States Department 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 General 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 judgment awarding attorney’s fees 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”) against 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 administrative record. In addition, the 

 1

 Unless otherwise indicated, references are to the 2000 version of the 

United States Code. 
government filed a motion to dismiss the case for mootness due to the Navy’s voluntary

and unilateral decision to reevaluate the bids. The Court of Federal Claims granted the 

government’s motion to dismiss and consequently denied the two pending motions for 

judgment on the administrative record. Rice Servs., Ltd. v. United States, No. 02-468 C 

(Fed. Cl. Sept. 26, 2002) (“Dismissal Order”). 

Subsequently, having received the relief requested in its complaint, Rice filed an

application for attorney’s fees under the EAJA. The Court of Federal Claims granted 

Rice’s application and awarded Rice $31,709.38 in attorney’s fees. Rice Servs., 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 appealed.

The specific issue on appeal is whether the Court of Federal Claims erred in finding 

Rice a “prevailing party” under the EAJA. Because we find the court did err, we 

reverse. 

BACKGROUND 

I. 

This case arises out of a procurement by the Navy for wardroom dining services

at the U.S. Naval Academy in Annapolis, Maryland. Dismissal Order, slip op. at 1. The

Navy awarded the dining services contract to EC Management Services of Maryland, 

LLC (“EC”) in December of 2001. Id. The term of the contract was from January 1, 

2002, through September 30, 2002, 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 2
level protest with the Navy contesting the award to EC. Id. The Navy denied Rice’s

protest on January 29, 2002. 

On May 9, 2002, Rice filed this action in the Court of Federal Claims. Rice 

requested the following relief: (1) a declaration 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, 2002, and the parties cross-moved for summary judgment

on it shortly thereafter. Dismissal Order, slip op. at 2. In addition, the government filed 

a motion to dismiss the lawsuit on the ground that the case was moot due to the Navy’s

unilateral and voluntary decision to conduct a new contract solicitation. Id. 

On July 18, 2002, as promised in the government’s motion to dismiss, the Navy 

issued notices to each of the six original offerors, informing them that the Navy had 

decided to open discussions regarding the solicitation 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 schedule for 

discussions, submission of new offers, oral presentations, and a reevaluation. Id. The 

schedule stated that a new award would be made by November 20, 2002. Id. In view

of the new solicitation, the Navy stated that it would not exercise the option under the 

current contract with EC.

2

 Id.

 2 The Navy did, however, reserve the right to exercise the contract’s 

continuity of service clause in order to obtain necessary services pending 

commencement of the new award in November. Dismissal Order, slip op. at 2. 

04-5069 3
On September 26, 2002, the Court of Federal Claims granted the government’s 

motion to dismiss and denied all other pending motions. Id. slip op. at 3. The court 

found that the case had become “essentially moot” because 

[t]he relief requested by [Rice] has, substantially, been 

voluntarily afforded by the Navy. The original offerors,

including [Rice] are voluntarily participating in the new 

submissions. The contract term 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 award decision will be made by

the Navy. 

Id. slip op. at 2.3 The court concluded: 

In this circumstance, . . . 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 submissions shall be undertaken; 

(2) Accordingly, all outstanding motions are, 

otherwise, DENIED, without prejudice to any reassertion of

the arguments therein which 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 assertion 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 presented are no longer ‘live’ or the 

parties lack a legally cognizable 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 rendered moot. A case is rendered moot if (1) “it can be said 

with assurance that there is no reasonable expectation that the alleged violation will 

recur;” and (2) “interim relief or events have completely and irrevocably eradicated the 

effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 

(1975) (citations omitted). 

04-5069 4
II. 

On December 17, 2002, Rice filed an application for attorney’s fees under the 

EAJA. EAJA Order, slip op. at 2. The EAJA is a fee-shifting statute, which, under

appropriate circumstances, allows a party who prevails in litigation against the 

government to recover attorney’s fees and litigation costs. 28 U.S.C. § 2412. The 

statute states, in relevant part, 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.” Id. § 2412(d)(1)(A). 

The government opposed the fee application on the ground that Rice was not a 

“prevailing party” under the Supreme Court’s decision in Buckhannon Board & Care

Home, Inc. v. West Virginia Department of Health & Human Resources, 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. The 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 decision by the Navy. Id. In response, Rice argued that it was

a prevailing party because the Dismissal Order of September 26, 2002, “affirmatively

ordered the Navy to act” in carrying-out its promised remedial action. Id.

The Court of Federal Claims granted Rice’s application and awarded Rice 

$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 those of Former Employees of Motorola Ceramic Products

04-5069 5
v. United States, 336 F.3d 1360 (Fed. Cir. 2003), where this court held that a court 

order remanding a case to an agency constitutes “success on the merits” when the 

court did not retain jurisdiction on remand. EAJA Order, slip op. at 2 (“The 

circumstances presented in this matter are equivalent to the situation where the parties

consent to a remand order for agency corrective action and where the court does not

retain jurisdiction while the further agency action is undertaken.”) Therefore, the court 

held, Rice was a prevailing party and entitled to the claimed attorney’s fees. 

The government subsequently filed a motion for reconsideration of the attorney’s

fee award. The government again argued that Rice did not “prevail” in its lawsuit 

because the trial court only dismissed the claim after the Navy had undertaken 

voluntary remedial action to reopen the solicitation. Reconsideration, 59 Fed. Cl. at 

620. Therefore, according to the government, it was not a court order but the Navy’s

voluntary actions that gave Rice its requested relief. The government also argued that 

this court’s decision in Brickwood, 288 F.3d at 1380, held that under Buckhannon the 

only types of court action that confer prevailing party status are enforceable judgments

on the merits and court-ordered consent decrees, neither of which were present in this 

case. Reconsideration, 59 Fed. Cl. at 621. 

The Court of Federal Claims denied the motion for reconsideration on January 

13, 2004. The court recognized 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 Buckhannon, the court stated, one must “receive at least 

some relief on the merits,” which “alters the legal relationship of the parties.” Id.

(quoting Buckhannon, 532 U.S. at 603). Contrary to the government’s contention, 

04-5069 6
however, the court held that Federal Circuit precedent did not limit “prevailing party” 

status under Buckhannon to merit-based decisions or court-ordered consent decrees. 

Id. The court indicated that the key question after Buckhannon is whether there was a 

court order carrying sufficient judicial imprimatur to materially alter the legal relationship 

of the parties. See id. at 622. 

In this case, the Court of Federal Claims held that the Dismissal Order “not only

impressed defendant’s curative efforts with the imprimatur of this court, but also altered 

the legal relationship between the parties.” Id. This was because the “Order requiring 

defendant to comply with its promised action created independent rights and 

obligations.” Id. at 623. Furthermore, the court found that Rice did obtain “some relief 

on the merits” from the Dismissal Order. This was because Rice’s complaint asked the 

court to order a new evaluation and to enjoin the Navy from exercising the option under

the award to EC, and this was the relief Rice actually received from the Dismissal 

Order. Id. The court also reiterated that “the [dismissal] action taken was equivalent to

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 appealed the Court of Federal Claims’ decision to this

court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

DISCUSSION 

I. 

Although this court gives deference to a trial 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 7
interpretations of the EAJA. Former Employees of Motorola, 336 F.3d at 1363; 

Brickwood, 288 F.3d at 1376. The question of whether a party qualifies as a “prevailing 

party” under the EAJA is a question of law. Former 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 unilateral decision to

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 Court’s

decision in Buckhannon and this court’s decision in Brickwood limit “prevailing party”

status to parties who have obtained judicial relief on the merits or a court-ordered

consent decree, neither of which, the government contends, were obtained in this case. 

First, the government argues that Rice did not achieve “success on the merits” because

the court only dismissed the case in view of the Navy’s voluntary remedial action. The 

government argues that the order in paragraph one of the Dismissal Order did not have 

any legal effect because the case was moot and the court consequently lacked 

jurisdiction to enter the order. The government further argues that, even if the case was 

not moot, the order did not require the Navy to do anything it was not already doing. 

Second, the government argues that there was not a court-ordered consent decree 

because the remedial action was taken unilaterally and was therefore not the result of 

an agreement or settlement between the parties. 

The government also argues that the Court of Federal Claims erred in relying on 

Former Employees of Motorola. The government contends that this is because in 

04-5069 8
Former Employees of Motorola the trial court specifically remanded the case to an 

agency, whereas in this case the trial court simply dismissed the case. In addition, the 

government argues that unlike Former Employees of Motorola, where the remand 

decision itself constituted success on the merits, the Dismissal Order did not reach the 

merits of the case. The government asserts that this distinction makes the case like 

Brickwood, not Former Employees of Motorola. 

In response, 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 materially changing the legal relationship of the

parties. Rice argues that the Court of Federal Claims’ decision should be affirmed 

because, unlike the dismissal order in Brickwood, the Dismissal Order of September 26, 

2002, meets the test for prevailing party status. That is, according to Rice, the 

Dismissal Order materially changed the legal relationship of the parties by specifically

ordering that “the remedial action described and promised in defendant’s submissions 

shall be undertaken.” Rice contends that this differentiates this case from Brickwood, 

because in Brickwood the trial judge did not ever issue an order. Rather, in that case 

the government sought dismissal after the trial judge made adverse comments at a 

hearing for a temporary restraining order. In addition, Rice states that the judge’s 

comments in Brickwood were made early in the case before the judge reached the 

merits. In this case, by contrast, Rice argues, the administrative record was much more 

developed and the court’s order was therefore on the merits. Rice further argues that 

the Dismissal Order was fully enforceable because the government had not completed 

its promised remedial action. 

04-5069 9
Rice lastly argues that the Court of Federal Claims’ decision is also consistent 

with this court’s decision in Former Employees of Motorola. Rice states that Former 

Employees of Motorola held that “[w]hen there is a remand to the agency which 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 merits.” Rice 

contends that the Court of Federal Claims’ Dismissal Order meets this standard 

because (1) the order granted Rice its requested relief by “convert[ing] the 

Government’s plan to take remedial action into a legally enforceable mandate;” and (2) 

the Court of Federal Claims did not retain jurisdiction over the case. 

II. 

A. 

In Buckhannon, the Supreme Court addressed the meaning of “prevailing party” 

as used in the Fair Housing Amendments Act of 1998 (“FHAA”), 42 U.S.C. § 3601 et

seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et

seq.4 532 U.S. at 601. The case involved resolving a split among the circuits as to 

whether a party could recover attorney’s fees as a “prevailing party” based on the 

“catalyst theory” of recovery. Id. at 602. The “catalyst theory” allows a plaintiff to 

recover attorney’s fees as a “prevailing party” if the plaintiff “achieves the desired result

because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id.

 4 The FHHA provides that “the court, in its discretion, may allow the 

prevailing party . . . a reasonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2). 

The ADA similarly states that “the court . . . , in its discretion, may allow the prevailing 

party . . . a reasonable attorney’s fee, including litigation expenses, and costs.” Id. 

§ 12205. 

04-5069 10
at 601. The Supreme Court ultimately rejected this theory as a basis for recovery of

attorney’s fees under the fee-shifting provisions of the FHAA and ADA. Id. at 610. 

The plaintiff in Buckhannon was an operator of assisted living homes who failed 

an inspection by a West Virginia fire marshal because some of the plaintiff’s residents 

were not capable of “self-preservation,” defined by the West Virginia Code to mean 

residents capable of removing themselves “from situations involving imminent danger, 

such as fire.” Id. at 600 (citation omitted). The plaintiff, on behalf of itself and other

similarly situated parties, brought suit in federal district court against the state of West

Virginia, two of the state’s agencies, 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 Legislature enacted two statutes 

eliminating the “self-preservation” requirement. Id. Thereafter, 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 offensive provisions of the West Virginia 

code. Id. The plaintiffs subsequently filed an application for attorney’s fees under the 

FHAA and ADA, arguing entitlement to fees under the “catalyst theory.” The district 

court and the Fourth Circuit rejected the “catalyst theory” as a basis for fees and denied 

plaintiffs’ application. Id. at 602. 

In affirming the Fourth Circuit, the Supreme Court rejected the “catalyst theory” 

for fee awards. The Court first noted that under the “American Rule” there is “‘a general 

practice of not awarding fees to a prevailing party absent explicit statutory authority.’” 

Id. (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Such explicit 

04-5069 11
statutory authority, the Court explained, is found in numerous federal statutes allowing 

an award of attorney’s fees to a “prevailing party.” Id. at 602-03 (listing various

statutes). However, the Court stated that a party cannot be said to “prevail” 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)). Furthermore, the Court indicated that 

“relief on the merits” at least required that the party obtain a court order materially

changing the legal relationship of the parties. See id. at 604-05. The Court specifically

held that “enforceable judgments on the merits and court-ordered consent decrees 

create the ‘material alteration of the legal relationship of the parties’ necessary to permit

an award of attorney’s fees.” Id. at 604 (quoting Tex. State Teachers Ass’n v. Garland 

Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). Accordingly, the Court held that the 

“catalyst theory” could not serve as a basis for a fee award because “[i]t allows an 

award where there is no judicially sanctioned change in the legal relationship of the 

parties.” Id. at 605. 

B. 

This court expressly extended Buckhannon to the EAJA in Brickwood, 288 F.3d 

at 1377-79. The case arose from a bid-protest action filed against the Department of 

the Navy in the Court of Federal Claims on June 15, 1999. Id. at 1373. The plaintiff’s

complaint sought an injunction and an order directing the Navy to award 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 restraining order (“TRO”), the court made several 

comments that the Navy considered 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 12
consideration of both the circumstances surrounding the solicitation and the governing 

FAR provisions, and in light of the Court’s comments at the TRO hearing, the Navy has

cancelled the solicitation and plans to re-solicit using a new [Invitation for Bids].” Id. at 

1374. The Court of Federal Claims granted the motion to dismiss and, subsequently,

granted the plaintiff’s application for attorney’s fees. Id. at 1374-75. 

In reversing the trial court’s award of attorney’s fees, we stated: “In our view, the 

Supreme Court in Buckhannon unambiguously rejected the ‘catalyst theory’ except in 

instances where there is an enforceable judgment on the merits or a court-ordered 

consent decree, both of which create a material alteration in the legal relationship of the 

parties.” Id. at 1380. We further held that “the cited comments [from the TRO hearing]

are clearly not sufficient to establish a judicial imprimatur and they do not constitute a 

‘court-ordered change in the legal relationship’ of the parties as Buckhannon requires.” 

Id. 

This court addressed the meaning of “prevailing party” again in Former 

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 Assistance benefits by the Department of Labor. Id. at 1362. The plaintiffs

requested that either the court certify them for benefits or remand the case to the 

Department of Labor for reconsideration. Id. The Department of Labor did not oppose

the request 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 remanded to the Department of Labor for 

reconsideration.” Id. The Department subsequently conducted a reevaluation and 

04-5069 13
awarded plaintiffs their requested benefits. Shortly thereafter, the Court of International 

Trade dismissed the case by consent of both parties. Id. at 1363. The plaintiffs then 

filed an application for attorney’s fees under the EAJA, which the court denied based on 

the Supreme Court’s holding in Buckhannon. Id.

On appeal, we determined that the Court of International Trade erred in not 

finding the plaintiffs “prevailing 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 potentially meritless lawsuit (it

will never be determined), has reached the ‘sought-after 

destination’ without obtaining any judicial relief.” Rather, to 

be a prevailing party, one must “receive 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 parties were an enforceable 

judgment on the merits and a court-ordered consent decree. 

Id. at 1364 (citations omitted). Second, we recognized that although a remand order 

generally does not confer prevailing party status, a remand to an administrative agency

is different. Id. at 1364-65. That is because a “court proceeding is treated as a 

separate proceeding from the administrative proceeding.” Id. at 1365. A remand order 

from a court proceeding may therefore “constitute the securing of relief on the merits.” 

Id. We ultimately held that: 

When there is a remand to the agency which 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 merits. 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 14
Id. at 1366. We concluded that the Court of International Trade erred because “the 

Court of International Trade retained jurisdiction during the remand, and the remand 

order resulted in appellants’ prevailing before 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), for example, we held 

that neither the Secretary of Veterans Affairs’ filing of a motion to remand to allow 

reconsideration in light of intervening legislation nor the Secretary’s motion to remand in 

light of new evidence constituted 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 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. This approach is consistent with the approach taken by

the majority of the circuits that have considered the issue. See, e.g., Roberson v.

Giuliani, 346 F.3d 75, 81 (2d Cir. 2003) (“We therefore join the majority of courts to have 

considered the issue since Buckhannon in concluding that judicial action other than a 

judgment on the merits or a consent decree can support an award of attorney’s fees, so 

long as such action carries with it sufficient judicial imprimatur.” (footnote and citation 

omitted)); Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 165 (3d Cir. 2002) 

(holding that an order characterized as a stipulated settlement conferred prevailing party

status because it used mandatory language, bore the judge’s signature, and was

judicially enforceable); Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002) (“We doubt 

04-5069 15
that the Supreme Court’s guidance in Buckhannon was intended to be interpreted so 

restrictively as to require that the words ‘consent decree’ be used explicitly.”); T.D. v. 

Lagrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003) (“[S]ome settlement 

agreements, even though not explicitly labeled as a ‘consent decree’ may confer 

‘prevailing party’ status, if they are sufficiently analogous to a consent decree.”); Am. 

Disability Ass’n, Inc. v. Chmielarz, 289 F.3d 1315, 1319 (11th Cir. 2002) (“[T]he 

essential test established by [Buckhannon] requires the plaintiff to achieve a ‘judicially

sanctioned change in the legal relationship of the parties.’” (citation 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 imprimatur to materially change the legal relationship of the 

parties). But see Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) 

(“Buckhannon . . . makes it clear that a party prevails only if it receives either an

enforceable judgment on the merits 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 retention of jurisdiction over the settlement provided sufficient “judicial 

imprimatur” to materially change the legal relationships of the parties. 346 F.3d at 81. 

Similarly, in American Disability Association, the Eleventh Circuit held that “[a] formal 

consent decree is unnecessary in these circumstances because the explicit retention of

jurisdiction or the court’s order specifically approving the terms of the settlement are, for

these purposes, the functional equivalent of the entry of a consent decree.” 289 F.3d at 

1320. 

04-5069 16
III. 

 In Buckhannon, as discussed above, the Supreme Court rejected the “catalyst 

theory” as a basis for establishing “prevailing party” status because “[the ‘catalyst 

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 explained that “[a] defendant’s 

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought 

to achieve by the lawsuit, lacks the 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 order to be deemed a “prevailing party.” This

threshold requires a plaintiff to have obtained a court order carrying sufficient “judicial 

imprimatur” to materially change the legal relationship of the parties. Enforceable 

judgments on the merits and court-ordered consent decrees clearly meet the threshold.

Id. at 604. The threshold can also be met by other court action “equivalent” to a 

judgment on the merits or a court-ordered consent decree. However, court action is not

“equivalent” unless it carries sufficient judicial imprimatur to materially change the legal 

relationship of the parties. 

The precise question we must decide in this case is whether the Dismissal Order 

of the Court of Federal Claims conferred prevailing party status upon Rice.5

 The order

 5

 As noted above, the order stated: 

In this circumstance, . . . 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 17
was not an enforceable judgment on the merits because the court did not reach the 

merits. Nor can we conclude that the order was a court-ordered consent decree, as

there is no evidence the order embodies an agreement between the parties. 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.”). Therefore, in order for Rice to achieve “prevailing party” status 

from the Dismissal Order, we must conclude that the order was the equivalent of a 

judgment on the merits or a court-ordered consent decree. That is, we must conclude 

that the order carried sufficient judicial imprimatur to materially alter the legal 

relationship between Rice and the Navy. We conclude that the Dismissal Order did not 

have such a legal effect. 

This is principally because, in our view, Buckhannon does not allow a court to 

take what would otherwise be a “catalyst theory” case and convert it—through language 

like that used in paragraph one of the Dismissal Order—into a case 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 any order “directing” a party to 

take action. 

A review of the proceedings below establishes that Rice’s EAJA application is, in 

essence, a “catalyst theory” claim for attorney’s fees. First, the facts before us show 

(Cont’d. ...) 

(3) Plaintiff’s complaint shall be DISMISSED, 

without prejudice to the assertion of any new protest 

action addressed to the remedial action in progress. 

Dismissal Order, slip op. at 3 (emphases in original). 

04-5069 18
that the Navy acted unilaterally in initiating a reevaluation of bids. Indeed, the record 

contains no evidence of any discussions between the parties prior to the Navy initiating

the reevaluation. Second, the record also indicates the Navy acted voluntarily, i.e. the 

Navy undertook remedial action before any rulings by the Court of Federal Claims.

Moreover, it appears that all of the offerors, including Rice, responded favorably to the 

Navy’s proposed remedial action before any rulings were made by the Court of Federal 

Claims. Third, once the government informed the court of the remedial action 

underway, the court issued the September 26, 2002 order dismissing 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.’” 

Dismissal Order, slip op. at 2 (emphasis added). That was because, the court said, 

“[t]he relief requested by plaintiff ha[d], substantially, been voluntarily afforded by the 

Navy[,]” and “[t]he original offerors, including plaintiff, [were] voluntarily participating in

the new submissions.” Id. 

Under these circumstances, we cannot conclude that the order materially altered 

the legal relationship between Rice and the Navy. Most notably, the court found that 

Rice’s requested relief had already been “substantially” and “voluntarily” afforded by the 

Navy. Thus, the court entered its order because the government had voluntarily

abandoned its position. The court did not state that it was entering the order as a merits

adjudication in the face of a continuing controversy. Therefore, 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 “essentially moot.” Obviously, if the 

case was moot then the Dismissal Order had no effect on the parties’ legal relationship 

and did not confer upon Rice “prevailing party” status. N. Carolina v. Rice, 404 U.S. 

04-5069 19
the 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 the bench regarding its view on the merits, comments that 

were adverse to the government. Here, by contrast, the court had given no indication 

as to its view on the merits of the case prior to the government seeking dismissal. Nor 

is our holding in Former Employees of Motorola helpful to Rice. That is because the 

Dismissal Order was not a remand to an agency for further consideration or action by

the government based on a settlement agreement, but a dismissal in view of remedial 

action already implemented unilaterally and voluntarily by the Navy. 

In sum, for the foregoing reasons, we conclude that this is really a “catalyst 

theory” case, despite the Dismissal Order directing the government to follow through on 

its promised remedial action. Holding otherwise would expose a backdoor through 

which claimants could circumvent Buckhannon by obtaining attorney’s fees for what are, 

in essence, “catalyst theory” cases. 

CONCLUSION 

We hold that Rice is not a “prevailing party” under the EAJA. The Court of 

Federal Claims consequently erred in awarding Rice attorney’s fees. The judgment of 

the court is therefore reversed. 

COSTS 

Each party shall bear its own costs. 

REVERSED

(Cont’d. ...) 

244, 246 (1971) (“[I]t has frequently [been] repeated that federal courts are without 

power to decide questions 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 write separately only to emphasize that the 

voluntary abandonment of challenged conduct will not always and automatically 

preclude the award of attorney’s fees. As Buckhannon itself recognized, there may be 

circumstances in which a continuing 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 court 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 plaintiff 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 of 
Federal Claims entered an injunctive order without deciding the merits. Under such 

circumstances, I agree that there is no entitlement to fees. 

04-5069 2