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. 

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 Justice, 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 Department of Veterans Affairs in 

04-7132; and, Martin J. Sendek, Attorney, in 03-7020. 
Appealed from: United States Court 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. Akers (collectively, appellants) 

for awards of attorney fees and expenses 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 

“prevailing party” under the criteria established by Buckhannon Board & Care Home, 

Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, and by Vaughn v. 

Principi, 336 F.3d 1351 (Fed. Cir. 2003), this court affirms both decisions. 

I. 

Mr. Briddell’s claim arose when the Board of Veterans Appeals (BVA), on 

March 18, 1999, denied, inter alia, an increase in the ratings for his shoulder, back, and 

knee disabilities. On September 28, 2000, the Secretary of Veterans 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 provisions 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 Assistance Act (VCAA), 38 U.S.C. § 5100. The 

Veterans Court then ordered the Secretary to show cause to avoid remand of Mr. 

Briddell’s claims for consideration in the light of the VCAA. Id. at 269. The Secretary 

instead made an unopposed motion for vacatur and remand, which the Veterans Court 

granted. See Briddell 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 Secretary’s motion of September 28, 

2000. Mr. Briddell now argues that the Secretary’s motion of September 28, 2000 was 

a “concession of BVA error” which, together with the remand that was subsequently --

but not consequently -- ordered by the Veterans Court, makes him a “prevailing party”

under EAJA. 

04-7132, 03-7020 2
II. 

Ms. Akers sought waiver of a debt to the VA. This debt arose from her 

simultaneous collection of a VA pension and Social Security disability benefits. Ms. 

Akers received the VA pension in 1991 by virtue of her deceased husband’s service 

during the Korean war; the Social Security disability benefits as a result of a malicious

beating she received shortly after applying for the pension. The VA contended that her

Social Security benefits disqualified her from receiving the VA pension. Therefore, the 

VA requested that she return to the VA the entire sum she had received as a pension.

The VA regional office and the BVA denied the request for waiver. Later, Ms. Akers 

appealed the denial to the Veterans Court. While her appeal was pending, the Veterans 

Court decided, in a different case, that the BVA could consider 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 filed a motion for remand, which was granted 

on November 2, 2001. Ms. Akers then applied for an EAJA award, predicated on the 

remand. 

 Because both the Briddell and Akers cases concern the basis for remand, and in 

turn whether that remand justifies “prevailing party” status, this court addresses both 

appeals in this opinion.

III. 

These cases require this court to determine whether the Veterans Court applied 

the proper legal standard in determining “prevailing 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 3
This court follows the Supreme Court's decision in Buckhannon in deciding 

prevailing party status under EAJA. See Brickwood Contractors, Inc. v. United States, 

288 F.3d 1371, 1379 (Fed. 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 brought about 

a voluntary change in the defendant's conduct. See Buckhannon, 532 U.S. at 601.

After examining its own precedents and statutory language, the Court found the catalyst

theory insufficient because “[i]t allows an award where there is no judicially sanctioned 

change in the legal relationship of the parties.” Id. at 605. The Court dismissed the 

catalyst theory because it would “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.” Id. at 606. 

The Court then proceeded to construe the phrase “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 claims." Id. at 603 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758 

(1980) (per curiam)) (emphasis added). To qualify as “prevailing,” then, a party must 

have obtained a court-ordered consent decree based on a settlement, an enforceable 

judgment on the merits, or an award of even “nominal” damages. See Buckhannon, 

532 U.S. at 603-04. 

The Buckhannon case thus sets forth several standards to identify a prevailing 

party. Prevailing party status requires some judicial action that changes the legal 

04-7132, 03-7020 4
relationship 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 judgment in favor of that 

party on the merits of the original claim. See id. at 605. That judicial action could take 

the form of a consent decree settling 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 procedural error that asked for remand of Mr.

Briddell’s claim. The Veterans Court, however, remanded solely on the basis of the

intervening passage of the VCAA, not the Secretary’s September 2000 motion. 

Briddell, 16 Vet. App. at 273. Because the remand did not reach the merits of Mr. 

Briddell’s case, the remand also produced no change in the legal relationship between

Mr. Briddell and the Secretary. Moreover, the court gave no judicial approval to any 

alteration in that legal relationship. The parties simply agreed to a procedural remand.

Thus, the remand in Mr. Briddell’s case does not qualify him as a “prevailing party” 

under the standards in Buckhannon, because it provides “only the opportunity for further 

adjudication.” Vaughn, 336 F.3d at 1356. 

Ms. Akers, like Mr. Briddell, contends that she was the “prevailing party” in her 

action because the Veterans Court granted a motion to remand. In her case, the 

intervening Gordon decision offered new possibilities for settling her debt. On that basis

alone, the Veterans Court granted a joint motion to remand. The Veterans Court

properly held that the remand accorded Ms. Akers no judgment on the merits of her 

case. Akers, slip op. at 2. As in Mr. Briddell’s case, Ms. Akers received only the 

04-7132, 03-7020 5
opportunity for further adjudication. Again, under the Buckhannon standards, the 

remand by the Veterans Court does not qualify her as a “prevailing party.” 

To determine “prevailing party” status in these cases, the Veterans Court had no 

need or occasion to go beyond the standards set forth by Buckhannon. The remand in 

Mr. Briddell’s case did not involve the merits, but rather arose from a change in law. 

The Secretary accordingly consented to a remand. The need for a remand neither

resulted from nor led to any immediate judicial action on the merits. Thus, the remand 

did not place a judicial imprimatur on any decision concerning the merits of Mr. 

Briddell’s claim. 

Ms. Akers also did not present any merits discussion in her application for a 

remand. Instead, the parties jointly requested a remand based on a new possibility for 

settlement that arose from the Gordon case. Once again, the court’s action in granting 

the joint motion for remand afforded no judicial imprimatur on a change in the legal 

relationship between Ms. Akers and the Secretary. The court granted the remand with 

no consideration of the merits 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. The survivor appealed the denial to the 

Veterans Court. While her appeal before that court was pending, Congress enacted the 

VCAA. Citing the need for re-adjudication in light of the VCAA, the parties filed a joint 

motion for remand. After the Veterans Court consented to the remand request, Mrs. 

Vaughn filed an EAJA application for attorney fees. On appeal, this court denied that 

request, stating that “the correct legal standard, as articulated in Buckhannon, is that a 

04-7132, 03-7020 6
party must receive ‘at least some relief on the merits of his claim.’” Vaughn, 331 F.3d at 

1356-57 (citations omitted). To qualify as prevailing under EAJA, Mrs. Vaughn would 

have had to have received some judgment on the merits, or a consent decree, or a 

“similar result[].” See id. at 1357. Mr. Briddell, like Mrs. Vaughn, has asked for attorney 

fees under EAJA because his case was remanded for re-adjudication in light of new 

law, the VCAA. As in Vaughn, Mr. Briddell received no judgment on the merits or 

similar result. Ms. Akers has asked for attorney fees under EAJA because her case

was remanded for consideration of new grounds made evident in Gordon. As in 

Vaughn, Ms. Akers received no judgment on the merits, 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 prevailed; similarly, neither appellant here 

meets the requirements for “prevailing party” status. 

CONCLUSION 

For the foregoing reasons, the Veterans Court holdings that appellants are not 

“prevailing parties” under EAJA are affirmed. 

COSTS 

Each party shall bear its own costs. 

AFFIRMED

04-7132, 03-7020 7