Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2003 Decided June 3, 2003

No. 02-5169

WILLIAM THOMAS, ET AL.,

APPELLEES

v.

NATIONAL SCIENCE FOUNDATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 97cv02412)

Michael E. Robinson, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the brief

were Roscoe C. Howard, Jr., U.S. Attorney, and Michael J.

Singer, Attorney, U.S. Department of Justice. R. Craig

Lawrence and Lisa S. Goldfluss, Assistant U.S. Attorneys,

entered appearances.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

William H. Bode argued the cause for appellees. With him

on the brief was Anne R. Noble.

Arthur B. Spitzer, Amanda Frost and Brian Wolfman

were on the brief for amici curiae ACLU and Public Citizen,

Inc., in support of appellees.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,

Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: In 1995, the National Science

Foundation (‘‘NSF’’), the sole appellant before this court, and

Network Solutions, Inc. (‘‘NSI’’), a private contractor, entered

into an agreement which permitted NSI to collect fees for

Internet registration services. NSI and NSF divided the

fees 70%-30%, with NSF’s 30% share deposited into an

Intellectual Infrastructure Fund (‘‘Fund’’) for future Government use on Internet projects. In 1997, William Thomas and

other parties (collectively, ‘‘appellees’’), filed a suit in District

Court seeking to enjoin NSF and NSI from spending monies

in the Fund and claiming restitution of fees collected from

domain name registrants on the Internet. The District Court

issued a preliminary injunction temporarily barring NSF and

NSI from spending any money in the Fund. See Thomas v.

Network Solutions, Inc., No. 97-02412 (D.D.C. Feb. 2, 1998)

(‘‘Injunction Order’’), reprinted in Appendix (‘‘App.’’) 71-83.

Subsequently, the District Court dismissed all counts of the

Amended Complaint except Count One and dismissed NSI

from the lawsuit (because Count One concerned only NSF.)

See Thomas v. Network Solutions, Inc., 2 F. Supp. 2d 22, 38

(D.D.C. 1998) (‘‘SJ Decision’’). The SJ Decision also granted

partial summary judgment for appellees, holding that the

portion of the registration fees deposited in the Fund emanated from a tax that was neither imposed nor ratified by

Congress as required by Article I, Section 8 of the Constitution. Although the District Court found the ‘‘tax’’ unconstitutional, it awarded no money relief to appellees.

Before the District Court was able to render final judgment

or issue an order for specific relief in the case, the President

signed into law H.R. 3579, the Fiscal Year 1998 Supplemental
3

Appropriations and Rescissions Act. Section 8003 of the

statute ‘‘legalized and ratified’’ the registration fee and the

monies held by NSF in the Fund, thus rendering moot

appellees’ claim before the District Court. The District

Court then vacated the preliminary injunction and dismissed

the case. Thomas v. Network Solutions, Inc., No. 97-02412

(D.D.C. Aug. 28, 1998) (‘‘Dismissal Order’’), reprinted in App.

84-98. The District Court’s judgment was affirmed by this

court in Thomas v. Network Solutions, Inc., 176 F.3d 500, 507

(D.C. Cir. 1999) (‘‘Thomas II’’).

Appellees then filed a motion for attorney’s fees and costs

against NSF under the Equal Access to Justice Act

(‘‘EAJA’’), 28 U.S.C. § 2412(d)(1)(A) (1982). The District

Court, held that, because they had succeeded in securing a

preliminary injunction and a partial summary judgment, appellees were ‘‘prevailing parties’’ under EAJA and, thus,

entitled to fees and costs. Thomas v. Network Solutions,

Inc., No. 97-02412 (D.D.C. Mar. 22, 2002) (‘‘Fee Award’’),

reprinted in App. 551-59; Thomas v. Network Solutions, Inc.,

No. 97-02412 (D.D.C. Mar. 23, 2001) (‘‘Fee Decision’’), reprinted in App. 399-422. NSF appeals from these judgments.

In Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health and Human Resources, 532 U.S. 598

(2001) (‘‘Buckhannon’’), the Supreme Court denied fees to a

party whose claim was mooted by intervening legislation.

The Court held that a plaintiff is not a ‘‘prevailing party’’

under a fee-shifting statute simply by virtue of having ‘‘acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by judicial relief.’’ Id.

at 606; see also Hewitt v. Helms, 482 U.S. 755, 760 (1987).

In our view, the Court’s judgment and reasoning in Buckhannon make it clear that appellees are not ‘‘prevailing parties’’

under EAJA. We therefore reverse the judgments of the

District Court.

I. BACKGROUND

Many of the details relating to the underlying litigation in

this case are set forth in Thomas II, 176 F.3d at 502-06. Our
4

statement of the facts will therefore focus primarily on the

matters related to this appeal.

NSF is an independent federal agency whose authority

extends to ‘‘coordinating and funding the management of the

nonmilitary portion of the Internet infrastructure.’’ Id. at

504. In 1993, NSF signed a Cooperative Agreement with

NSI. The agreement called for NSI to design and manage a

system for individuals and companies to register their Internet domain names. In addition, NSF agreed to compensate

NSI for the costs of offering this service to the public and to

provide the company an additional fixed fee for each completed domain name registration.

In 1995, NSF and NSI amended their Cooperative Agreement. Under the revised arrangement, the cost of an Internet domain name would be $100 for new registrations and $50

for yearly renewals. The amended contract allotted 70% of

the fees to NSI as consideration for the services provided,

with the remaining 30% to be deposited in the Intellectual

Infrastructure Fund for future Government use in connection

with Internet projects. The fee arrangement under the

revised Cooperative Agreement was adopted by NSF and

NSI without prior authorizing legislation from Congress.

In October, 1997, appellees, various parties who had paid

the Internet registration fees, filed a civil lawsuit against

NSF and NSI in the District Court. They claimed that

NSF’s share of the registration fees (the so-called ‘‘Preservation Assessment’’) was an unconstitutional tax, because Congress never authorized the agency to collect and deposit

monies into the Fund. Appellees sought an injunction barring NSF from collecting any further fees or spending any

monies in the Fund and a refund of the money that had been

deposited in the Fund. Shortly after appellees filed suit, the

District Court issued a limited preliminary injunction preventing NSF from ‘‘crediting, spending, obligating or using

any of the money collected for, placed into, or taken from’’ the

Fund pending final adjudication of the case. Injunction

Order, App. 83.
5

On April 6, 1998, the District Court dismissed all counts of

the Amended Complaint, except Count One; granted a partial

summary judgment in favor of appellees against NSF on

Count One of the Amended Complaint; and dismissed NSI

from the case. SJ Decision, 2 F. Supp. 2d at 25; Dismissal

Order at 2, App. 85. The District Court held that ‘‘there is no

dispute that the Preservation Assessment exists to generate

revenue for public projects and goals, or that it is a fee

imposed independent of and above the cost of domain name

registration.’’ SJ Decision, 2 F. Supp. 2d at 30. Since the

1995 amendment to the Cooperative Agreement had neither

been reviewed nor ratified by Congress, the District Court

reasoned, NSF’s collection of the assessment was an unapproved ‘‘tax’’ in violation of Article I, Section 8 of the Constitution. Id. at 33.

Before the District Court entered final judgment or addressed appellees’ claims for relief, Congress passed and the

President signed into law Section 8003 of the Fiscal Year

1998 Supplemental Appropriations and Recissions Act:

RATIFICATION OF INTERNET INTELLECTUAL INFRASTRUCTURE FEE. (a) The 30 percent

portion of the fee charged by Network Solutions,

Inc., between September 14, 1995 and March 31,

1998, for registration and renewal of an Internet

second-level domain name, which portion was to be

expended for the preservation and enhancement of

the intellectual infrastructure of the Internet under

a cooperative agreement with the National Science

Foundation TTT is hereby legalized and ratified and

confirmed fully as to all intents and purpose as if the

same had, by prior Act of Congress, been specifically

authorized and directed.

Pub. L. No. 105-174, 112 Stat. 58, 93. This statutory provision had the clear purpose and effect of legalizing and ratifying NSF’s Preservation Assessment scheme.

Following enactment of § 8003, NSF filed a motion to

vacate the preliminary injunction and dismiss the case as

moot. On August 28, 2000, the District Court concluded that
6

Section 8003 was ‘‘sufficient to effect a valid ratification of the

[Preservation Assessment].’’ Dismissal Order at 13, App. 96;

see also U.S. v. Heinszen & Co., 206 U.S. 370, 384 (1907)

(recognizing congressional power to ratify tax retroactively).

Finding no other legal impediment preventing NSF from

imposing the Preservation Assessment on new registrants or

from using the funds already collected, the District Court

granted NSF’s motion. Dismissal Order at 15, App. 98.

This court affirmed the judgment of the District Court, see

Thomas II, 176 F.3d at 512, and the Supreme Court denied

appellees’ petition for certiorari, see Thomas v. Network

Solutions, Inc., 528 U.S. 1115 (2000).

On February 17, 2000, appellees filed a motion in District

Court seeking an award of attorney’s fees and costs under

EAJA. See Plaintiffs’ Application in Support of Motion for

Award of Attorney’s Fees and Costs (‘‘Fee Motion’’), reprinted in App. 99-276. EAJA provides that:

Except as otherwise specifically provided by statute,

a court shall award to a prevailing party other than

the United States fees and other expenses TTT incurred by that party in any civil action TTT brought

by or against the United States TTT 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). Appellees cited three reasons to

support their claim as ‘‘prevailing parties’’ under EAJA: (1)

the District Court’s preliminary injunction ‘‘prohibiting

[NSF’s] dissipation of the tens of millions of dollars in unlawful taxes they exacted’’; (2) the court’s partial summary

judgment on ‘‘the ‘central issue’ in the litigation’’; and (3) the

fact that the lawsuit was the catalyst for NSF to ‘‘do away

with the Preservation Assessment collections altogether.’’

Fee Motion at 20, App. 120. In opposition to the motion,

NSF argued that appellees were ‘‘not ‘prevailing parties’ for

purposes of EAJA, and their claim fails on that basis alone.’’

See Defendant NSF’s Opp. to Plaintiffs’ Motion for Award of

Attorneys’ Fees and Costs at 3 (‘‘NSF Opposition’’), reprinted

in App. 279. NSF also argued that appellees could not
7

prevail under EAJA because NSF’s legal position in the case

was ‘‘substantially justified.’’ Id. at 13-21, App. 289-97.

The District Court concluded that a fee award for appellees

was appropriate under EAJA. The court rejected the ‘‘catalyst theory’’ as a basis for fees, but found that the preliminary

injunction and partial summary judgment were sufficient to

make appellees ‘‘prevailing parties.’’ Fee Decision at 15-17,

App. 412-14. While the District Court was considering supplemental pleadings to determine the exact amount of money

that appellees were due, the Supreme Court decided Buckhannon. There, the Court rejected a fee request pursuant to

the Fair Housing Amendments Act and the Americans with

Disabilities Act where the underlying lawsuit became moot

when the state passed legislation to resolve the case. 532

U.S. at 601-02.

NSF then filed a ‘‘Notice of Filing’’ with the District Court

on June 13, 2001, suggesting that Buckhannon was relevant

to the legal construction of the term ‘‘prevailing parties’’ in

fee-shifting statutes. The District Court held to its position

that appellees had ‘‘prevailed,’’ stating that the decision in

Buckhannon was largely inapposite to the present case:

[W]hile Buckhannon may bolster this Court’s prior

rejection of Plaintiff’s catalyst theories by providing

a wholly new basis for doing so, the Court can find

nothing in Buckhannon and its limited progeny thus

far necessitating a different result; the preliminary

injunction and summary judgment awarded to [appellees] certainly constitute a ‘judicial imprimatur,’

and there was nothing ‘voluntary’ about [NSF]’s

compelled compliance with such ordered relief.

Fee Award at 2 n.1, App. 552. The District Court then

awarded $268,070 in attorney’s fees and $38,585 in costs to

appellees. Id. at 7, App. 557. NSF then filed a Notice of

Appeal with this court.

II. DISCUSSION

NSF claims that the District Court committed legal error

in construing EAJA’s ‘‘prevailing party’’ requirement. We
8

review this claim de novo. See Nat’l Ass’n of Mfrs. v. Dep’t

of Labor, 159 F.3d 597, 599 (D.C. Cir. 1998) (‘‘[W]e review an

award [under EAJA] de novo insofar as it rests on conclusions of law, such as an interpretation of the statutory terms

that define eligibility for an award.’’) (citation omitted). NSF

asks this court to reverse the award of fees and costs

awarded to appellees, because they are not eligible ‘‘prevailing parties’’ under EAJA.

A. Appellees’ Forfeiture Claim

Before addressing the merits of NSF’s appeal, we must

first consider whether NSF’s claim that appellees are not

‘‘prevailing parties’’ under EAJA is properly before this

court. Appellees contend that we should dismiss the appeal,

because NSF never argued before the District Court that

appellees were not ‘‘prevailing parties.’’ Br. of Appellees at

18-21. Thus, according to appellees, this claim has been

forfeited. We disagree.

We need not dwell long on this issue, because NSF’s reply

brief to this court convincingly refutes appellees’ claim:

[T]he issue of ‘‘prevailing party’’ status was raised

by NSF below. Although NSF’s opposition to plaintiffs’ motion for attorney’s fees concentrated on the

issue of substantial justification, the opposition preliminarily stated that ‘‘[p]laintiffs are TTT not ‘prevailing parties’ for purposes of EAJA, and their

claim fails on that basis alone.’’ Def. NSF’s Opp’n

to Pls.’ Mot. for Award of Atty’s Fees and Costs at 3

(App. 279). NSF argued that the district court’s

‘‘April 6th ruling was not merged into any final

judgment, and the ‘unconstitutional tax’ issue was

never litigated to finality,’’ depriving it of the opportunity to ‘‘exercise the right enjoyed by ‘nonprevailing’ parties to appeal.’’ Id. at 1 (App. 277).

NSF also subsequently filed a ‘‘Notice of Filing’’

with the district court, noting that Buckhannon

‘‘ ‘bears upon the construction of ‘‘prevailing party’’

for purposes of attorney fee-shifting statutes.’ ’’ See

Dis. Ct. Op. (Mar. 22, 2002) at 2 n.1 (App. 552).
9

Indeed, the district court specifically addressed and

decided the issue of ‘‘prevailing party’’ status in its

opinion, holding that ‘‘the preliminary injunction and

summary judgment awarded to Plaintiffs certainly

constitute a ‘judicial imprimatur,’ and there was

nothing ‘voluntary’ about Defendants’ compelled

compliance with such ordered relief.’’ Ibid.

Reply Br. of Appellant at 7-8.

In short, the record is clear that NSF raised the ‘‘prevailing party’’ issue with the District Court, the District Court

addressed the issue, and NSF preserved the issue in its

appeal to this court. Accordingly, we reject the contention

that NSF forfeited its right to challenge appellees’ prevailing

party status on appeal.

B. The Merits

The central issue in this case is whether, in light of

Buckhannon and Hewitt, the District Court erred in holding

that the vacated preliminary injunction and partial summary

judgment were sufficient to make appellees eligible for attorney’s fees under the EAJA.

The District Court found Buckhannon to be inapposite,

because, in the trial court’s view, the principal thrust of

Buckhannon is the Supreme Court’s judgment rejecting the

‘‘catalyst theory.’’ The plaintiff’s argument for fees in Buckhannon rested on the theory that the lawsuit led the state to

adopt intervening legislation that ultimately resolved the legal

dispute. The Court held that the litigant was not a ‘‘prevailing party,’’ because the lawsuit was resolved by virtue of what

the defendant did, not what the court ordered. In other

words, the enactment of the legislation ‘‘lack[ed] the necessary judicial imprimatur.’’ 532 U.S. at 605. Seizing on this

language, the District Court determined that its vacated

rulings bore the requisite judicial imprimatur and concluded

that this factual distinction limited the applicability of Buckhannon to the present case. Fee Award at 2 n.1, App. 552.

This view of Buckhannon is much too narrow.
10

Buckhannon is, first and foremost, about the meaning of

the term ‘‘prevailing party’’ in civil litigation under certain

fee-shifting statutes.1

 The first two sentences of the majority

opinion for the Court make this clear:

Numerous federal statutes allow courts to award

attorney’s fees and costs to the ‘‘prevailing party.’’

The question presented here is whether this term

includes a party that has failed to secure a judgment

on the merits or a court-ordered consent decree, but

has nonetheless achieved the desired result because

the lawsuit brought about a voluntary change in the

defendant’s conduct.

532 U.S. at 600. In addressing this issue, Buckhannon

embraces three core principles that form the basis for the

Court’s construction of ‘‘prevailing parties’’ under a feeshifting statute. First, in order to be a ‘‘prevailing party,’’ a

claimant must show that there has been ‘‘a court-ordered

‘chang[e] [in] the legal relationship between [the plaintiff] and

the defendant.’ ’’ Id. at 604 (citing Texas State Teachers

Ass’n. v. Garland Indep. School Dist., 489 U.S. 782, 792

(1989) (citing Hewitt, 482 U.S. at 760-761, and Rhodes v.

Stewart, 488 U.S. 1, 3-4 (1988))) (alterations in original).

Second,

the term ‘‘prevailing party[ ]’’ [is] a legal term of art.

Black’s Law Dictionary 1145 (7th ed.1999) defines

1 In Oil, Chemical & Atomic Workers International Union v.

Department of Energy, we held that ‘‘eligibility for an award of

attorney’s fees [under one statute] should be treated the same as

eligibility determinations made under other fee-shifting statutes

unless there is some good reason for doing otherwise.’’ 288 F.3d

452, 455 (D.C. Cir. 2002) (emphasis added). Appellants have offered no reason to treat eligibility under the EAJA differently from

eligibility under other fee-shifting statutes, including the statutes at

issue in Buckhannon. Like the other circuits that have considered

the issue, we therefore hold that Buckhannon applies to the definition of ‘‘prevailing party’’ under the EAJA. See Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002);

Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002).
11

‘‘prevailing party’’ as ‘‘[a] party in whose favor a

judgment is rendered, regardless of the amount of

damages awarded ¢in certain cases, the court will

award attorney’s fees to the prevailing party$. –

Also termed successful party.’’ This view that a

‘‘prevailing party’’ is one who has been awarded

some relief by the court can be distilled from our

prior cases.

532 U.S. at 603 (footnote omitted). Third, a claimant is not a

‘‘prevailing party’’ merely by virtue of having ‘‘acquired a

judicial pronouncement that the defendant has violated the

Constitution unaccompanied by ‘judicial relief.’’’ Id. at 606

(citing Hewitt, 482 U.S. at 760) (emphasis added).2

These principles underscore the Court’s judgment in Buckhannon rejecting the ‘‘catalyst theory,’’ but they also establish a framework for construing and applying the ‘‘prevailing

party’’ requirement more broadly. In applying these principles to the instant case, it is clear that appellees are not

‘‘prevailing parties’’ under EAJA, for neither the preliminary

injunction nor the partial summary judgment changed the

legal relationship between appellees and NSF in a way that

afforded appellees the relief that they sought.

As appellees concede, the sole effect of the preliminary

injunction was to prevent NSF from appropriating any money

already collected from the registration assessment. In other

words, the relief merely preserved the status quo pending

final adjudication of the case. And upon granting NSF’s

motion to dismiss the case, the District Court vacated the

preliminary injunction. In short, the preliminary injunction

did not change the legal relationship between the parties in a

way that afforded appellees the relief they sought in their

lawsuit.

The facts in this case are easily distinguishable from cases

in which we have found that ‘‘the subsequent mootness of the

2 We do not address here the application of Buckhannon to

administrative proceedings provided for by certain statutes. See

Moore v. District of Columbia, 907 F.2d 165 (D.C. Cir. 1990).
12

case [did not] necessarily alter the plaintiffs’ status as prevailing parties.’’ Nat’l Black Police Ass’n v. D.C. Bd. of Elections, 168 F.3d 525, 528 (D.C. Cir. 1999); Grano v. Barry, 783

F.2d 1104, 1108-09 (D.C. Cir. 1986). The specific relief

granted in those cases was concrete and could not be reversed despite a subsequent finding of mootness. In Grano,

for example, plaintiffs sought and won an injunction to delay

the demolition of a historical site until a public referendum

was held. 783 F.3d at 1108. That reprieve was unchanged

when the case was later declared moot, because the referendum in question had already occurred. The injunction produced a lasting change in the parties’ legal circumstances and

gave the plaintiffs the precise relief that they had sought.

That is not the case here. Appellees filed a lawsuit in order

to obtain a refund from NSF, but the preliminary injunction

did nothing to vindicate that claim.

Appellees’ claim fares no better with respect to the partial

summary judgment. That order merely declared that the

disputed Preservation Assessment was an unconstitutional

tax. The partial summary judgment did not afford appellees

any concrete relief, beyond this mere legal declaration. As

noted above, Buckhannon and Hewitt make it clear that a

mere ‘‘judicial pronouncement that the defendant has violated

the Constitution,’’ unaccompanied by ‘‘judicial relief,’’ is not

sufficient to make a claimant a ‘‘prevailing party.’’ Buckhannon, 532 U.S. at 606; Hewitt, 482 U.S. at 761. This type of

‘‘judicial decree’’ is not enough to warrant a fee award,

because it represents ‘‘not the end but the means’’ of the

litigation. Hewitt, 482 U.S. at 761. A declaration must

require ‘‘some action (or cessation of action) by the defendant

that the judgment produces – the payment of damages, or

specific performance or the termination of some conduct.’’

Id. The partial summary judgment in this case did not

achieve any such results.

In sum, neither the vacated preliminary injunction nor the

vacated partial summary judgment can justify an award of

fees in this case.
13

III. CONCLUSION

For the reasons given above, the judgments of the District

Court in favor of appellees are hereby reversed and the case

is dismissed.