           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                             No. 99-368

                                    W.T. SUMNER , APPELLANT ,

                                                 V.


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


                          On Appellant's Motion for Full Court Decision


    (Argued October 3, 2001                                      Decided November 6, 2001 )


       Clayte Binion, of Fort Worth, Texas, was on the pleadings for the appellant.

        Michele R. Katina, with whom Tim S. McClain, General Counsel; Ron Garvin, Assistant
General Counsel; Darryl A. Joe, Acting Deputy Assistant General Counsel; and Allyn L. Engelstein,
all of Washington, D.C., were on the pleadings, for the appellee.

       Kenneth M. Carpenter, of Topeka, Kansas, for the appellant and for the National
Organization of Veterans' Advocates as amicus curiae.

     Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY, IVERS, STEINBERG, and
GREENE, Judges.

       KRAMER, Chief Judge: Presently before the Court is the appellant's application for attorney
fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA). For the
reasons that follow, the Court will revoke the single-judge order previously issued in this case; will
issue this opinion in its stead; and will deny the appellant's EAJA application.


                                       I. BACKGROUND
       The appellant, through counsel, filed with this Court a timely Notice of Appeal (NOA) from
a January 20, 1999, Board of Veterans' Appeals (Board or BVA) decision that had denied his claim
for service connection for spinal meningitis. Subsequent to filing his NOA with the Court, the
appellant filed an unopposed motion for a stay of proceedings in his appeal; he notified the Court
that he had filed with the Board a motion for reconsideration (premised upon the discovery of new
and material evidence in the form of relevant records or reports of the service department concerned)
of the January 1999 BVA decision and requested that the Court stay proceedings in his case until he
received notification from the Board Chairman whether the Chairman was inclined to grant
reconsideration. In November 1999, the Court ordered, inter alia, that if the Board Chairman was
inclined to grant reconsideration of the January 1999 Board decision, the Secretary was to file with
the Court a motion for remand. See Cerullo v. Derwinski, 1 Vet.App. 195, 200 (1991).
       On February 4, 2000, pursuant to the Court's order, the Secretary filed an unopposed motion
to remand the January 1999 Board decision pursuant to Cerullo, supra. In that motion, the Secretary
indicated that the BVA had notified the appellant that the BVA Chairman was inclined to grant
reconsideration of the January 1999 Board decision and that the Board would take no further action
with regard to reconsideration pending this Court's transfer of jurisdiction over the appeal from the
Court to the Board. The Secretary thus requested that the Court "remand . . . to allow the BVA to
vacate its decision and to readjudicate [the a]ppellant's claim." Motion at 1. Accordingly, the Court,
on February 10, 2000, granted the Secretary's unopposed motion for remand pursuant to Cerullo,
supra, and ordered the immediate issuance of mandate.
       The appellant, on March 11, 2000, filed his application for an award of attorney fees and
expenses under the EAJA, seeking $6,444.66 in fees and expenses. The appellant asserted that he
was a prevailing party for purposes of an award of EAJA fees, inter alia, because, by obtaining a
remand of his claim, he had achieved success "on the merits." Application (Appl.) at 2. In the
alternative, the appellant asserted that he was a prevailing party under the catalyst theory. Id. The
appellant further asserted that: the position of the Secretary at the administrative level was not
substantially justified; there were no special circumstances that would make an award of EAJA fees
unjust; and his net worth did not exceed $2,000,000. Appl. at 3-4. The Secretary, on May 15, 2000,
filed a response in opposition to the appellant's EAJA application. In that response, the Secretary
asserted that the appellant was not a prevailing party under the EAJA because the Cerullo remand
that was granted in his appeal did not reflect that the appellant had succeeded in "any demonstrable
manner on the merits." Response (Resp.) at 5. In addition, the Secretary argued that the appellant
had failed to show that his appeal was the catalyst that had prompted the BVA to grant


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reconsideration and that the appellant thus was not a prevailing party under the catalyst theory. Resp.
at 6-7. The Secretary further asserted that his position at the administrative level was substantially
justified. Resp. at 9-10. The Secretary requested, therefore, that the Court deny the appellant's
EAJA application. Resp. at 10. The appellant subsequently filed a reply to the Secretary's response;
he in essence reiterated the assertions that he had made in his EAJA application.
        In an August 9, 2000, single-judge order, the Court dismissed the appellant's EAJA
application for lack of jurisdiction. In that order, the Court found that the appellant was not a
prevailing party for purposes of an award of EAJA fees because, under this Court's decision in
Lematta v. Brown, 8 Vet.App. 504, 507 (1996), "a Cerullo remand for reconsideration by the Board,
prior to the Court's review of the record on appeal or the filing of briefs, does not confer prevailing-
party status upon an appellant pursuant to a merits theory." Sumner v. Gober, U.S. Vet. App. No.
99-368 (ord. Aug. 9, 2000). The Court also stated that, even assuming that the appellant was a
prevailing party, the position of the Secretary at both the administrative and the litigation stages was
substantially justified. Id. at 3.
        Subsequent to the Court's August 9, 2000, dismissal of his EAJA application, the appellant
filed a timely motion for panel review and for panel referral to the full Court for a decision. In that
motion, the appellant argued, inter alia, that, pursuant to Shalala v. Schaefer, 509 U.S. 292 (1993),
and Stillwell v. Brown, 6 Vet.App. 291 (1994), he was a prevailing party because the Court's
February 2000 remand of his appeal qualified as success on the merits. Finally, the appellant
requested that the en banc Court reconsider and overrule Lematta because it was inconsistent with
Schaefer and Stillwell, both supra. In a September 29, 2000, order, the Court denied the appellant's
motion for a panel decision and denied as premature the appellant's motion for a full Court decision.
See U.S. VET . APP . R. 35(c) (motion for full Court decision may be filed after panel has denied
motion for panel decision or motion for panel reconsideration).
        On October 17, 2000, the appellant filed a motion for panel reconsideration or, in the
alternative, for a full Court decision. The appellant in essence reiterated the arguments that he had
made previously regarding Lematta and further stated that Lematta was in conflict with this Court's
decision in Swiney v. Gober, 14 Vet.App. 65, 69 (2000) (stating that "all of the appealed claims were
remanded, resolutions which materially changed the 'legal relationship' between the Secretary and


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the appellant, Texas State Teachers Ass'n [v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93
(1989)], from one of claim denial to a continuing adjudicatory process"). The Court, in an April 3,
2001, order, denied the appellant's motion for panel reconsideration.            Sumner v. Principi,
14 Vet.App. 309, 310 (2001) (en banc order). In its order, the Court stated that the resolution of
Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 121 S. Ct.
1835 (2001), may affect the disposition of the appellant's EAJA application. The Court ordered,
therefore, that the appellant's motion for a full Court decision be held in abeyance pending further
order of the Court. Sumner, supra. The Court further ordered that the appellant, within 30 days after
the U.S. Supreme Court's disposition of Buckhannon, supra, file and serve a legal memorandum
addressing the resolution of that proceeding as it pertains to his EAJA application. Sumner, supra.
Finally, the Court ordered that the Secretary file and serve a legal memorandum within 30 days after
service of the appellant's legal memorandum. Id. The U.S. Supreme Court, on May 29, 2001, issued
its opinion in Buckhannon, 121 S. Ct. 1835.
       The National Organization of Veterans' Advocates (NOVA), on June 27, 2001, filed an
unopposed motion for leave to file an amicus curiae brief. On that same date, the Court received
NOVA's brief. NOVA asserts that, to attain prevailing-party status, Buckhannon, 121 S. Ct. at 1839-
40, requires that the appellant receive "at least some relief on the merits" from the Court. Brief (Br.)
at 5. NOVA argues that the appellant received "relief on the merits of his claim" because the Court
"vacated" the January 20, 1999, BVA decision and remanded the matter to the Board for
readjudication. Br. at 6. (The Court notes that, contrary to NOVA's argument, the Court did not
vacate the BVA decision, but that circumstance is not relevant under our analysis of prevailing-party
status. See discussion, infra.) NOVA further argues that such a remand effects a "material alteration
of the legal relationship of the parties" because, as stated in Swiney, the appellant's case has gone
from "[claim] denial to a continuing adjudicatory process." Br. at 6-7. Finally, NOVA argues that
Lematta is inconsistent with Buckhannon because Lematta requires the appellant to "win the
litigation." Br. at 8. NOVA contends, therefore, that the full Court should overrule Lematta and
reverse the August 9, 2000, single-judge order that dismissed the appellant's EAJA application. Id.
       On June 28, 2001, the appellant, pursuant to the Court's April 2001 order, filed his legal
memorandum. The appellant contends that Buckhannon and Swiney together establish that the


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Court's Cerullo remand in the instant case is an enforceable judgment on the merits because, in
remanding the matter and requiring readjudication, the Court's order altered the legal relationship
between the appellant and the Secretary in that it allowed the appellant to avoid an adverse Court
decision and to reassert his claim before the BVA. Appellant's Memorandum (Mem.) at 9-10. The
appellant asserts: "It is assumed that the Court reviewed the underlying pleadings and the record and
determined there was no legal impediment preventing the Court from granting the Secretary's
[unopposed] motion [for] remand." Appellant's Mem. at 11. The appellant contends, therefore, that
the Court's remand order addressed the merits of his case and that he thus is a prevailing party for
purposes of an award of attorney fees and expenses under the EAJA. Id.
        The appellant next asserts that all that Buckhannon requires to attain prevailing-party status
under the success-on-the-merits theory is an enforceable judgment on the merits and that a Cerullo
remand meets this requirement. Appellant's Mem. at 12. The appellant contends in essence that
Lematta predicated success on the merits upon the filing of pleadings or other documents after the
appellant has filed his NOA with the Court and that, because "success on the merits under
Buckhannon was not predicated on the filing of pleadings or other documents by the appellant
subsequent to the filing of the appeal, Buckhannon effectively overrules Lematta." Appellant's Mem.
at 12-13. In addition, the appellant asserts that the catalyst theory is a moot issue because he prevails
under the success-on-the-merits theory. Id. Finally, the appellant reiterates his assertion that the
Secretary's position was not substantially justified at the administrative level. Id. The appellant
states that, on May 31, 2001, a VA regional office (RO), subsequent to the BVA's granting
reconsideration and remanding his claim to the RO, granted service connection for post-meningitis
headaches and assigned a 10% rating, effective April 11, 1995. Appellant's Mem. at 14 (Appendix
II). The appellant requests that the Court overrule Lematta; find that he is a prevailing party under
the EAJA and that the Secretary was not substantially justified at the administrative level; and grant
his application for an award of attorney fees and expenses under the EAJA.
        On July 27, 2001, pursuant to the Court's April 2001 order, the Secretary filed his legal
memorandum. The Secretary initially asserts that Buckhannon eliminates the catalyst theory as a
viable basis for attaining prevailing-party status. Secretary's Mem. at 4-5. The Secretary then asserts
that the Supreme Court's application of the merits theory set forth in Buckhannon is not inconsistent


                                                   5
with this Court's application of the merits theory in Lematta, and that Buckhannon thus does not
overrule Lematta. Secretary's Mem. at 5. The Secretary argues that the appellant's contention that
under Buckhannon an appellant is a prevailing party for purposes of the EAJA by merely obtaining
a Court remand judgment in the underlying case, thus altering the legal relationship of the parties,
ignores the key element in Buckhannon that there must be a judicial judgment on the merits.
Secretary's Mem. at 6. The Secretary contends that the Cerullo remand that was granted by this
Court in the underlying case was purely procedural and did not afford the appellant even "some relief
on the merits of his claim." Secretary's Mem. at 6-7. The Secretary asserts that this Court did not
make "'some [']substantive determination in [the] appeal, based upon the record, the parties'
pleadings, and the Court's['] precedent, that is favorable to the appellant.'" Id. (quoting Swiney, 14
Vet.App. at 69). The Secretary thus contends that the appellant did not achieve success "as a result
of the Court's consideration of the merits of his arguments" and, therefore, is not a prevailing party
under the merits theory for purposes of the EAJA. Id. at 7.
       Oral argument before the en banc Court was held in the instant case on October 3, 2001. By
holding that oral argument, the Court in essence granted the appellant's motion for a full Court
decision and also granted NOVA's motion to appear as amicus curiae. NOVA's brief will be filed
as of the date that it was received.


                                           II. ANALYSIS
       This Court may award reasonable attorney fees and expenses pursuant to 28 U.S.C.
§ 2412(d)(2)(F). In order for the Court to have jurisdiction over an EAJA application it must be filed
within the 30-day period set forth in 28 U.S.C. § 2412(d)(1)(B). In order for the appellant to be
eligible for an EAJA award, his application must contain: (1) a showing that the applicant is a
prevailing party within the meaning of the EAJA; (2) an assertion that the applicant is a party eligible
for an award under the EAJA because his or her net worth does not exceed $2,000,000 dollars; (3)
an allegation that the position of the Secretary at the administrative level or in litigation was not
substantially justified; and (4) an itemized statement of the fees and expenses sought. See 28 U.S.C.
§ 2412(d); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc); Chesser v. West, 11 Vet.App.
497, 499 (1998); Bazalo v. Brown, 9 Vet.App. 304, 308 (1996) (en banc), rev'd on other grounds


                                                   6
sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed. Cir. 1998). The pivotal issue in the instant case
is whether the appellant has shown that he is a prevailing party for purposes of an award of attorney
fees and expenses under the EAJA.
        To the extent that the appellant still may be asserting prevailing-party status based upon the
argument that his appeal of the January 1999 Board decision to this Court served as the catalyst for
the BVA Chairman's decision to grant reconsideration of his claim, as a result of Buckhannon that
issue has been eliminated from the instant case. See Thayer v. Principi, __ Vet.App. __, __, 2001
WL 1002743 at *7, No. 98-1782 (Sept. 4, 2001) (concluding that Buckhannon prevailing-party
definition should be applied to EAJA and that catalyst theory is not available to achieve prevailing-
party status in this Court). Although the holding of Buckhannon involved only the elimination of
the catalyst theory as a basis for achieving prevailing-party status, the language that the Supreme
Court used in restating its precedents with respect to the definition of prevailing party prompts this
Court now to reexamine our jurisprudence with regard to attaining prevailing-party status pursuant
to the success-on-the-merits theory under the EAJA and to clarify our caselaw.
        In Buckhannon, the Supreme Court initially noted the definition of "prevailing party" in fee-
shifting statutes as being one "'in whose favor a judgment is rendered, regardless of the amount of
damages awarded.'" Buckhannon, 121 S. Ct. at 1839 (quoting BLACK'S LAW DICTIONARY 1145 (7th
ed. 1999)). The Supreme Court then stated that the view that a prevailing party is "one who has been
awarded some relief by the court can be distilled from our prior cases." Id. In discussing such prior
cases, the Supreme Court reiterated that, in order to attain prevailing-party status, a party is required
to "'receive at least some relief on the merits of his claim.'" Id. at 1840 (quoting Hewitt v. Helms,
482 U.S. 755, 760 (1987) (holding that plaintiff was not prevailing party simply by virtue of court
of appeals favorable statement of law because such statement, which amounted at most to
interlocutory ruling that complaint should not have been dismissed for failure to state constitutional
claim but which afforded plaintiff no relief on merits of that claim, was "not the stuff of which legal
victories are made")). The Supreme Court found that, when taken together, its prior decisions
established 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 1840 (quoting Texas State Teachers Ass'n, 489 U.S. at 792 (holding that unions were


                                                   7
prevailing parties because they obtained judgment finding that school-district policy prohibiting
teachers from communicating with each other regarding union activities violated teachers' First
Amendment rights)); see also Farrar v. Hobby, 506 U.S. 103, 109-12 (1992) (Supreme Court held
that plaintiff who had been awarded even nominal damages obtained enforceable judgment that
reflected relief on merits of claim and thus made him prevailing party for fee purposes); Maher v.
Gagne, 448 U.S. 122, 125 (1980) (Supreme Court affirmed lower court judgment that Aid to
Families with Dependent Children (AFDC) plaintiff was prevailing party where she had sought, inter
alia, and obtained consent decree awarding substantial increase in standard allowance for work-
related expenses and right to prove actual work-related expenses exceeded standard allowance). The
Supreme Court stressed that the "merit[s]" requirement contained in its prior cases was not to be
abrogated because "'only when a party has prevailed on the merits of at least some of his claims . . .
has there been a determination of the 'substantial rights of the parties'.'" Buckhannon, 121 S. Ct. at
1841-42 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (per curiam) (holding that
plaintiffs were not prevailing parties because reversal of directed verdict against plaintiffs did not
involve any finding on merits of their underlying claims)).
       The Court's seminal decision on prevailing-party status is Stillwell, supra. In the appeal
underlying Stillwell, this Court granted the parties' joint motion for remand pursuant to Gregory v.
Brown, 5 Vet.App. 108 (1993) (remand ordered for Board to correct error made in applying
regulation, subsequently found to be unlawful, regarding surviving-spouse status; Court also ordered
BVA to make specific factual findings in course of readjudication). In rendering a decision on the
appellant's EAJA application in Stillwell, the Court, relying upon Schaefer, supra, held that the
appellant was a prevailing party because she had obtained just such a remand, i.e., a remand
predicated upon the BVA's application of an invalid regulation, even though the Court had not yet
declared (in Gregory, supra) that invalidity at the time that the Board had rendered its decision on
her claim. Stillwell, 6 Vet.App. at 300-01. The Court further held, however, that the Secretary was
substantially justified because his misinterpretation of the regulation at issue was "no more than a
reasonable mistake" and thus denied the appellant's EAJA application. Id. at 301-03. In the course
of reaching its decision in Stillwell, the Court stated that Schaefer directed that "a remand alone"
conferred prevailing-party status upon an appellant because a remand represented "'succe[ss] on any


                                                  8
significant issue in litigation which achieve[d] some of the benefit . . . sought in bringing suit.'"
Stillwell, 6 Vet.App. at 299-300 (quoting Schaefer, 509 U.S. at 302).
       In the underlying case in Schaefer, the plaintiff had been denied Social Security disability
benefits at the administrative level and subsequently had sought judicial review of that denial. See
Schaefer, 509 U.S. at 294. In the course of that judicial review, a district court, holding that, in
adjudicating the plaintiff's claim at the administrative level, the Secretary of Health and Human
Services (HHS) had committed three errors that the Secretary had to correct, reversed the negative
administrative decision and remanded the plaintiff's claim for disability benefits for correction of
those errors. Id. Thereafter, when rendering a decision on the plaintiff's EAJA application in
Schaefer, the Supreme Court held that the plaintiff was a prevailing party for EAJA purposes based
upon this underlying result. Id. at 301-02. Relying primarily upon the district court's recognition
of administrative errors, the entry of judgment, and the sequential obligation of the Secretary of HHS
to correct such errors, the Supreme Court held that the plaintiff was a prevailing party for EAJA
purposes because he "certainly [met the] description [of a prevailing party as one who] 'has
succeeded on any significant issue in litigation which achieve[d] some of the benefit . . . sought in
bringing suit.'" Id. (quoting Texas State Teachers Ass'n, 489 U.S. at 791-92).
       The Court notes in particular that the remands in both Schaefer and Stillwell were predicated
upon administrative error. Although the Court recognizes the breadth of the language in Stillwell,
supra, which, in and of itself, could be read to mean that prevailing-party status is achieved any time
that this Court remands an appellant's underlying appeal, that language must be read in the context
of why the remands were ordered in both Schaefer and Stillwell.
       In Lematta, which the appellant and NOVA urge this Court to find inconsistent with
Buckhannon and thus overrule, the Court addressed for the first time whether a remand pursuant to
Cerullo automatically makes an appellant a prevailing party under the EAJA. The Court initially
stated that "this Court has generally held that the prevailing[-]party requirement of the EAJA is
satisfied when a remand is ordered." Lematta, 8 Vet.App. at 507 (citing Stillwell, supra). In the
context of applying the success-on-the-merits theory for attaining prevailing-party status, the Court
posited that, at its most fundamental level, that theory would allow an appellant to qualify as a
prevailing party if the appellant "'w[on] the litigation.'" Id. at 508 (quoting Exeter-West Greenwich


                                                  9
Reg'l Sch. Dist. v. Pontarelli, 788 F.2d 47, 50 (1st Cir. 1986)). The Court stated, however, that,
pursuant to Stillwell, an "outright victory" is not always necessary and that it is sufficient for the
Court to make some "'substantive determination in [the] appeal, based upon the record, the parties'
pleadings, and the Court's' precedent, that is favorable to the appellant." Id. (quoting Stillwell,
6 Vet.App. at 301). The Court found the rule quoted in Stillwell to be consistent with the Supreme
Court's holding in Schaefer that a party to a lawsuit attains prevailing-party status "'[i]f the plaintiff
has succeeded on any significant issue in litigation which achieved some of the benefit . . . sought
in bringing the suit.'" Id. (quoting Schaefer, 509 U.S. at 302). Applying these guidelines, the Court
in Lematta held that, because its Cerullo remand order was issued before it had considered the merits
of the appellant's case, it had not made any substantive determinations with regard to the appellant's
appeal and that thus the appellant had failed to demonstrate that he was a prevailing party under the
merits theory for purposes of the EAJA. Id. at 509.
        Lematta also must be construed in the context in which it occurred. In the appeal underlying
Lematta, the Court, unlike the district court in Schaefer and this Court in Stillwell, did not order a
remand predicated upon error in the administrative adjudication process. Rather, in that underlying
appeal in Lematta, the Court had based its remand of the appellant's claim solely upon the Secretary's
remand motion, which requested that the Court return jurisdiction to the Board but which did not
acknowledge any administrative error. Lematta's reference to the filing of a record on appeal or any
pleadings by the parties was simply a case-specific reference to demonstrate that the Court had made
no remand based upon administrative error. Thus, given this context, the Lematta holding is not
inconsistent with either the Schaefer or Stillwell holdings.
        The appellant similarly argues that Lematta is inconsistent with Swiney, supra. In the
underlying appeal in Swiney, the Court reversed a Board decision as to one claim; vacated a Board
decision as two other claims on the grounds that the Board "had failed to apply and had incorrectly
applied, respectively, pertinent regulations"; and remanded the three matters for readjudication.
Swiney, 14 Vet.App. at 68. In the course of rendering a decision on the appellant's EAJA application
in Swiney, the Court stated that prevailing-party status is generally attained when an appellant obtains
a remand of his claim because the remand "'represents succe[ss] on any significant issue in litigation
which achieve[d] some of the benefit . . . sought in bringing suit.'" Id. at 69 (quoting Stillwell and


                                                   10
noting that Stillwell cited Schaefer). The Court further stated that "'[t]he touchstone of the prevailing
party inquiry must be the material alteration of the legal relationship of the parties in a manner which
Congress sought to promote in the fee statute.'" Id. (emphasis in Swiney omitted) (quoting Texas
State Teachers Ass'n, supra). In finding that the appellant in Swiney was a prevailing party for EAJA
purposes, the Court posited, inter alia, that the remands in the underlying case were "resolutions
which materially changed the 'legal relationship' between the Secretary and the appellant, Texas State
Teachers Ass'n, supra, from one of claim denial to a continuing adjudicatory process." Swiney, 14
Vet.App. at 69. Swiney also must be construed within its context, i.e., a Court remand predicated
upon administrative error. It is a remand such as that ordered in Swiney and in Schaefer, as well as
the other resolutions in the Supreme Court cases cited above, that result in a material alteration of
the legal relationship of the parties. Thus, contrary to the appellant's argument, Lematta and Swiney
are not inconsistent because in Lematta, unlike in Swiney, there was not a remand predicated upon
administrative error.
        The Court notes that in Buckhannon, supra, where prevailing-party status was not found,
there was no underlying court determination of any error. Further, an analysis of the cases cited in
Buckhannon is instructive. Applying the standard summarized in Buckhannon ("some relief on the
merits"), 121 S. Ct. at 1840-42, prevailing-party status was found by the Supreme Court in the
following situations: where the plaintiff had obtained an enforceable judgment for damages, Farrar,
supra; a judgment, based upon a court finding of a constitutional violation, that altered a school-
district prohibition on teacher communication regarding union activities, Texas State Teachers Ass'n,
supra; and a consent decree that provided an AFDC recipient with a substantial increase in the
standard allowance for work-related expenses and a right to prove that actual work-related expenses
exceeded the standard allowance, Maher, supra. Conversely, prevailing-party status was not found,
under the test reiterated in Buckhannon, where the plaintiff merely obtained a favorable statement
of law, Hewitt, supra, or a reversal of a directed verdict against him, Hanrahan, supra.
        This analysis reveals 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. See Buckhannon
and Schaefer, both supra. Both of these alternatives entail resolutions that materially alter the legal


                                                   11
relationship of the parties. See Texas State Teachers Ass'n and Swiney, both supra. Thus, a remand
does not constitute "some relief on the merits" unless that remand is predicated upon administrative
error. Buckhannon, 121 S. Ct. at 1840. Stillwell, Lematta, and Swiney, all supra, comport with this
construct. To the extent that any Court precedent could be construed as in conflict with our holding
today, we disavow that precedent.
       That standard has not been met in the instant case. The appellant's claim was remanded as
requested in the Secretary's unopposed motion for remand. Because nowhere in his motion did the
Secretary acknowledge error, and because, alternatively, in remanding the matter, the Court did not
recognize administrative error, the remand was not predicated upon administrative error. The
appellant thus is not a prevailing party. Accordingly, the Court denies the appellant's EAJA
application.


                                       III. CONCLUSION
       Upon consideration of the foregoing analysis, the August 9, 2000, single-judge order is
revoked; this opinion is issued in its stead; and the appellant's EAJA application is denied. It is so
ordered.




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