## United States Court of Appeals for the Federal Circuit

04-7132

MABEL A. AKERS, Claimant-Appellant,

v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

- - - - - - - - - - - - 03-7020

JOHN R. BRIDDELL, Claimant-Appellant,

v.
R. JAMES NICHOLSON, Secretar y of Veterans Affairs, Respondent-Appellee.

Richard R. James , of Glen Allen, Virginia, argued for claimant-appellant in 04- 7132. Kenneth M. Carpenter , Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant in 03-7020. Christian J. Moran , Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justic e, of Washington, DC, argued for respondent-appellee. On both briefs were Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director; Franklin E. White, Jr. , Assistant Director; and, Kyle E. Chadwick , Attorney. Of counsel in both 04-7132 and 03-7020 was Michael J. Timinski , Deputy Assistant General Counsel; Joshua S. Blume , Attorney, United States Departm ent of Veterans Affairs in 04-7132; and, Martin J. Sendek , Attorney, in 03-7020.Appealed from: United States Cour t of Appeals for Veterans Claims Judge William P. Greene, Jr. Judge Jonathan R. Steinberg

## United States Court of Appeals for the Federal Circuit
04-7132 MABEL A. AKERS, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

03-7020 JOHN R. BRIDDELL, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

__________________ _________ DECIDED: May 26, 2005

__________________ _________ Before MICHEL, Chief Judge , RADER and LINN, Circuit Judges

. RADER, Circuit Judge

. The United States Court of Appeals for Veterans Claims (Veterans Court) denied the applications of John R. Briddell and Mabel A. Aker s (collectively, appellants) for awards of attorney fees and expens es under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (2000). Both applications were denied on the ground that applicants were not “prevailing parties.” Akers v. Principi , 18 Vet. App. 430 (Table)(2003); Briddell v. Principi , 16 Vet. App. 267 (2002)

. Because neither appellant is a “prevailin g party” under the criteria establis hed by Buckhannon Board & Care Home, Inc. v. West Virginia D ep’t of Health & Human Res. , 532 U.S. 598, and by Vaughn v. Princip i , 336 F.3d 1351 (Fed. Cir. 2003), this court affirms both decisions.
I. Mr. Briddell’s c l aim arose whe n the Boa r d of Veterans Appe als (BVA), on March 18, 1999, denied, inter alia , an increase in the ratings for his should e r, back, and knee disab ilities. On September 28, 2000, t he Secretary of V e ter ans Affairs filed a motion asking for remand of Mr. Briddell’s shoulder claim “on the grounds that the Board had failed to consider, under Fenderson v. West , 12 Vet. App. 119 (1999), whether a staged rating was appropriate and to discuss the prov isions of 38 C.F.R. § 4.71a.” Briddell , 16 Vet. App. at 268. While the Secretary’s motion was pending, Congress enacted the Veterans Claims As sist ance Act (VCAA), 38 U.S.C. § 5100. The Veterans Court then ordered the Secretary to show cause to avoid rem and of Mr. Bridde ll’s c l aims for c onsideratio n in the lig ht of the V C AA. Id. at 269. The S e cretary instead made an unopposed motion for vacatur and remand, whic h the Veter ans Court granted. See Br iddell v. Gober , U.S. Vet. App. No. 99-1198, slip op. at 1- 2 (Dec. 21, 2000). The Veterans Court did not act on the Secr etary’s motion of September 28, 2000. Mr. Briddell now argues t hat the Secretary’s motion of September 28, 2000 was a “concess i on of BVA error” which, together with the r e mand that was subs equently -- but not consequently -- ordered by the Veter ans Cour t, makes him a “prevailing party” under EAJ A.

04-7132, 03-7020 2II. Ms. Akers sought waiver of a debt to the VA. This debt arose from her simultaneous collection of a VA pension and Soc i al Security dis ability benefits. Ms

. Akers received the VA pension in 1991 by virtue of her deceas ed husband’s service during the Korean wa r; the Social Security disab ility b e nefits as a result of a malicious beating she received shortly after applying for the pension. The VA contended that her Social Sec u rity benefits disqualified her from receiving the VA pensi on. Therefore, the VA request ed that she return to the VA the entire sum she had received as a pension. The VA re giona l offic e and the BVA d enie d the request for waiver. Later, Ms. Akers appealed t he denial t o the Veterans Court. While her appeal was pending, the Veterans Court decided, in a different case, that the BVA co uld consid er methods other than waiver to forgive a debt to the VA. See Gordon v. Principi , 15 Vet. App. 124 (2001)

. As a result, Ms. Akers and the VA jointly f iled a motion for remand, which was granted on Nov e mber 2, 2001. Ms. Akers then applied for an EAJA award, predicated on t h e remand. Because both the Briddell and Akers cases concern the basis for remand, and in turn whether that remand justifies “prevail ing party” status, this court addresses both appeals in this opinion. III. These cas e s require this court to dete rmine whether t he Veterans Court applie d the proper legal standard in determining “ p re vailing party” status under EAJA. This court reviews an interpretation of EAJA without deference. Jones v. Brown , 41 F.3d 634, 637 (Fed. Cir. 1994).

04-7132, 03-7020 3This court follows the Supreme Court's decision in Buckhannon in deciding prevailing party stat us under EAJA. See Brickwood Contractors, Inc. v. United States , 288 F.3d 1371, 1379 (F ed. Cir. 2002). In Buckhannon , the Supreme Court rejected the catalyst theory and set forth standards for a party to prevail under attorney fees statutes. Under the catalyst theory, a party “prevails” because the lawsuit bro u ght about a voluntary change in t he defendant's conduct. See B u ckhannon , 532 U.S. at 601. After examining its own precedents and statutor y language, the Court found the catalyst theory insufficient because “[i]t allows an awar d where there is no j udicially s anctioned change in the legal r e lations hip of the parties.” Id. at 605. The Court dismissed the catalyst theory because it would “ authorize[] feder al courts to award attorney's fees to a plaintiff wh o, by simply filin g a n onfrivolous but non etheless p o tentially meritless lawsu i t (it will neve r be determined), has reached t he ‘sou ght-after destination’ witho ut obtainin g any judicial relief.” Id. at 606. The Court then proceeded to construe the ph rase “prevailing party.” Finding that the term has a “clear meaning,” id. at 607, the Court stated that this language permits “the interim award of counsel fees only when a party has prevailed on the merits of at least some of his c l aims." Id. at 603 (quoting Hanrahan v. Ham p ton , 446 U.S. 754, 758 (1980) ( per curiam )) (emphasis added). T o qualify as “p revailing,” then, a party must have obtained a cour t-ordered consent dec ree based on a s e ttlement, an enforceable judgment on the merits, or an awar d of ev en “nominal” damages. See Buckhannon , 532 U.S. at 603-04. The Buckhannon cas e thus sets forth several standar ds to identify a prevailing party. Prevailing party status requires s o me judicial action t hat changes the legal

04-7132, 03-7020 4relationship between the parties on the merits of the claim. In other words, to prevail, a party must have received a judicial imprimatur tantamount to a judgm ent in favor of that party on the merits of the original claim. See id. at 605. That judici al action could take the form of a consent decree sett ling the claim in favor of the plaintiff, a judgment on the merits, or an award of damages.
IV. Mr. Briddell contends that he prevailed in his action because the Secretary of Veterans Affairs filed a motion admitting proc edural error that asked for remand of Mr. Bridde ll’s c l aim. The Veterans Court, however, remanded solely on the basis of the intervening passage of the VCAA, not t he Secret ary’s Septem ber 2000 motion. Briddell , 16 Vet. App. at 273. Because t he remand did not reach the merits of Mr. Bridde ll’s c a se, the remand also produced n o change in the lega l relationsh ip between Mr. Briddell and the Secr etary. Moreover, t he court gave no judicial appr oval to any alteration in that legal relationship. The parties simply agreed to a procedural remand

. Thus, t he remand in Mr. Briddell’s case does not qualify him as a “prevailing party” under the s t andards in B u ckhannon , becaus e it provides “only the opportunity for further adjudication.” Vaughn , 336 F.3d at 1356. Ms. Akers, like Mr. Bridde ll, contends that she was the “prevailin g party” in her action bec ause the Veterans Court granted a motion to remand. In her case, the intervening Gordon decision offered new possibilities f o r settling her debt. On that basis alone, the Veterans Court granted a joint motion to remand. The Veterans Court properly held that the rem and accorded Ms. Akers no judgm ent on the merits of her

case. Ake r s , slip op. at 2. As in Mr. Bri ddell’s cas e , Ms. Akers received only the

04-7132, 03-7020 5opportunity for further adjudi cation. Again, under the Buckhannon standards, the remand by the Veterans Court does not qualify her as a “prevailin g party.” To determine “prevailing party” status in these cases, the Veterans Court had no need or oc casion to go beyond the standar ds set forth by Buckhannon . The remand in Mr. Briddell’s c a se did not invo lve the mer i ts, but rather ar ose f r om a change in law. The Secretary accordingly consented to a remand. The need for a remand neither resulted from nor led to any immediate judici al action on the merits. Thus, the remand did not place a judicial imprimatur on any decis ion concerning the merits of Mr. Bridde ll’s claim. Ms. Akers also did not present any meri ts discuss ion in her applic ation f o r a remand. Instead, the parties jointly reques ted a remand based on a new possibility for settlement that arose from the Gordon case. Once again, the c ourt’s action in granting the joint motion for remand afforded no judicial imp r imatur on a change in the legal relationship between Ms. Akers and the Secret ary. The court granted the remand wit h no consideration of the meri ts of Ms. Akers’ s case. Neither of these cases meet the Buckhannon standards for a “prevailing party” as also described by this court in Vaughn . In Vaughn , the BVA had denied the request of Mr. Vaughn’s wife for survivor benefits. T he surviv or appealed the denial to the Veterans Court. While her appeal before that court was pending, Congress enacted the VCAA. Citing the need for re-adj udication in light of the VCAA, the parties filed a joint motion for remand. After the Veterans Co urt consented to the remand request, Mrs. Vaughn filed an EAJ A applic ation for attorney fees. On appeal, this court denied that request, stating that “the correct l egal standard, as articulated in Buckhannon , is that a

04-7132, 03-7020 6party must receive ‘at least some relie f on the merits of his claim.’” Vaughn , 331 F.3d at 1356-57 (citations omitted). To qualify as prevailing under EAJ A , Mrs. Vaughn wou l d have had t o have received som e judgment on t he merits, or a cons ent decree, or a “similar result[].” See id. at 1357. Mr. Briddell, like Mrs. Vaughn, has asked for attorney fees under EAJA bec ause his c a se was r e m anded f o r re-adjudication in light of new law, the V C AA. As in Vaughn , Mr. Briddell receiv ed no judgment on the merits or similar result. Ms. A k ers has asked for attorney fees under EAJA becaus e her case was remanded for consideration of new grounds made evident in Gord on . As in Vaughn , Ms. Akers received no j udgment on the meri ts, or any similar result . Under the rule of Vaughn , neither appellant “prevailed.” A boxer thrown out of the ring and then allowed back in to continue the fight has not pr evailed; similarly, nei ther appellant here meets the requirement s for “prevailing party” status. CONCLUS ION For the foregoing reasons, the Veterans Court holdings that appellants are not “prevailin g parties” under EAJA a r e affirmed. COSTS Each party shall bear its own costs. AFFIRMED

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