This version includes the errata dated 19Nov01-e

           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 00-1534

                                  SYBLE M. VAUGHN , APPELLANT ,

                                                  V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


             Before KRAMER, Chief Judge, and IVERS and STEINBERG, Judges.

                                             ORDER

       Pending before the Court is the appellant's application, through counsel, for an award of
attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA).

        The appellant, the widow of veteran Ed M. Vaughn, sought review, through counsel, of a
June 2, 2000, decision of the Board of Veterans' Appeals (Board or BVA) that, inter alia, had denied
Department of Veterans Affairs service connection for the cause of the veteran's death. On
November 30, 2000, the parties, citing the need for readjudication in light of the enactment, after the
June 2000 Board decision, of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (VCAA), filed a joint motion for remand of that service-connected-
death claim and further moved for dismissal of the remaining issues. The Court, via an order of the
Clerk of the Court, granted this motion on December 15, 2000. On January 4, 2001, the appellant
filed an EAJA application, seeking $1,270.03 in attorney fees and expenses. On April 6, 2001, the
Secretary filed a response in opposition to the appellant's application. The Secretary argues that the
appellant is not a prevailing party and, alternatively, that the Secretary's position at both the
administrative and litigation stages of the proceedings was substantially justified. See 28 U.S.C.
§ 2412(d)(1)(A). On April 19, 2001, the appellant filed a reply to the Secretary's response; the
appellant asserts both that she was a prevailing party (under both the so-called "merits" theory and
the so-called "inevitable victory" theory) and that the Secretary's position was not substantially
justified at the administrative level.

        On May 29, 2001, the United States Supreme Court issued an opinion in Buckhannon Board
& Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 121 S. Ct. 1835 (2001). In that
opinion, the U.S. Supreme Court held that the so-called "'catalyst theory' [was] not a permissible
basis" for the award of attorney fees under the Fair Housing Amendments Act of 1988, 42 U.S.C.
§ 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205. Buckhannon,
121 S. Ct. at 1843. The U.S. Supreme Court also reviewed and reiterated its prior precedents
defining the term "prevailing party" for purposes of several fee-shifting statutes. Id. at 1839-40. On
July 12, 2001, this Court ordered supplemental briefing from the parties on the issue of the
applicability and effect of Buckhannon, supra. Vaughn v. Principi, 15 Vet.App. 119 (2001) (per
curiam order). The appellant filed a supplemental brief on August 2, 2001, and the Secretary filed
a response on September 4, 2001. The appellant argues, inter alia, that she is a prevailing party
under both the catalyst theory and the merits theory because she received a remand of her claim. The
Secretary argues that the appellant is not a prevailing party under the catalyst theory, the merits
theory, or the inevitable-victory theory.

        In Thayer v. Principi, this Court recently concluded that "the definition of 'prevailing party'
set forth by the Supreme Court's opinion in Buckhannon" applies to our consideration of fee
applications under the EAJA. Thayer, __ Vet.App. ___, ___, No. 98-1782, 2001 WL 1002743
(Sept. 4, 2001). Therefore, "the catalyst theory is no longer available to achieve prevailing-party
status in this Court" under the EAJA. Ibid. Hence, we reject the appellant's contention that she is
a prevailing party in this case under the catalyst theory, as described in Thayer, supra.

        In Sumner v. Principi, the en banc Court has just issued an opinion denying an EAJA
application filed in a case where the appellant had received a remand pursuant to Cerullo
v. Derwinski, 1 Vet.App. 195 (1991), i.e., a remand to allow the BVA Chairman to grant BVA
reconsideration. Sumner, __ Vet.App. ___, ___, No. 99-368, slip op. at 12 (Nov. 6, 2001). The
Court concluded, as to the merits theory for attaining prevailing-party status, that "those Supreme
Court cases awarding prevailing-party status either require the ultimate receipt of a benefit that was
sought in bringing the litigation, i.e., the award of a benefit, or, at a minimum, a court remand
predicated upon administrative error." Id. at ___, slip op. at 11 (citing Buckhannon, supra, and
Shalala v. Schaefer, 509 U.S. 292 (1993)). The Court went on to deny prevailing-party status there
on the grounds that "a remand does not constitute 'some relief on the merits' unless that remand is
predicated upon administrative error", and that the appellant there had failed to demonstrate
prevailing-party status under that "merits" test because "[n]owhere is his motion did the Secretary
acknowledge error, and because, alternatively, in remanding the matter the Court did not recognize
administrative error." Ibid.

         The joint motion for remand in this case requested a remand "due to the recent enactment of
the [VCAA]". November 30, 2000, Joint Motion for Remand, at 2. The December 15, 2000, order
of the Clerk of the Court granted the motion and thus ordered a remand on this same ground. Given
that the sole basis for the remand was the enactment of the VCAA and that the Board's disposition
of this case had occurred before the enactment of the VCAA, there could not have been any Board
error with respect to the VCAA. Therefore, under the rationale and test enunciated in Sumner, the
Court rejects the appellant's arguments here that she has attained prevailing-party status under the
merits theory, due merely to her having received a remand in this case. See Sumner, __ Vet.App.
at ___, slip op. at 8-9 (explaining that, although Stillwell v. Brown, 6 Vet.App. 291, 299-300 (1994),
could be read to mean that "a remand alone" conferred prevailing-party status upon appellant,
Stillwell remand was in fact based on BVA error).



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        Finally, the appellant argues that she has obtained prevailing-party status under the
inevitable-victory test. The inevitable-victory test has been raised to the Court, but we have never
accepted it. See, e.g., Lematta v. Brown, 8 Vet.App. 504, 510 (1996) (citing Perket v. Secretary of
Health & Human Services, 905 F.2d 129, 132 (6th Cir. 1990), and holding that test inapplicable
where there had been no superseding legislation); Chandler v. Gober, 11 Vet.App. 6, 8 (1997)
(holding that test was not applicable where "victory has neither been attained nor assured"),
overruled in part by Miley v. Principi, 242 F.3d 1050, 1054 (Fed. Cir. 2001). Where a court has
remanded a case at the merits stage based solely on a statutory change, the inevitable-victory test
would allow for prevailing-party status where the appellant later, at the EAJA stage, could prove that
he would have prevailed at the merits stage absent that statutory change. See Perket, 905 F.2d at
133; see also Milton v. Shalala, 17 F.3d 812, 815 (5th Cir. 1994); Guglietti v. Secretary of Health
& Human Services, 900 F.2d 397, 402 (1st Cir. 1990). However, under Buckhannon, 121 S. Ct. at
1840, and Sumner, __ Vet.App. at __, slip op. at 11-12, that test can no longer be viable because it
lacks the critical requirement that a remand at the merits stage be predicated on administrative error.
Accordingly, we hold that the inevitable-victory test, just as the catalyst test, is not a permissible
basis for establishing prevailing-party status under the EAJA. See Buckhannon, Sumner, and Thayer,
all supra.

        Hence, we hold that Buckhannon, as applied to this Court by Sumner and Thayer, both supra,
precludes the appellant from achieving prevailing-party status under the merits, catalyst, or
inevitable-victory test based on obtaining a remand solely for readjudication in light of the enactment
of the VCAA and will deny her EAJA application. See Sumner, __ Vet.App. at ___, slip op. at 12
(denying EAJA application for failure to demonstrate prevailing-party status).

       Upon consideration of the foregoing, it is

       ORDERED that the appellant's application for EAJA fees and expenses is DENIED.

DATED: November 9, 2001                                        PER CURIAM.




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