           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 00-1897

                                  GAYLE L. FANDRY , APPELLANT ,

                                                   V.


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


                      Before FARLEY, HOLDAWAY, and IVERS, Judges.

                                            ORDER

       Before the Court is the appellant's March 29, 2001, application for fees and expenses
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The appellant is the
surviving spouse of veteran Randall A. Fandry. On October 4, 2000, the appellant had filed a Notice
of Appeal from a July 7, 2000, decision of the Board of Veterans' Appeals (BVA or Board) that
denied her claims for service connection for the cause of the veteran's death and for entitlement to
dependent's educational assistance.

        Subsequent to that BVA decision, the Veterans Claims Assistance Act of 2000 (VCAA), Pub.
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), was enacted. Among other things, the VCAA
eliminated the well-grounded-claim requirement and modified the Secretary's duties to notify and
assist claimants. See generally VCAA, §§ 3, 4, 7; see also Holliday v. Principi, 14 Vet.App. 280,
284-86 (2001) (holding all sections of VCAA retroactive). On November 20, 2000, the Secretary
filed a motion to vacate the Board's decision and remand the appellant's claims for readjudication
based on the enactment of the VCAA and this Court's holding in Karnas v. Derwinski, 1 Vet.App.
308, 313 (1991), that generally, when a controlling law or regulation changes during the pendency
of a claim, the version most favorable to the appellant shall apply. The appellant responded on
February 23, 2001, stating that she "agrees that the [VCAA] should be the basis for the remand."
The Clerk of the Court issued an order granting the Secretary's motion and vacating the Board's
decision on March 6, 2001.

        The appellant filed a timely application for fees and expenses pursuant to EAJA on March
29, 2001. The Secretary filed a response in opposition, arguing, inter alia, that the appellant is not
a prevailing party within the meaning of EAJA because the remand was ordered as a result of an
intervening change in the governing law, and "not based on any error committed by the agency in
adjudicating [the a]ppellant's claim, nor was it the result of any review by the Court of an alleged
error." Secretary's April 24, 2001, Response at 6. The Secretary argued alternatively that even if the
appellant is a prevailing party, fees are not justified here because the position of the United States
was substantially justified. Id. at 11 (citing 28 U.S.C. § 2412(d)(1)(A)).
        The matter was subsequently submitted to a panel of the Court, and on July 5, 2001, the
parties were ordered to submit briefing addressing, inter alia, the effect of the May 29, 2001, decision
of the U.S. Supreme Court in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of
Health and Human Res., 121 S. Ct. 1835 (2001), on the appellant's status as prevailing party. In her
response, the appellant confines her discussion of Buckhannon to one sentence, stating that
Buckhannon "held that the catalyst theory is not a permissible basis for the award of attorneys fees
under the FHAA and ADA (Fair Housing Amendments Act of 1988 and the Americans with
Disabilities Act of 1990)." Appellant's October 9, 2001, Response at 3-4. She then proceeds to
argue that she is a prevailing party because she achieved her goal in appealing the case, which was
to obtain a remand, and, thus, under Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 490
U.S. 782 (1989), the relationship between her and VA was "materially altered." Id. at 4-5. With
regard to substantial justification, the appellant argues that under EAJA, the United States is required
to prove that its position was substantially justified and that VA has not met that burden here. Id.
at 6.

        In his response to the Court's briefing order, the Secretary argues that Buckhannon served to
"bolster and clarify previous holdings by that Court which would deny 'prevailing party' status to an
appellant, such as the one here, who has obtained a remand due solely to a change in law."
Secretary's November 2, 2001, Response at 5. Citing to Buckhannon, as well as Shalala v. Schaefer,
509 U.S. 292 (1993), the Secretary argues that in order to achieve prevailing party status, an
appellant must achieve relief on the merits of the claim, and that the litigation must be the factor that
brought about the change in the parties positions. Id. at 3-5. In characterizing the remand here as
a "Karnas remand," the Secretary states that the appellant is not a prevailing party because a
"'Karnas remand' is precipitated by matters independent from [the a]ppellant's lawsuit and does not
involve a substantive determination by this Court as to the merits of that lawsuit." Id. at 7. The
Secretary argues that because the Court did not make any substantive rulings on the merits of the
Board's decision, the "remand here was at most a technical success." Id. at 9, 22.

        In Sumner v. Principi, this Court considered whether EAJA fees were available to an
appellant whose claim was remanded by the Court, following notification from the Chairman of the
BVA to the Secretary that the Chairman was inclined to grant reconsideration of the Board's decision
and the Secretary's subsequent motion to remand the matter. __ Vet.App. __, No. 99-368 (Nov. 6,
2001) (en banc). In denying the application, the Court cited to language in Buckhannon that
conditions prevailing-party status on a party receiving "at least some relief on the merits of his
claim." Sumner, __ Vet.App. at __, slip op. at 7 (quoting Buckhannon, 121 S.Ct. at 1840). The
Sumner Court then held that "a remand does not constitute 'some relief on the merits' unless that
remand is predicated upon administrative error." __ Vet.App. at __, slip op. at 12. Applying the
principles of Buckhannon and Sumner, the Court recently held in Vaughn v. Principi, that an
appellant is precluded "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." Vaughn, __ Vet.App. __, __ No. 00-1534, slip. Op. at 3 (Nov. 9, 2001)




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        Here, the remand agreed to by the parties was predicated upon the change in law brought
about by the enactment of the VCAA. Like in Sumner and Vaughn, both supra, the Court made no
finding of administrative error nor did the Secretary acknowledge error. Accordingly, we hold that
a remand based solely upon the enactment of the VCAA does not confer prevailing party status
within the meaning of EAJA. See Vaughn, supra. Because the appellant is not a "prevailing party,"
we need not consider arguments relating to whether the position of the United States was
substantially justified. See 28 U.S.C . § 2412(d)(1)(B).

       Upon consideration of the foregoing, it is

       ORDERED that the appellant's application for attorney fees and expenses is denied.

DATED: November 19, 2001                                    PER CURIAM




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