Mabel A. Akers v. R. JAMES NICHOLSON, Secretary of Veterans Affairs

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.
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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.

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Appealed from: United States Court of Appeals for Veterans Claims
Judge William P. Greene, Jr.
Judge Jonathan R. Steinberg

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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)

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(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.
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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).
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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
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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
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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
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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
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