          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 97-280

                             STEPHEN L. MC MANAWAY , APPELLANT ,

                                                  V.


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


                      Before IVERS, STEINBERG, and GREENE, Judges.

                                            ORDER

        On September 29, 1999, the Court issued an opinion affirming an October 24, 1996, Board
of Veterans' Appeals (Board or BVA) decision, and, on December 13, 1999, the appellant filed,
through counsel, an appeal to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).
On January 23, 2001, the Federal Circuit granted the Secretary's motion for remand, vacated this
Court's September 1999 opinion, and remanded the matter to this Court for "further proceedings
consistent with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096"
(Nov. 9, 2000) (VCAA). On February 22, 2001, the Court withdrew its September 29, 1999,
opinion, vacated the Board decision, and remanded the matter for readjudication in light of the
VCAA. McManaway v. Principi, 14 Vet.App. 275, 276 (2001) (per curiam order).

       The appellant subsequently filed an application for reasonable attorney fees and expenses
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), both for work done before
this Court and for work done before the Federal Circuit. The Secretary then filed a motion to stay
proceedings pending a final resolution of Linville v. Principi, U.S. Vet. App. No. 97-66. The Court
denied this motion, McManaway v. Principi, 15 Vet. App. 150 (2001), and the Secretary filed a
response to the appellant's EAJA application. The appellant then filed a reply to the Secretary's
response. On August 13, 2002, the Court issued an order staying action on the EAJA application
pending resolution in Hensley v. Principi, No. 96-978, of the question of the jurisdiction of this
Court to consider the award of EAJA fees and expenses for representation provided before the
Federal Circuit in an appeal of a decision of this Court . This Court issued an opinion in Hensley,
supra, on November 27, 2002. Hensley v. Principi, __ Vet.App. __, No. 96-978, 2002 WL
31741279 (Nov. 27, 2002).

        In the instant case, the appellant's claim was remanded by this Court in accordance with
Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991), solely in light of the VCAA's enactment
subsequent to the Board decision on appeal. Because that "remand was not predicated upon
administrative error", Sumner v. Principi, 15 Vet.App. 256, 265 (2001) (en banc), the appellant is
not a prevailing party in the current fact situation under any possible test for attaining EAJA
prevailing-party status in this Court. See Vaughn v. Principi, 15 Vet.App. 277, 279-80 (2001) (per
curiam order) (holding that neither "merits" nor "inevitable-victory" test is available for attaining
EAJA prevailing-party status in this Court based on Court remand under Karnas, supra, as to pre-
VCAA BVA decision), appeal docketed, No. 02-7019 (Fed. Cir. Nov. 29, 2001); Thayer v. Principi,
15 Vet.App. 204, 211 (2001) (holding that "catalyst" test is not available for achieving prevailing-
party status in this Court); see also Brickwood Contractors, Inc. v. United States, 288 F.3d 1371,
1379 (Fed. Cir. 2002) (holding that "catalyst" test cannot serve as basis for attorney-fee awards
under the EAJA); McCormick v. Principi, 16 Vet.App. 407, 410-12 (2002); Briddell v. Principi,
16 Vet.App. 267, 271-75 (2002).

         Furthermore, although this Court recently held in Hensley, __ Vet.App. at __, 2002 WL
31741279, at *4-5, that it does have jurisdiction to award EAJA fees for work associated with an
appeal to the Federal Circuit, no such award for work at the Federal Circuit is in order here, because
there is no evidence in that court's remand order that the remand by that court was predicated upon
administrative error. Rather, the Federal Circuit's remand was predicated solely upon the enactment
of the VCAA. Thus, Vaughn and Thayer apply with equal force here. Accordingly, the Court holds
that prevailing-party status cannot be achieved "under the merits, catalyst, or inevitable-victory test
based on obtaining a remand from the Federal Circuit solely for readjudication in light of the
enactment of the VCAA" in an appeal from a pre-VCAA BVA decision, Vaughn, 15 Vet.App. at
280, and the Court will deny the EAJA application in full.

       Upon consideration of the foregoing, it is

       ORDERED that the appellant's EAJA application is DENIED.

DATED:         January 3, 2003                         PER CURIAM.




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