Select Milk Producers, Inc. v. Johanns

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2005 Decided March 18, 2005

No. 04-5145

SELECT MILK PRODUCERS, INC., ET AL.,
APPELLEES

v.

MIKE JOHANNS, SECRETARY,
U.S. DEPARTMENT OF AGRICULTURE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 01cv00060)

Michael E. Robinson, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Michael Jay Singer, Attorney.
Susan K. Ullman, Attorney, entered an appearance.

Ryan K. Miltner argued the cause for appellees. With him
on the brief were Benjamin F. Yale, Kristine H. Reed, and
Donald M. Barnes.

Before: EDWARDS, HENDERSON, and RANDOLPH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge EDWARDS.
Dissenting opinion filed by Circuit Judge HENDERSON.
EDWARDS, Circuit Judge: The Secretary of Agriculture
(“Secretary”) appeals the District Court’s award of attorney’s
fees and costs to several milk marketing cooperatives under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2000).
The underlying litigation involved a dispute between the
cooperatives and the Secretary over the price of Class III
butterfat. The Secretary argues that the District Court erred in
concluding that the milk cooperatives were “prevailing parties”
under EAJA and in calculating the amount of the award.
The price of raw milk and its component parts is governed
by a complex regulatory regime known as the Federal Milk
Marketing Orders (“FMMO”). The Secretary administers the
FMMO pursuant to authority under the Agricultural Marketing
Agreement Act (“AMAA”), 7 U.S.C. § 601 et seq. (2000). Prior
to 2000, the price under the FMMO for Class III butterfat
(which is used to make hard cheeses) was the same as the price
for Class IV butterfat (which is used to make butter and nonfat
dry milk). In December of that year, the Secretary promulgated
a rule creating a separate price for Class III butterfat. The new
price, which was to be announced on February 2, 2001, would
have applied retroactively to transactions that had taken place in
January 2001. See Select Milk Producers, Inc. v. Veneman, 304
F. Supp. 2d 45, 48-49 (D.D.C. 2004).
Select Milk Producers, Inc., Continental Dairy Products,
Inc., and Elite Milk Producers, Inc. (collectively “Milk
Producers”) are milk marketing cooperatives, which would have
been subject to an immediate loss of an estimated $5,000,000 if
the new price for Class III butterfat had taken effect. Id. at 53.
On January 31, 2001, the District Court granted Milk Producers’
motion for a preliminary injunction enjoining the Secretary from
imposing a separate price for Class III butterfat. The
 3

Government did not appeal the preliminary injunction or
otherwise seek to defend its position. Instead, the Secretary
issued a new rule that did not include a separate price for Class
III butterfat. The parties then stipulated to dismissal of the case
as moot. See id. at 49-50.
On May 30, 2003, Milk Producers moved for an award of
attorney’s fees and costs under EAJA, which allows “prevailing
parties” to obtain expenses in litigation against the federal
government unless the Government’s position is substantially
justified. See 28 U.S.C. § 2412(d)(1)(A). The District Court
concluded that Milk Producers were “prevailing parties” under
EAJA and that the Secretary’s position in seeking to implement
the separate price for Class III butterfat was not substantially
justified. Therefore, the court held that Milk Producers were
entitled to attorney’s fees and costs. See Select Milk, 304 F.
Supp. 2d at 50-54. The District Court also determined that two
of Milk Producers’ attorneys should be compensated for some
of their hours at rates above EAJA’s statutory cap, because the
attorneys’ expertise in the milk marketing regime was a “special
factor” that warranted an enhanced fee under the statute. See id.
at 55-57.
On appeal, the Secretary argues that Milk Producers were
not “prevailing parties” under EAJA, and that, even if appellees
were “prevailing parties,” the District Court’s fee enhancement
award was an abuse of discretion. We affirm in part and reverse
in part. First, we find that the preliminary injunction at issue in
this case was a judgment that resulted in a court-ordered change
in the legal relationship between the parties and gave Milk
Producers the concrete and irreversible redress that they sought.
Given these circumstances, Milk Producers are “prevailing
parties” under EAJA. Second, we reverse the District Court’s
fee enhancement award. The established law of the circuit
makes it clear that legal expertise acquired through practice is
 4

not a “special factor” justifying an enhanced fee award under
EAJA.
I. BACKGROUND
The factual background of this case is recited at length in
the District Court’s opinion. See Select Milk Producers, Inc. v.
Veneman, 304 F. Supp. 2d 45 (D.D.C. 2004) (“Select Milk”).
Therefore, there is no need here for a detailed statement of facts.
Rather, we will focus on the facts that are relevant to the
disposition of this appeal.
The FMMO is a complex regulatory regime governing the
price of raw milk and its components. Id. at 48. In order to
amend market prices under the FMMO, the Secretary must
provide notice and an opportunity for a hearing. See 7 U.S.C. §
608c(3) (2000). Under agency regulations, before conducting
a hearing, the Secretary must first issue a Notice of Hearing,
which, among other things, delineates the scope of the hearing.
See 7 C.F.R. § 900.4(a) (2004). An Administrative Law Judge
(“ALJ”) then presides over the hearing, and, following the
hearing, the Secretary issues a decision on the proposed
amendment. See id. §§ 900.6, 900.13a. To become effective,
the amendment must be ratified by a designated number of milk
producers. See 7 U.S.C. § 608c(8), (9); 7 C.F.R. § 900.14.
In the Consolidated Appropriations Act of 2000, Pub. L.
No. 106-113, 113 Stat. 1501 (1999), Congress directed the
Secretary to conduct emergency rulemaking to amend the
FMMO. The statute instructed the Secretary to issue amended
regulations by December 1, 2000, and implement the resulting
formulas for milk pricing by January 1, 2001. See id. Div. B.,
§ 1008(a)(8), 113 Stat. 1536, 1501A-518. In response to this
legislation, the Secretary published a Notice of Hearing in the
Federal Register in April 2000, listing various proposals to
amend the FMMO. See Milk in the Northeast and Other
Marketing Areas; Notice of Hearing on Class III and Class IV
 5

Milk Pricing Formulas, 65 Fed. Reg. 20,094 (Apr. 14, 2000)
(“April Notice”). Prior to the April Notice, the price for Class
III butterfat had been the same as the price for Class IV
butterfat, and the notice did not propose the creation of a
separate price for Class III butterfat. In May 2000, an ALJ
presided over a five-day hearing on the proposed amendments.
During the hearing, one of the participants sought to raise the
possibility of imposing a separate price for Class III butterfat.
However, with the agreement of the Secretary’s representative,
the ALJ concluded that the issue was beyond the scope of the
hearing. See Select Milk, 304 F. Supp. 2d at 48.
Thus, it is uncontested that the Secretary never gave notice
of the possibility of a separate price for Class III butterfat, and
this matter was never pursued as an issue in the hearing before
the ALJ. Nonetheless, in December 2000, the Secretary issued
a tentative final decision that, inter alia, created a separate price
for Class III butterfat. See Milk in the Northeast and Other
Marketing Areas; Tentative Decision on Proposed Amendments
and Opportunity To File Written Exceptions to Tentative
Marketing Agreements and to Orders, 65 Fed. Reg. 76,832 (Dec.
7, 2000) (“Tentative Decision”). The new Class III butterfat
price was scheduled to be announced on February 2, 2001,
retroactive to January 1 of that year. See Select Milk, 304 F.
Supp. 2d at 49. After the Tentative Decision was approved by
more than the required number of dairy producers, the Secretary
promulgated an interim rule amending the FMMO in order to
implement the new prices. See Milk in the Northeast and Other
Marketing Areas; Interim Amendment of Orders, 65 Fed. Reg.
82,832 (Dec. 28, 2000) (“December 2000 rule”).
Milk Producers sought a preliminary injunction in District
Court to prevent the implementation of the December 2000 rule,
arguing that the Secretary had failed to comply with the notice
and hearing procedures for amending the FMMO as mandated
by the AMAA and agency regulations. On January 31, 2001,
 6

the District Court granted Milk Producers the relief they
requested, entering a preliminary injunction that enjoined the
Secretary from imposing the separate Class III butterfat price.
Select Milk Producers, Inc. v. Glickman, No. 01-00060 (D.D.C.
Jan. 31, 2001) (“2001 preliminary injunction”), reprinted in
Joint Appendix (“J.A.”) 30.
The consequences of the 2001 preliminary injunction were
significant. The District Court found that, absent the injunction,
“[t]he retroactive nature of the [Secretary’s] price announcement
meant that on February 2, 2001, [Milk Producers] would [have
been] subject to an immediate loss of an estimated $5,000,000.”
Select Milk, 304 F. Supp. 2d at 53. This loss would have
resulted from transactions between Milk Producers and third
parties that were consummated in January 2001. See id. The
District Court also found that, had the new Class III butterfat
price taken effect, Milk Producers’ loss could not have been
recovered. Thus, the trial court held that “a preliminary
injunction was the only effective relief [that Milk Producers]
could seek.” Id. And in avoiding the substantial monetary loss
that they had faced, Milk Producers received irreversible relief
by virtue of the preliminary injunction.
The District Court’s order embodying the preliminary
injunction was subject to immediate appellate review. The
Secretary chose not to appeal, however. Instead of pursuing any
further litigation in the matter, the Secretary acceded to the
preliminary injunction and conducted a new rulemaking. The
Secretary then issued a new regulation that took effect on April
1, 2003, and did not include a separate price for Class III
butterfat. See Milk in the Northeast and Other Marketing Areas:
Order Amending the Orders, 68 Fed. Reg. 7063 (Feb. 12, 2003).
Following issuance of the new rule, the parties stipulated to
dismissal of the case as moot. Select Milk Producers, Inc. v.
Veneman, No. 01-00060 (D.D.C. Apr. 30, 2003), reprinted in
J.A. 86.
 7

On May 20, 2003, Milk Producers moved for an award of
attorney’s fees and costs under EAJA, 28 U.S.C. § 2412 (2000).
The District Court concluded that the two key requirements for
awarding expenses under EAJA were satisfied: (1) Milk
Producers were “prevailing parties” under the statute, and (2) the
Secretary’s position in promulgating the separate Class III
butterfat price was not substantially justified. See Select Milk,
304 F. Supp. 2d at 50-54.
In calculating the amount of the award, the District Court
compensated most of Milk Producers’ attorneys’ time at the
normal statutory maximum rate of $125/hour adjusted upward
for cost of living. However, relying on 28 U.S.C. §
2412(d)(2)(A), which allows fee awards at rates beyond the
normal statutory cap where a “special factor” exists, the District
Court compensated attorney Benjamin Yale at $325/hour and
attorney Donald Barnes at $385/hour for one-third of the hours
they spent working toward obtaining the preliminary injunction.
The District Court concluded that these hours met the “special
factor” exception, because Yale and Barnes had special
expertise in the federal milk marketing regime and that, with
regard to one-third of the hours the attorneys spent working
toward the preliminary injunction, their specialized skills were
necessary to advance the litigation. See Select Milk, 304 F.
Supp. 2d at 55-57. In reaching this conclusion, the District
Court rested solely on findings that Yale and Barnes had
acquired expertise in the complex milk marketing regime
through years of practice. See id. at 57. In total, the District
Court awarded Milk Producers $101,266.83 – comprising
$98,381.22 in attorney’s fees and $2,885.61 in costs. Id. at 60.
On appeal, the Secretary does not contest the District
Court’s conclusion that the separate price for Class III butterfat
was not substantially justified. Instead, the Secretary argues that
the District Court misconstrued EAJA when it concluded that
Milk Producers were “prevailing parties.” The Secretary also
 8

contends that, even if Milk Producers were prevailing parties,
the District Court erred in awarding enhanced fees to attorneys
Yale and Barnes.
II. ANALYSIS
A. The “Prevailing Party” Requirement of EAJA
EAJA provides, in relevant part, that
a court shall award to a prevailing party other than the
United States fees and other expenses . . . incurred by that
party in any civil action . . . including proceedings for
judicial review of agency action, brought by or against the
United States in any court having jurisdiction of that action,
unless the court finds that the position of the United States
was substantially justified or that special circumstances
make an award unjust.
28 U.S.C. § 2412(d)(1)(A). The Secretary claims that the
District Court committed legal error in holding that Milk
Producers satisfied EAJA’s “prevailing party” requirement. We
review this claim de novo. See Truckers United for Safety v.
Mead, 329 F.3d 891, 894 (D.C. Cir. 2003); Thomas v. Nat’l Sci.
Found., 330 F.3d 486, 491 (D.C. Cir. 2003) (“Thomas”).
1. Defining “Prevailing Parties” Under EAJA
The Government’s argument in this case appears to be
premised on an assumption that, under the Supreme Court’s
decision in Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532 U.S.
598 (2001) (“Buckhannon”), and this court’s subsequent
decision in Thomas, a preliminary injunction can never
transform a party in whose favor the injunction is issued into a
“prevailing party” under EAJA. See Appellant’s Br. at 10.
Indeed, in arguing that “[Milk Producers] received only a
preliminary injunction, but no ‘enforceable judgment on the
merits’ or ‘court-ordered consent decree,’” id. at 14 (emphasis
 9

added), the Government comes close to suggesting that we
should adopt a per se rule that a preliminary injunction can
never support a claim for fees under EAJA. We reject this view,
because it rests on faulty constructions of EAJA, Buckhannon,
and Thomas.
EAJA is one of a number of federal statutes that allows
courts to award attorney’s fees and costs to the “prevailing
party.” In Buckhannon, the Supreme Court considered whether
the term “prevailing party” in federal fee-shifting statutes
“includes a party that has failed to secure a judgment on the
merits or a court-ordered consent decree, but has nonetheless
achieved the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct.” Buckhannon, 532
U.S. at 600. Prior to Buckhannon, most courts of appeals had
recognized the “catalyst theory,” pursuant to which such a
voluntary change in the defendant’s conduct was sufficient to
render the plaintiff a “prevailing party.” Id. at 601-02 & n.3
(citing cases). Buckhannon rejected this approach and explained
that a “‘prevailing party’ is one who has been awarded some
relief by the court.” Id. at 603. The Court thus held that the
“catalyst theory” improperly “allows an award when there is no
judicially sanctioned change in the legal relationship of the
parties.” Id. at 605. Although the fee-shifting statutes at issue
in Buckhannon were provisions of the Fair Housing
Amendments Act, 42 U.S.C. § 3613(c)(2), and the Americans
with Disabilities Act, 42 U.S.C. § 12205, see id. at 603, it is now
clear that Buckhannon’s construction of “prevailing party” also
applies to fee claims arising under EAJA. See Thomas, 330 F.3d
at 492.
Although Buckhannon decisively rejected the “catalyst
theory,” the Court clearly did not adopt a rule that plaintiffs
could only be deemed “prevailing parties” for fee-shifting
purposes if they obtained a final judgment on the merits of a
suit. Indeed, as counsel for the Secretary correctly
 10

acknowledged at oral argument, see Recording of Oral
Argument at 27:51-29:22, the decision in Buckhannon left no
doubt that a plaintiff need not obtain a judicial determination on
the merits in order to be considered a “prevailing party.” On
this point, the Court explained:
In addition to judgments on the merits, we have held that
settlement agreements enforced through a consent decree
may serve as the basis for an award of attorney’s fees.
Although a consent decree does not always include an
admission of liability by the defendant, it nonetheless is a
court-ordered “chang[e] [in] the legal relationship between
[the plaintiff] and the defendant.”
Buckhannon, 532 U.S. at 604 (quoting Tex. State Teachers Ass’n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989))
(alterations in original) (additional citations omitted). In short,
the holding in Buckhannon embraces the possibility that, under
certain circumstances, a preliminary injunction, like a consent
decree, may result in a court-ordered change in the legal
relationship between the parties that is sufficient to make the
plaintiff a “prevailing party” under a fee-shifting statute like
EAJA. Therefore, Buckhannon surely does not endorse a per se
rule that a preliminary injunction can never transform a party in
whose favor the injunction is issued into a “prevailing party”
under EAJA.
Likewise, the Government is wrong in suggesting that our
decision in Thomas holds that there are no circumstances under
which a preliminary injunction can serve as the basis for
deeming plaintiffs “prevailing parties” under federal fee-shifting
statutes. In Thomas, plaintiffs sued an independent federal
agency, the National Science Foundation (“NSF”), over Internet
domain registration fees. The District Court entered a
preliminary injunction prohibiting NSF from “‘crediting,
spending, obligating, or using any of the money collected for,
placed into, or taken from’” a fund that included the registration
 11

fees at issue, pending the final adjudication of the case. Thomas,
330 F.3d at 489 (quoting District Court’s preliminary
injunction). The District Court also awarded plaintiffs partial
summary judgment, determining that the collection of fees was
unconstitutional. However, before the District Court entered
final judgment or addressed plaintiffs’ claim for relief, Congress
passed a law that cured the constitutional violation in the
collection of the registration fees, and the District Court granted
NSF’s motion to dismiss the case as moot. See id. at 489-90.
The Thomas plaintiffs then filed a request for expenses
under EAJA, and the District Court held that the plaintiffs were
“prevailing parties” entitled to fees. Id. at 488. This court
reversed, concluding that neither the preliminary injunction nor
the partial summary judgment at issue changed the legal
relationship between the parties so as to render the plaintiffs
“prevailing parties.” Id. at 493. We noted that
the sole effect of the preliminary injunction was to prevent
NSF from appropriating any money already collected from
the registration assessment . . . . In short, the preliminary
injunction did not change the legal relationship between the
parties in a way that afforded [plaintiffs] the relief they
sought in their lawsuit.
Id.
Quite clearly, Thomas established no per se rule that a
preliminary injunction can never serve as the basis for deeming
a plaintiff a “prevailing party” under EAJA. Rather, Thomas
held that, in the particular circumstances of that case, plaintiffs
could not satisfy the “prevailing party” requirement, because the
preliminary injunction at issue had not changed the legal
relationship between the parties. Thomas did not suggest that,
in a dispute such as the one now before us, where a preliminary
injunction effected a substantial change in the legal relationship
between the parties and provided plaintiffs with concrete and
 12

irreversible relief, plaintiffs could not be considered “prevailing
parties.”
We are not alone in the view that Buckhannon does not
reject the possibility that preliminary injunctions may be
sufficient in some certain circumstances to render plaintiffs
“prevailing parties” under federal fee-shifting statutes. Both the
Sixth Circuit and the Ninth Circuit adopted this position in
decisions issued after Buckhannon. See Dubuc v. Green Oak
Township, 312 F.3d 736, 753-54 & n.8 (6th Cir. 2002) (noting
Buckhannon’s rejection of the “catalyst theory,” but explaining
that preliminary injunctions can suffice to satisfy the “prevailing
party” requirement under certain circumstances); Watson v.
County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002), cert.
denied, 538 U.S. 923 (2003) (“A preliminary injunction issued
by a judge carries all the ‘judicial imprimatur’ necessary to
satisfy Buckhannon.”). But see Smyth v. Rivero, 282 F.3d 268,
276-77 & n.9 (4th Cir. 2002) (apparently adopting a per se
rule). We think it is clear that neither Buckhannon nor Thomas
endorse a per se rule that a preliminary injunction can never
transform a party in whose favor the injunction is issued into a
“prevailing party” under EAJA. Such a position simply does not
follow logically from the Court’s indication in Buckhannon that
a plaintiff need not obtain a final judicial determination on the
merits in order to be considered a “prevailing party.” See
Buckhannon, 532 U.S. at 604.
2. Applying Buckhannon and Thomas to the Facts of this
Case
Our decision in Thomas relies on Buckhannon to develop a
framework for determining whether plaintiffs are “prevailing
parties.” Applying the Thomas framework to the facts of this
case, we conclude that Milk Producers were “prevailing parties”
under EAJA.
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In Thomas, we explained that Buckhannon embraces three
core principles for construing the term “prevailing party” in
federal fee-shifting statutes:
First, in order to be a prevailing party, a claimant must
show that there has been a court-ordered change in the legal
relationship between the plaintiff and the defendant.
(Citing Buckhannon, 532 U.S. at 604.)
Second, a prevailing party is a party in whose favor a
judgment is rendered, regardless of the amount of damages
awarded. (Citing Buckhannon, 532 U.S. at 603.)
Third, a claimant is not a prevailing party merely by virtue
of having acquired a judicial pronouncement
unaccompanied by judicial relief. (Citing Buckhannon, 532
U.S. at 606.)
See Thomas, 330 F.3d at 492-93 (discussing these factors).
In this case, plaintiffs satisfy all three Thomas factors. First,
there was a court-ordered change in the legal relationship
between Milk Producers and the Secretary. The trial court’s
preliminary injunction blocked enforcement of the new
regulation that had been promulgated by the Secretary in
December 2000. As a result, Milk Producers were never
required to operate under a market regime with a separate price
for Class III butterfat. In addition, the court-ordered relief
secured by Milk Producers was concrete and irreversible as of
February 2, 2001. The District Court stated that, because the
2001 preliminary injunction vitiated the December 2000 rule,
Milk Producers saved an estimated $5,000,000 that they would
have otherwise been forced to pay when the new price for Class
III butterfat took effect on February 2, 2001, retroactive to
January 1, 2001. See Select Milk, 304 F. Supp. 2d at 53 (citing
Milk Producers’ motion for preliminary injunction).
 14

Neither the Secretary’s briefs nor oral argument to this court
purported to contradict the District Court’s conclusion that, as
a direct result of the 2001 preliminary injunction, Milk
Producers saved a substantial sum of money. See Recording of
Oral Argument at 2:37-3:57. The Secretary’s counsel also
conceded that any money Milk Producers saved was permanent.
See id. at 4:00-:09. Therefore, like the benefit plaintiffs receive
through court-approved consent decrees, the relief that Milk
Producers received in this case was “the product of, and bears
the sanction of, judicial action in the lawsuit.” Buckhannon, 532
U.S. at 618 (Scalia, J., concurring).
This case is similar to situations in which we have found
that the subsequent mootness of a case does not necessarily alter
the plaintiffs’ status as prevailing parties. See, e.g., Nat’l Black
Police Ass’n v. D.C. Bd. of Elections, 168 F.3d 525, 528 (D.C.
Cir. 1999); Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C. Cir.
1986). As we noted in Thomas,
[t]he specific relief granted in [Nat’l Black Police Ass’n and
Grano] was concrete and could not be reversed despite a
subsequent finding of mootness. In Grano, for example,
plaintiffs sought and won an injunction to delay the
demolition of a historical site until a public referendum was
held. 783 F.2d at 1108. That reprieve was unchanged when
the case was later declared moot, because the referendum in
question had already occurred. The injunction produced a
lasting change in the parties’ legal circumstances and gave
the plaintiffs the precise relief that they had sought.
Thomas, 330 F.3d at 493. The plaintiffs in Thomas differed
from those in Nat’l Black Police Ass’n and Grano and were
found not to be “prevailing parties,” because the Thomas
plaintiffs “filed a lawsuit in order to obtain a refund from [the
National Science Foundation], but the preliminary injunction did
nothing to vindicate that claim.” Id. Here, however, just as was
the case for the plaintiffs in Grano, Milk Producers’ claim was
 15

fully vindicated by the court-ordered change in the parties’
relationship. And as Thomas noted in its discussion of Nat’l
Black Police Ass’n and Grano, it does not matter that this case
became moot after the court-ordered change in the parties’
relationship. Thomas, 330 F.3d at 493.
Nat’l Black Police Ass’n and Grano differ from this case in
that the plaintiffs in those cases received final judgments on the
merits of their claims, whereas the plaintiffs here secured relief
through a preliminary injunction. Nonetheless, it is noteworthy
here that, in awarding a preliminary injunction to Milk
Producers, the District Court found that
plaintiffs were likely to succeed on the merits of their
claims [because] “the Secretary . . . clearly did not give fair
notice to the industry.”
Select Milk, 304 F. Supp. 2d at 49 (quoting hearing on the 2001
preliminary injunction). Just as the Government did not appeal
from the District Court’s holding that the Secretary’s position in
imposing the separate Class III butterfat price was not
substantially justified, neither does the Government take issue
with the District Court’s finding that Milk Producers
undoubtedly would have succeeded on the merits. In other
words, this is not a case in which a preliminary injunction was
based less on the trial court’s view of the merits than on a
perceived hardship to the plaintiff. See Serono Labs., Inc. v.
Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998) (discussing
the four factors that a court must balance on a sliding scale in
considering a request for a preliminary injunction). Rather,
Milk Producers secured a preliminary injunction in this case
largely because their likelihood of success on the merits was
never seriously in doubt.
The dissent disagrees with our holding that the 2001
preliminary injunction resulted in a court-ordered change in the
legal relationship between Milk Producers and the Secretary,
 16

because, according to the dissent, in this case the preliminary
injunction did “nothing more than preserv[e] the status quo.”
But, as we explained above, the 2001 preliminary injunction
provided concrete and irreversible judicial relief to Milk
Producers based on the District Court’s conclusion that Milk
Producers were likely to prevail on the merits. In these
circumstances, the dissent’s argument that the 2001 preliminary
injunction did not alter the status quo – based on its formalistic
resort to the definition of the status quo as “the last peaceable
uncontested status existing between the parties before the
dispute developed” – is beside the point. Whatever semantic
spin one wishes to put on it, the 2001 preliminary injunction
resulted in an irreversible and substantial monetary savings to
Milk Producers based on the District Court’s assessment of the
merits of Milk Producers’ claim. Clearly, then, the 2001
preliminary injunction was a court-ordered change in the legal
relationship between the parties.
Having concluded that the 2001 preliminary injunction was
a court-ordered change in the legal relationship between Milk
Producers and the Secretary, as required by the first Thomas
factor, we turn to consider the second and third Thomas factors.
We hold that they too were satisfied in this case.
The 2001 preliminary injunction was a judgment rendered
in favor of Milk Producers, thus meeting the second Thomas
factor. The term “judgment” includes “a decree and any order
from which an appeal lies.” BLACK’S LAW DICTIONARY 846
(7th ed. 1999) (citing FED . R. CIV. P. 54). And it is well
established that preliminary injunctions are appealable orders
under 28 U.S.C. § 1292(a)(1). See, e.g., El Paso Natural Gas
Co. v. Neztsosie, 526 U.S. 473, 482 (1999). Nothing in Thomas
indicates that we meant to depart from the ordinary definition of
“judgment” in determining whether plaintiffs have satisfied the
second part of the “prevailing party” framework. See Thomas,
330 F.3d at 493. The 2001 preliminary injunction meets the
 17

legal definition of a judgment, and there is no dispute that it was
rendered in Milk Producers’ favor. Therefore, Milk Producers
have satisfied the second Thomas factor.
Finally, the 2001 preliminary injunction surely provided
Milk Producers with “judicial relief,” as required by the third
Thomas factor. The same edition of Black’s Law Dictionary
that the Supreme Court cited in Buckhannon, 532 U.S. at 603,
defines relief as “redress or benefit, esp. equitable in nature
(such as an injunction or specific performance) that a party asks
of a court.” BLACK’S LAW DICTIONARY, supra at 1293
(emphasis added). In this case, Milk Producers asked the
District Court for equitable relief in the form of a preliminary
injunction that would enjoin the implementation of the
December 2000 rule before the separate price for Class III
butterfat took retroactive effect. When the District Court issued
the injunction, it granted Milk Producers the precise relief that
they had requested. This satisfied the third Thomas factor.
In holding that Milk Producers were “prevailing parties”
under EAJA, we note that this is not a case in which the
Government voluntarily changed its ways before judicial action
was taken. If the Government had acted to moot this case
through voluntary cessation before there was a judicially
sanctioned change in the legal relationship of the parties, Milk
Producers would not have been “prevailing parties.” This would
be so, because, as the Court noted in Buckhannon, a defendant’s
“voluntary change in conduct, although perhaps accomplishing
what the plaintiff sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change. Our precedents
thus counsel against holding that the term ‘prevailing party’
authorizes an award of attorney’s fees without a corresponding
alteration in the legal relationship of the parties.” 532 U.S. at
605. However, the record in this case demonstrates that the
District Court’s injunction, not the Secretary’s voluntary change
in conduct, afforded Milk Producers the relief they sought – a
 18

savings of an estimated $5,000,000 and an order barring the
Secretary from enforcing the new rule imposing a separate price
for Class III butterfat.
We also note that our decision comports with the well-
recognized principle that, normally, when a losing party is
blocked from appealing an adverse judgment or order because
the case becomes moot due to happenstance, the court will
vacate the disputed judgment or order. See U.S. Bancorp
Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994)
(“Bancorp”). “A party who seeks review of the merits of an
adverse ruling, but is frustrated by the vagaries of circumstance,
ought not in fairness be forced to acquiesce in the judgment.”
Id. at 25. In applying this principle, however, the Supreme
Court has made it clear that “[t]he principal condition to which
[a court should look] is whether the party seeking relief from the
judgment below caused the mootness by voluntary action.” Id.
at 24. See also N. Cal. Power Agency v. Nuclear Regulatory
Comm’n, 393 F.3d 223, 225 (D.C. Cir. 2004) (construing
Bancorp to mean that “vacatur in moot cases should be
determined by considerations of ‘fairness’ and ‘justice’”). Thus,
“vacatur is usually inappropriate when ‘the party seeking relief
from the judgment below caused the mootness by voluntary
action.’” Nat’l Black Police Ass’n v. District of Columbia, 108
F.3d 346, 351 (D.C. Cir. 1997) (quoting Bancorp, 513 U.S. at
24); N. Cal. Power Agency, 393 F.3d at 225. Indeed, the
Supreme Court has made it clear that even “[w]here mootness
results from settlement, . . . the losing party has voluntarily
forfeited his legal remedy by the ordinary processes of appeal or
certiorari, thereby surrendering his claim to the equitable
remedy of vacatur.” Bancorp, 513 U.S. at 25. Just as it is not
unfair to deny the remedy of vacatur to a party whose voluntary
action moots a case, it is not somehow unfair here to conclude
that Milk Producers were “prevailing parties” when the
Government voluntarily forfeited its right to appeal the
 19

injunction and voluntarily elected to moot the case after judicial
action was taken against the Government.
In sum, we hold that the District Court correctly concluded
that Milk Producers were “prevailing parties” under EAJA. The
Secretary has not contested the District Court’s finding that the
Secretary’s position in creating a separate price for Class III
butterfat was not substantially justified. Therefore, we affirm
the District Court’s decision that Milk Producers are entitled to
attorney’s fees and costs. We now turn to the question as to
whether the District Court properly granted an enhancement in
the hourly fees awarded to two of Milk Producers’ attorneys.
B. The Fee Enhancement
EAJA provides that “attorney fees shall not be awarded in
excess of $125 per hour unless the court determines that an
increase in the cost of living or a special factor, such as the
limited availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii).
Here, the District Court concluded that a “special factor”
justified an enhancement in the hourly rates awarded to
attorneys Yale and Barnes for one-third of the time they spent
working toward obtaining the preliminary injunction. We
review the District Court’s enhancement award for abuse of
discretion. See Pierce v. Underwood, 487 U.S. 552, 571 (1988).
We conclude that the District Court abused its discretion in
awarding the enhanced fee, because Milk Producers failed to
establish that either Yale or Barnes had “‘some distinctive
knowledge or specialized skill needful for the litigation in
question.’” Truckers United, 329 F.3d at 894 (quoting
Underwood, 487 U.S. at 572).
In Underwood, the Supreme Court explained that the
reference to the “limited availability of qualified attorneys” in
§ 2412(d)(2)(A)(ii) “must refer to attorneys ‘qualified for the
proceedings’ in some specialized sense, rather than just in their
 20

general legal competence.” Underwood, 487 U.S. at 572. To
qualify for compensation at enhanced hourly rates under this
standard, an attorney must possess “some distinctive knowledge
or specialized skill needful for the litigation in question,” which
can include “an identifiable practice specialty such as patent
law, or knowledge of foreign law or language.” Id. The Court
further explained that “the other ‘special factors’ envisioned by
the exception [to EAJA’s normal maximum hourly rate] must be
such as are not of broad and general application.” Id. at 573.
The difficulty or undesirability of the case, the work and ability
of counsel, and the results obtained do not qualify as “special
factors” under the statute. Id.
Applying Underwood, we have made clear that an attorney
cannot be awarded enhanced fees under the “special factor”
exception based solely on expertise the lawyer acquired through
practice in a specific area of administrative law. As we stated in
F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996),
while “lawyers practicing administrative law typically develop
expertise in a particular regulated industry, whether energy,
communications, railroads, or firearms . . . they usually gain this
expertise from experience, not from the specialized training
justifying fee enhancement.” Emphasizing that nothing in the
text or legislative history of EAJA suggests that Congress
intended to make “all lawyers practicing administrative law in
technical fields” eligible for a fee enhancement, we concluded
that “expertise acquired through practice” was not a “special
factor” that could warrant an enhanced fee. Id. at 598-99.
In this case, the District Court found that attorneys Yale and
Barnes had “specialized knowledge” of the “extremely
complex” federal milk marketing regime. Select Milk, 304 F.
Supp. 2d at 55-56. The District Court further found that this
specialized knowledge was “needful for the litigation in
question” with respect to one-third of the hours that Yale and
Barnes spent working toward obtaining the preliminary
 21

injunction. The court thus held that Yale and Barnes were
entitled to compensation at enhanced rates for those hours. Id.
at 57. The fundamental flaw in this analysis is that the
justification the District Court offered for concluding that Yale
and Barnes had “specialized knowledge” was the expertise the
attorneys had acquired through practice. See id. at 57
(“Attorney Yale specializes in the representation of dairy farms
and dairy cooperatives . . . . Attorney Barnes has spent over
three decades representing dairy cooperatives on issues relating
to the AMAA.”). As explained above, under the clear precedent
of this circuit, such expertise acquired through practice in a
particular field of administrative law is insufficient to justify an
enhanced fee award under the “special factor” exception to
EAJA’s normal cap on attorney’s fees. See F.J. Vollmer, 102
F.3d at 598.
The District Court did also note that Yale “worked in the
dairy industry prior to becoming an attorney.” Select Milk, 304
F. Supp. 2d at 57. But the District Court merely mentioned this
fact, failing to explain how any knowledge that Yale acquired
from his previous work in the dairy industry was needful for the
litigation in question – a precondition for a court to find that a
“special factor” exists warranting fee enhancement under EAJA.
See Truckers United, 329 F.3d at 896. Because the only relevant
expertise identified by the District Court was expertise Yale and
Barnes acquired through years of practice in a field of
administrative law, there was no justification for an enhanced
fee award under EAJA. The District Court’s contrary
conclusion was an abuse of discretion. See id. at 894.
III. CONCLUSION
The District Court’s judgment is affirmed in part and
reversed in part. For the reasons stated above, we affirm the
District Court’s conclusion that Milk Producers were “prevailing
parties” entitled to attorney’s fees and costs under EAJA.
However, we reverse the District Court’s determination that
 22

attorneys Yale and Barnes were entitled to enhanced fees for
one-third of the hours they worked toward obtaining the 2001
preliminary injunction. The case will be remanded to the
District Court so that it can adjust the attorney’s fees award as
required by this decision.
So ordered.
 HENDERSON , Circuit Judge, dissenting: As does the majority,
I believe that the district court erred by enhancing the attorney’s
fee award, made pursuant to the Equal Access to Justice Act
(EAJA), see 28 U.S.C. § 2412(a) & (d), to Select Milk
Producers, Inc., Continental Dairy Products, Inc. and Elite Milk
Producers, Inc. (collectively, Milk Producers) based on their
counsel’s familiarity with the arcana of the federal milk
regulations. See Zuber v. Allen, 396 U.S. 168, 172 (1969)
(observing “[o]nce again this Court must traverse the labyrinth
of the federal milk marketing regulation provisions”);
Queensboro Farms Prods., Inc. v. Wickard, 137 F.2d 969, 974
(2d Cir. 1943) (“[T]he ‘milk problem’ is exquisitely
complicated.”). I would not reach this issue, however, because
I believe the district court erred in awarding any attorney’s fees
to the Milk Producers. Whether a party can be a “prevailing
party” under a fee-shifting statute by obtaining preliminary
injunctive relief is one that has divided the circuits—some say
yes, some say no. I do not think we need to give a categorical
answer to the question—even assuming preliminary injunctive
relief can support “prevailing party” status, the Milk Producers
do not qualify. Accordingly, because I would reverse the district
court’s award, I respectfully dissent.
I.
In various fee-shifting statutes such as the EAJA, the Congress
has supplanted the American Rule—requiring a litigant to pay
his own way, win or lose—by authorizing the award of fees and
costs to the “prevailing party.” See generally Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260-61 n.33 (1975)
(listing over 25 statutes authorizing attorney’s fees in favor of
prevailing party). The circuits that have considered whether this
term includes a party that obtains preliminary injunctive relief
have, with one exception, used as their polestar the United States
Supreme Court’s decision in Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598
(2001) [hereinafter Buckhannon]. Interpreting two similar fee-
shifting statutes—section 3613 of the Fair Housing
 2

Amendments Act of 1988, 42 U.S.C. § 3613(c)(2), and section
12205 of the Americans With Disabilities Act, 42 U.S.C.
§ 12205—the Supreme Court rejected the “catalyst theory”
under which several circuit courts had concluded that “a plaintiff
is a ‘prevailing party’ if it achieves the desired result because the
lawsuit brought about a voluntary change in the defendant’s
conduct.”1 Buckhannon, 532 U.S. at 601-02. The Court first
observed that the Congress, in describing the type of litigant
eligible for an award, used a term—“prevailing party”—with a
well-known legal meaning, i.e., “one who has been awarded
some relief by the court.” Id. at 603. Noting that “ ‘[r]espect for
ordinary language requires that a plaintiff receive at least some
relief on the merits of his claim before he can be said to
prevail,’ ” id. (quoting Hewitt v. Helms, 482 U.S. 755, 760
(1987)) (alteration in Buckhannon), it reaffirmed that its earlier
holdings had satisfied the test because the plaintiffs in those
cases had “received a judgment on the merits” or secured a
settlement agreement enforced by a consent decree. Id. at 605.
It also emphasized, however, that it had declined to award fees
“where the plaintiff ha[d] . . . acquired a judicial pronouncement
that the defendant has violated the Constitution unaccompanied
by ‘judicial relief,’ ” id. at 605-06 (quoting Hewitt, 482 U.S. at
760) (emphasis in Buckhannon), and had “[n]ever . . . awarded
attorney’s fees for a nonjudicial alteration of actual

1
In Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy,
288 F.3d 452 (D.C. Cir. 2002), we held that “eligibility for an award
of attorney’s fees [under one fee-shifting statute] should be treated the
same as eligibility determinations made under other fee-shifting
statutes unless there is some good reason for doing otherwise.” Id. at
455; see Buckhannon, 532 U.S. at 603 n.4 (noting “[w]e have
interpreted . . . fee-shifting provisions consistently” (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 n.7 (1983))). In Thomas v. Nat’l Sci.
Found., 330 F.3d 486 (D.C. Cir. 2003), we held that “Buckhannon
applies to the definition of ‘prevailing parties’ under the EAJA.” Id.
at 492 n.1 (citations omitted).
 3

circumstances.” Id. at 606 (internal quotation marks & citation
omitted). Regarding a “settlement agreement[] enforced through
a consent decree,” id. at 604, the Court explained that it
constituted “relief on the merits” because a consent decree is a
“ court-ordered ‘chang[e] [in] the legal relationship between [the
plaintiff] and the defendant.’ ” Id. (quoting Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989);
citing Hewitt, 482 U.S. at 760-61; Rhodes v. Stewart, 488 U.S.
1, 3-4 (1988) (per curiam)) (alterations in Buckhannon). The
“catalyst” party did not meet the test, however, because “[a]
defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiffs sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the change.”
Buckhannon, 532 U.S. at 605.
While the circuits have had differing views on whether a party
can prevail based on preliminary injunctive relief under
Buckhannon, compare John T. v. Del. County Intermediate Unit,
318 F.3d 545, 559-60 (3d Cir. 2003); Smyth v. Rivero, 282 F.3d
268, 276-77 & n.9 (4th Cir.), cert. denied, 537 U.S. 825 (2002),
with Dubuc v. Green Oak Township, 312 F.3d 736, 753-54 &
n.8 (6th Cir. 2002); Watson v. County of Riverside, 300 F.3d
1092, 1096 (9th Cir. 2002), cert. denied, 538 U.S. 923 (2003),
no circuit has engaged in robust analysis. Those that have said
“no” have concluded that preliminary injunctive relief does not
make the recipient a “prevailing party” because the relief is not
based solely on the merits of the claims advanced in the lawsuit.
See John T., 318 F.3d at 559-60; Smyth, 282 F.3d at 276-77 &
n.9. The Third Circuit, for example, explained that the
preliminary injunction at issue was not “merits-based,” but
instead “was designed to maintain the status quo during the
course of proceedings.” John T., 318 F.3d at 558-59 (internal
quotation marks & citation omitted). Those in the opposing
camp, by contrast, have emphasized the specific relief that the
preliminary injunction in fact provided. The Ninth Circuit, for
example, concluded that the preliminary injunction at issue
 4

carried a sufficient “ ‘judicial imprimatur’ ” because “[i]n this
case, the County was prohibited from introducing Watson’s
report at the termination hearing for one reason and for one
reason only: because Judge Timlin said so.” Watson, 300 F.3d
at 1096; cf. Dubuc, 312 F.3d at 754 (rejecting fee award based
on preliminary injunction because plaintiff’s “goal in this suit
[was] not to obtain a temporary certificate of occupancy, which
the injunction provided, but to seek damages for alleged
violations of [his] constitutional rights”).
For our part, we held last term that the Court in Buckhannon
did not simply reject the catalyst theory but established a
framework—built on three “core principles”—“for construing
and applying the ‘prevailing party’ requirement.” Thomas v.
Nat’l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir. 2003). The
first, and most central, principle is that a litigant must
demonstrate “a court-ordered chang[e] [in] the legal relationship
between [the plaintiff] and the defendant,” Buckhannon, 532
U.S. at 604 (internal quotation marks & citations omitted), in
order to qualify as a “prevailing party” under a fee-shifting
statute. See Thomas, 330 F.3d at 492. The second is that
“prevailing party” means “ ‘ “[a] party in whose favor a
judgment is rendered, regardless of the amount of damages
awarded.” ’ ” Id. at 493 (quoting Buckhannon, 532 U.S. at 603
(in turn quoting BLACK ’ S LAW DICTIONARY 1145 (7th ed.
1999))) (alteration in Buckhannon). And the third is that a
litigant does not prevail “by virtue of having ‘acquired a judicial
pronouncement that the defendant has violated the Constitution
unaccompanied by “judicial relief.” ’ ” Thomas, 330 F.3d at
493 (quoting Buckhannon, 532 U.S. at 606 (in turn quoting &
citing Hewitt, 482 U.S. at 760)) (emphasis in Buckhannon). In
Thomas we concluded that, despite the plaintiffs having
obtained a preliminary injunction and a partial grant of summary
judgment, they failed to qualify as “prevailing parties” under the
EAJA because “neither the preliminary injunction nor the partial
summary judgment changed the legal relationship between
 5

appellees and [the National Science Foundation (NSF)] in a way
that afforded appellees the relief that they sought.” Thomas, 330
F.3d at 493. The preliminary injunction, which prevented the
NSF from “crediting, spending, obligating or using any of the
money collected for, placed into, or taken from” a certain
government fund, id. at 489 (internal quotation marks & citation
omitted), “merely preserved the status quo pending final
adjudication of the case” because it “did not change the legal
relationship between the parties in a way that afforded appellees
the relief they sought in their lawsuit.” Id. at 493. Its “sole
effect . . . was to prevent NSF from appropriating any money
already collected from the registration assessment.” Id. While
I have no quarrel with the methodology, I believe the majority
misapplies it here.
II.
A. “Court-Ordered Change” in Parties’
Legal Relationship
Distinguishing Thomas, the majority concludes that “there was
a court-ordered change in the legal relationship between Milk
Producers and the Secretary” because the preliminary injunction
“blocked enforcement” of the Secretary’s regulation and,
therefore, the Milk Producers never had to “operate under a
market regime with a separate price for Class III butterfat.”
Maj. Slip Op. at 13. But the injunction here simply served the
traditional “limited purpose” of a preliminary injunction, which
is to “merely preserve the relative positions of the parties until
a trial on the merits can be held.” Univ. of Tex. v. Camenisch,
451 U.S. 390, 395 (1981); see Dist. 50, United Mine Workers of
Am. v. Int’l Union, United Mine Workers of Am., 412 F.2d 165,
168 (D.C. Cir. 1969); see generally 11A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY K A N E, FEDERAL
PRACTICE AND PROCEDURE § 2947 (2d ed. 1992) (“[A]
preliminary injunction is an injunction to protect plaintiff from
irreparable injury and to preserve the court’s power to render a
 6

meaningful decision after a trial on the merits.”) [hereinafter
FEDERAL PRACTICE AND PROCEDURE]. Such a preliminary
injunction preserves the trial court’s power to adjudicate the
underlying dispute by maintaining the status quo ante, see
Camenisch, 451 U.S. at 395, or, simply, the status quo. See,
e.g., Consarc Corp. v. United States Treasury Dep’t, Office of
Foreign Assets Control, 71 F.3d 909, 913 (D.C. Cir. 1995)
(terms used interchangeably). And the “legal definition” of
status quo ante has a “clear meaning” in our circuit. See
Consarc Corp., 71 F.3d at 913.
Black’s Law Dictionary defines status quo to
mean “the existing state of things at any given
date” and offers the example “[s ]tatus quo ante
bellum” to mean “the state of things before the
war.” Black’s Law Dictionary 1264 (5th ed.
1979). Judicial precedent confirms that “[t]he
status quo is the last uncontested status which
preceded the pending controversy.”
Westinghouse Electric Corp. v. Free Sewing
Machine Co., 256 F.2d 806, 808 (7th Cir. 1958);
see also Litton Systems, Inc. v. Sundstrand
Corp., 750 F.2d 952, 961 (Fed. Cir. 1984).
Id. (alterations in Consarc Corp.); accord Dist. 50, United Mine
Workers of Am., 412 F.2d at 168. Had the district court intended
to give the Milk Producers “concrete and irreversible” relief,
Maj. Slip Op. at 13, rather than to preserve the status quo, it had
the procedure readily at hand to decide the merits by
consolidating the preliminary injunction hearing with the merits
hearing. See FED . R. CIV. P. 65(a)(2); Camenisch, 451 U.S. at
395. It did not do so.
The majority appears to disregard the temporary nature of the
injunctive relief by finding that it “saved” the Milk Producers a
“substantial sum of money.” Maj. Slip Op. at 14. It asserts that
the Secretary’s counsel conceded during oral argument that the
 7

Milk Producers’ savings were “permanent.” Id. at 14. Whether
or not the concession was made (a matter which, to me, is far
from certain), the savings were permanent only when viewed
from hindsight. The Milk Producers sought to enjoin
implementation of the separate Class III Butterfat price because
without an injunction, they asserted, they would suffer
irreparable injury in the form of lost revenue from butterfat.2
See Memorandum of Points & Authorities in Support of
Plaintiffs’ Motion for Temporary Restraining Order and/or
Preliminary Injunction & for Expedited Hearing, Jan. 19, 2001,
at 2, reprinted in Joint Appendix (J.A.) at 29b. The preliminary
injunction—which “enjoined the newly implemented amended
regulations, made affirmative changes to the order language
appearing [in the Federal Register], and restored the pricing
system in place prior to the implementation of the amended
regulations,” Select Milk Producers, Inc. v. Veneman, 304 F.
Supp.2d 45, 53 (D.D.C. 2004) (emphasis added)—prevented an
immediate monetary loss. To view, as the majority does, an
order that “restored” the status quo as awarding “permanent”
relief, however, requires a “look back” for it became permanent
only in light of events that unfolded two years later—i.e., the
Department’s February 12, 2003 publication of the Final Rule
omitting a separate Class III Butterfat price and the Milk
Producers’ dismissal of their suit in April 2003. The
preliminary injunction thus kept the Milk Producers from losing

2
Although the majority refers to the money involved as “savings,”
see Maj. Slip Op. at 13-14, in fact the Milk Producers, the sellers,
would have received reduced payments from their buyers had the
separate Class III Butterfat price gone into effect. See Memorandum
of Points & Authorities in Support of Plaintiffs’ Motion for Temporary
Restraining Order and/or Preliminary Injunction & for Expedited
Hearing, Jan. 19, 2001, at 2, reprinted in J.A. at 29b. The Milk
Producers did not “save” five million dollars as a result of the
preliminary injunction; they did not lose five million dollars in
revenue.
 8

money by simply restoring the regulatory landscape that existed
before the Secretary’s Interim Final Order until their lawsuit
became moot.
Nor does the subsequent mooting of the Milk Producers’
lawsuit—not by adjudication but by voluntary regulatory
change—bridge the gap between the preliminary relief granted
and the award of “irreversible” relief. Relying on our decisions
in Nat’l Black Police Ass’n v. D.C. Bd. of Elections, 168 F.3d
525 (D.C. Cir. 1999), and Grano v. Barry, 783 F.2d 1104 (D.C.
Cir. 1986), the majority asserts that this case is “similar to
situations in which we have found that the subsequent mootness
of a case does not necessarily alter the plaintiffs’ status as
prevailing parties.” Maj. Slip Op. at 14. But, as Thomas itself
noted, the “specific relief” granted in Nat’l Black Police Ass’n
and in Grano “was concrete and could not [have been] reversed
despite a subsequent finding of mootness.” 330 F.3d at 493. In
Nat’l Black Police Ass’n, we held that the plaintiffs qualified as
“prevailing parties” under 42 U.S.C. § 1988 because the district
court, after holding a five-day trial, “issued an injunction on the
grounds that the limitations [on campaign contributions]
unconstitutionally infringed the free speech rights of candidates
and the free association rights of contributors,” which, the court
said, constituted a “a real-world vindication of their First
Amendment rights.” 168 F.3d at 527-28. Similarly, in Grano,
we held that the plaintiffs qualified as “prevailing parties” under
42 U.S.C. § 1988 because their “success before the District
Court was clearly ‘on the merits’ ” and was in “no way
‘procedural’ ” in that the summary judgment they won had the
“external effect of postponing the razing of the tavern until the
election could be held.” 783 F.2d at 1109-10. Even more
recently, in Role Models Am., Inc. v. Brownlee, 353 F.3d 962
(D.C. Cir. 2004), we held that the plaintiff, a non-profit
educational organization, qualified as a prevailing party under
the EAJA by obtaining a permanent injunction which
“postpon[ed] conveyance of Fort Ritchie until the Secretary
 9

complie[d] with the relevant regulations.” Id. at 966. There we
distinguished Thomas on the ground that the plaintiff in Role
Models Am., unlike the Thomas plaintiff, obtained the “precise
relief it sought,” i.e., the “opportunity to compete for [the
property].” Id. The difference between Grano, Nat’l Black
Police Ass’n and Role Models Am., on the one hand, and
Thomas and this case, on the other, is easy to see: In Grano,
Nat’l Black Police Ass’n and Role Models Am., the plaintiffs
received relief on the merits, here as in Thomas, the plaintiffs
did not. Nor can it be said, as the majority does, that this case
is like Grano in that the “Milk Producers’ claim was fully
vindicated by the court-ordered change in the parties’
relationship.” Maj. Slip Op. at 14-15 (emphasis added). The
Grano plaintiffs’ claim was fully vindicated because the district
court, granting summary judgment in their favor, gave them
precisely what they sought: a delay. See 783 F.2d at 1107, 1109.
The Milk Producers, by contrast, did not sue the Secretary to
delay the regulation but to invalidate it. Thus, while the Grano
mootness resulted from the plaintiffs’ full vindication on the
merits—i.e., the ultimate passage of the initiative3 —here the
mootness resulted from the Secretary’s voluntary action—i.e.,
a new regulation without the challenged Class III Butterfat price.
In short, “the change in the parties’ relationship” in Grano was
court-ordered; here it was not.
The majority explicitly acknowledges the difference, see Maj.
Slip Op. at 15, but reconciles this case with Grano and Nat’l
Black Police Ass’n by declaring that “Milk Producers secured a
preliminary injunction in this case largely because their
likelihood of success on the merits was never seriously in
doubt.” Maj. Slip Op. at 15. But “likelihood of success on the
merits” does not equal “success on the merits.” See Camenisch,

3
See id. at 1109 (mootness followed referendum and therefore
“emphasize[d], rather than detract[ed] from, the practical substance of
the[ plaintiffs’] victory”).
 10

451 U.S. at 394. If “likelihood of” success on the merits
suffices here, why not in Thomas? While I agree that the
Secretary does appear to have faced an uphill battle on the
merits, the merits were never reached. And to rely only on the
plaintiffs’ likelihood of success on the merits, without regard to
the other relevant factors—i.e., irreparable harm, the interests of
other parties and the public interest, see, e.g., Cobell v. Norton,
391 F.3d 251, 258 (D.C. Cir. 2004)—in order to determine
whether the preliminary relief the Milk Producers obtained
effected a “court-ordered ‘chang[e] [in] the legal relationship
between [the plaintiff] and the defendant,’ ” Buckhannon, 532
U.S. at 604 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792)
(alterations in Buckhannon), seems a tricky proposition. How
much of a “likelihood of success” is enough? Will a 75 per cent
likelihood do? How about 50 per cent with a strong public
interest showing to boot? The majority had to first collapse the
standard four-factors test for granting preliminary injunctive
relief into one factor—likelihood of success—and then equate
likelihood of success with success in order to declare the Milk
Producers “prevailing parties.” But Buckhannon and, later,
Thomas, never contemplated such complicated footwork to
follow what was intended to be a clear-cut path.
In a case similar to this one the Fourth Circuit held that a
preliminary injunction did not effect a court-ordered change in
the parties’ legal relationship. Smyth v. Rivero, 282 F.3d 268,
276-77 (4th Cir. 2002). In Smyth, the plaintiffs contended that
they were “prevailing parties” under 42 U.S.C. § 1988 because
they obtained a preliminary injunction preventing the Virginia
Department of Social Services from denying them welfare
benefits under a new paternity identification policy. Id. at 275.
The Fourth Circuit disagreed, explaining that a preliminary
injunction “is closely analogous . . . to the examples of judicial
relief deemed insufficient in Buckhannon.” Id. at 276. As to the
plaintiffs’ likelihood of success on the merits, the court
explained that “[a] district court’s determination that such a
 11

showing has been made is best understood as a prediction of a
probable, but necessarily uncertain, outcome” because “the
merits inquiry in the preliminary injunction context is
necessarily abbreviated.” Id. The court observed, moreover,
that the district court must be guided not only by the plaintiff’s
likelihood of success “but also by other considerations, notably
a balancing of likely harms.” Id. While the balance of interests
is “well suited to reconciling the practical, equitable, and legal
concerns that face a court determining whether to grant a party
interim relief, it renders such relief an unhelpful guide to the
legal determination of whether a party has prevailed.” Id. at 277
(internal citation omitted). Accordingly, the court held that that
“interplay” as well as the “less stringent assessment of the
merits of claims that are part of the preliminary injunction
context belie the assertion that the district court’s decision to
grant a preliminary injunction was an ‘enforceable judgment[ ]
on the merits’ or something akin to one for prevailing party
purposes.” Id. (quoting & citing Buckhannon, 532 U.S. at 604)
(alteration in Smyth).
B. “Party in Whose Favor . . . Judgment is Rendered”
Turning to the second Buckhannon principle, the majority also
finds this one satisfied, concluding, “[t]he 2001 preliminary
injunction meets the legal definition of a judgment, and there is
no dispute that it was rendered in Milk Producers’ favor.” Maj.
Slip Op. at 17. While the majority states that “the term
‘judgment’ includes ‘a decree and any order from which an
appeal lies,’ ” Maj. Slip Op. at 16 (quoting BLACK’S LAW
DICTIONARY 846 (7th ed. 1999)), the very first entry under
“judgment” in the same edition of the BLACK ’ S LA W
DICTIONARY used by the Buckhannon Court (as well as by my
colleagues) defines it as “[a] court’s final determination of the
rights and obligations of the parties in a case.” BLACK’S LAW
DICTIONARY 846 (7th ed. 1999) (emphasis added). But there is
no need for dictionary one-upmanship to question the majority’s
 12

reformulation of Buckhannon’s second “core” principle. If “any
order from which an appeal lies” qualifies the recipient as “one
who has been awarded some relief by the court,” Buckhannon,
532 U.S. at 603, and therefore a “prevailing party,” will a
favorable procedural ruling—say, a class certification under
FEDERAL RULES OF CIVIL PROCEDURE RULE 23—suffice? This
is, after all, an “order from which an appeal lies.” See FED . R.
CIV. P. 23(f) (“A court of appeals may in its discretion permit an
appeal from an order of a district court granting or denying class
action certification under this rule if application is made to it
within ten days after entry of the order.”). In Hanrahan v.
Hampton, 446 U.S. 754 (1980), the Supreme Court indicated
that such an order will not do. In holding that the plaintiffs were
not “prevailing parties” based on the Seventh Circuit’s
“interlocutory dispositions, which affected only the extent of
discovery,” the Court explained that, “[a]s is true of other
procedural or evidentiary rulings, these determinations may
affect the disposition on the merits, but were themselves not
matters on which a party could ‘prevail’ for purposes of shifting
his counsel fees to the opposing party under § 1988.” Id. at 759
(citing Bly v. McLeod, 605 F.2d 134, 137 (4th Cir. 1979)).
Moreover, the Buckhannon Court itself gave the term
“judgment” a more precise (and limited) meaning. See 532 U.S.
at 603-04. It stated unequivocally that, before the plaintiff can
be said to “prevail,” “ ‘[r]espect for ordinary language requires
that [he] receive at least some relief on the merits of his
claim.’ ” Id. at 604 (quoting Hewitt, 482 U.S. at 760) (alteration
in Buckhannon). “[T]aken together,” the Court explained, its
precedent “establish[es] 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.” 532 U.S. at 604 (quoting
Tex. State Teachers Ass’n, 489 U.S. at 792-93). According to
Buckhannon, then, a favorable judgment is one that affords a
party some relief on the merits. See 532 U.S. at 603-04; but see
 13

Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.
2002) (“Judgments and consent decrees are examples of [a
judicial imprimatur], but they are not the only examples.”), cert.
denied, 538 U.S. 923 (2003). Furthermore, our own Thomas
decision presents no conflict with this interpretation. See 330
F.3d at 493 (“ ‘[A] “prevailing party” is one who has been
awarded some relief by the court.’ ” (quoting Buckhannon, 532
U.S. at 603)). The Milk Producers did not receive the merits
relief they sought—invalidation of the Class III Butterfat price
regulation—by judgment but, instead, by the Secretary’s
voluntary action.
C. “Judicial Relief” Requirement
The majority explains that the Milk Producers received
“judicial relief” because they “asked the District Court for
equitable relief in the form of a preliminary injunction that
would enjoin the implementation of the December 2000 rule
before the separate price for Class III butterfat took retroactive
effect.”4 Maj. Slip Op. at 17. Accordingly, in the majority’s
view, “[w]hen the District Court issued the injunction, it granted
Milk Producers the precise relief that they had requested.” Id.
Not so. The sole effect of the preliminary injunction was to
preserve the status quo, not give the Milk Producers their
desired relief: to wit, a new and procedurally correct rulemaking
on the Class III Butterfat price. See Milk Producers’ Complaint

4
The third Buckhannon factor is less a “core” principle than a
caveat. See Buckhannon, 532 U.S. at 606 (noting no attorney’s fees
if plaintiff “acquired a judicial pronouncement that the defendant has
violated the constitution unaccompanied by ‘judicial relief’ ” (quoting
& citing Hewitt, 482 U.S. at 760)) (emphasis in Buckhannon); see also
Thomas, 330 F.3d at 493 (“[A] claimant is not a ‘prevailing party’
merely by virtue of having ‘acquired a judicial pronouncement that the
defendant has violated the constitution unaccompanied by “judicial
relief.” ’ ” (quoting Buckhannon, 532 U.S. at 606 (in turn quoting
Hewitt, 482 U.S. at 760))).
 14

for Declaratory & Injunctive Relief, Jan. 11, 2001, at 18-19,
reprinted in J.A. at 24-25. Ultimately, the Secretary, by
voluntary action, gave them the “precise relief” they sought.
The majority’s attempt to link the preliminary relief and the
final relief sounds suspiciously like the “catalyst theory”
jettisoned by the Buckhannon Court. See Buckhannon, 532 U.S.
at 605 (“A defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by
the lawsuit, lacks the necessary judicial imprimatur on the
change.”). That is, while the preliminary injunction no doubt
helped prompt the Secretary to abandon the separate Class III
Butterfat price, “judicial prompting,” Buckhannon made plain,
is not enough.
The district court used similar reasoning, explaining that,
given the retroactive nature of the Secretary’s price
announcement, the Milk Producers’ interim victory “was the
only effective relief they could seek” and that “no subsequent
final judgment on the merits or consent decree could award
plaintiffs effective relief.” Select Milk Producers, 304 F.
Supp.2d at 53. But the fact that absent the preliminary
injunction the regulation would have imposed a retroactive Class
III Butterfat price does not alter its preliminary nature. The
district court could not have been clearer on this point.
ORDERED that until the final determination of
this action, the Secretary, his officers, agents,
servants, employees and attorneys and those
persons in active concert or participation with
them who receive actual notice of this order by
personal service or otherwise are ENJOINED
from implementing the provisions of a new Class
III Butterfat Price in amended regulations found
at 7 C.F.R. Parts 1000-1135 and at [65] Fed.
Reg. 76832 (December 7, 2000) and 65 Fed.
Reg. 82832 (December 28, 2000). In
 15

compliance with this Order, the Secretary is
directed to make necessary changes to the
Interim Final Order as specified in Attachment 1
hereto.
Select Milk Producers, Inc. v. Glickman, No. 01 CV 00060, at
2 (D.D.C. Jan. 31, 2001) (order granting preliminary injunction)
(emphasis added), reprinted in J.A. at 31. Preventing the
regulations from taking effect on February 2nd was thus a
necessary step toward obtaining the temporary relief the Milk
Producers sought—the “loss of an estimated $5,000,000,” Select
Milk Producers, 304 F. Supp.2d at 53—but it was not the final
relief they sought, i.e., to prevent regulations, which the Milk
Producers alleged were procedurally defective, from ever taking
effect. This required either a judgment on the merits or entry of
a court-ordered consent decree. Just as we concluded in Thomas
that the plaintiffs “filed a lawsuit in order to obtain a refund
from NSF, but the preliminary injunction did nothing to
vindicate that claim,” 330 F.3d at 493, the Milk Producers filed
their lawsuit in order to invalidate the rule containing the
separate Class III Butterfat price but the preliminary injunction
did not “vindicate that claim.” See id.
The majority emphasizes that “this is not a case in which the
Government voluntarily changed its ways before judicial action
was taken.” Maj. Slip Op. at 17 (emphasis in original).
According to the majority, “[i]f the Government had acted to
moot this case through voluntary cessation before there was
judicially sanctioned change in the legal relationship of the
parties, Milk Producers would not have been ‘prevailing
parties’ ” because “as the Court noted in Buckhannon, a
defendant’s ‘voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the
change.’ ” Id. at 17 (quoting Buckhannon, 532 U.S. at 605).
This conclusion follows, of course, only if one accepts that the
 16

preliminary injunction effected a “judicially sanctioned change
in the legal relationship of the parties” à la Buckhannon. I do
not and neither did Buckhannon:
[A “prevailing” party is n]ot the party that
ultimately gets his way because his adversary
dies before the suit comes to judgment; not the
party that gets his way because circumstances so
change that a victory on the legal point for the
other side turns out to be a practical victory for
him; and not the party that gets his way because
the other side ceases (for whatever reason) its
offensive conduct.
532 U.S. at 615 (Scalia, J., concurring) (emphasis added).
And as the majority attempts to explain away one mootness
problem, it creates another. See Maj. Slip Op. at 18-19. It
acknowledges “the well-recognized principle that, normally,
when a losing party is blocked from appealing an adverse
judgment or order because the case becomes moot due to
happenstance, the court will vacate the disputed judgment or
order.” Id. at 18 (citing U.S. Bancorp Mortgage Co. v. Bonner
Mall P’ship, 513 U.S. 18 (1994)). In United States v.
Munsingwear, Inc., 340 U.S. 36 (1950), for example, the
Supreme Court stated that “[t]he established practice of the
Court in dealing with a civil case from a court in the federal
system which has become moot while on its way here or
pending our decision on the merits is to reverse or vacate the
judgment below and remand with a direction to dismiss.” Id. at
39. By following this procedure, the Court explained, “the
rights of all parties are preserved; none is prejudiced by a
decision which . . . was only preliminary.” Id. at 40. The
majority correctly explains that “ ‘vacatur is usually
inappropriate when “the party seeking relief from the judgment
below caused the mootness by voluntary action.” ’ ” Maj. Slip
Op. at 18 (quoting Nat’l Black Police Ass’n v. Dist. of Columbia,
 17

108 F.3d 346, 351 (D.C. Cir. 1997) (in turn quoting Bancorp,
513 U.S. at 24); citing N. Cal. Power Agency v. NRC, 393 F.3d
223, 225 (D.C. Cir. 2004))). It then concludes that it is “not
somehow unfair” to treat the Milk Producers as “prevailing
parties,” despite the mootness of their lawsuit, because the
Secretary failed to appeal and instead “voluntarily elected to
moot the case.” Maj. Slip Op. at 18-19. This might sound right
but for the majority’s conclusion that the Milk Producers
“prevailed” only because of the district court’s “likelihood of
success” finding and because the mooting of the case—effected
by the losing party’s action—turned “likelihood of success” into
“success.” See Maj. Slip Op. at 13-15. It is one thing to say that
vacatur of an adverse judgment is inappropriate if subsequent
mootness is caused by the losing party’s voluntary action but
quite another to prejudice the losing party based on its voluntary
action that creates the mootness. The majority offers no case to
support the latter and I cannot agree that the result it produces is
“not somehow unfair.” Maj. Slip Op. at 18.
My disagreement with the majority’s disposition does not
necessarily mean that I believe a preliminary injunction may
never constitute the sort of judicial imprimatur meriting an
award of costs and fees under the EAJA. See, e.g., FED . R. CIV.
P. 65(a)(2) (allowing preliminary–cum–permanent relief after
consolidated hearing). All we need decide today is that the
preliminary injunction here, by doing nothing more than
preserving the status quo, did not make the Milk Producers
prevailing parties. Because the Secretary had disturbed the
status quo by promulgating a separate Class III Butterfat price,
it was necessary for the district court to order the Secretary to
restore it. This fits with the traditional office of a preliminary
injunction inasmuch as “ ‘[s]tatus quo’ does not mean the
situation existing at the moment the law suit is filed, but the
‘last peaceable uncontested status existing between the parties
before the dispute developed.’ ” O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1013
 18

(10th Cir. 2004) (McConnell, J., concurring) (quoting 11A
FEDERAL PRACTICE AND PROCEDURE § 2948). Accordingly,
while the preliminary injunction in Thomas restrained the
government from taking action in order to preserve an existing
fund and the district court here ordered the Secretary to take
action in order to prevent the Milk Producers from losing funds,
both preliminary injunctions operated—in different but
nonetheless straightforward ways—to maintain the status quo.
Our decision in Thomas, 330 F.3d at 493, manifests a
disinclination to join those circuits that have announced a per
se rule rejecting preliminary injunctive relief as support for a
“prevailing party” finding.5 If the majority means to hold that
the five million dollars that the Milk Producers did not lose
when the district court entered the preliminary injunction
comprises the “concrete and irreversible” relief which turned
the preliminary injunction into relief on the merits, then I
believe our circuit is endorsing a per se rule the other way. The
“retained” five million dollars resulted from the preliminary

5
See John T. v. Del. County Intermediate Unit, 318 F.3d 545, 558
(3d Cir. 2003) (“The Preliminary Injunction is an insufficient basis on
which to award attorney’s fees . . . because it is interim relief not
based on the merits . . . .”); Smyth v. Rivero, 282 F.3d 268, 277 (4th
Cir.) (“[W]e hold that the preliminary injunction entered by the district
court does not satisfy the prevailing party standard . . . .”), cert.
denied, 537 U.S. 825 (2002); but see Dubuc v. Green Oak Township,
312 F.3d 736, 753 (6th Cir. 2002) (“With respect to a preliminary
injunction, there is only prevailing party status if the injunction
represents ‘an unambiguous indication of probable success on the
merits, and not merely a maintenance of the status quo ordered
because the balance of equities greatly favors the plaintiff.’ ” (quoting
Webster v. Sowders, 846 F.2d 1032, 1036 (6th Cir.1988))); Watson v.
County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (“A
preliminary injunction issued by a judge carries all the ‘judicial
imprimatur’ necessary to satisfy Buckhannon.”), cert. denied, 538 U.S.
923 (2003).
 19

enjoining of the regulation in the same way that preliminarily
enjoining, say, a change in licensing requirements would result
in the licensee not having to comply with them pendente lite.
If the preliminary injunction eventually becomes a permanent
one, the preliminary relief does too. But that is because the
eventual court order is a permanent (or final) one. The
preliminary relief does not transmogrify into permanent relief
without it. Much less should it do so when, as Buckhannon
spells out, 532 U.S. at 605, the controversy ends by other than
court order.6
III.
The words “preliminary” and “prevailing” are not ones that
easily fit together. To make them do so in this case, the
majority has put together the EAJA, Buckhannon and Thomas
and produced a Rube Goldbergesque result. I fear it has
assumed the role Justice White warned against some time ago.
Through fee-shifting statutes like the EAJA the Congress did
not “extend[] any roving authority to the Judiciary to allow
counsel fees as costs or otherwise whenever the courts might
deem them warranted.” Alyeska Pipeline Serv. Co. v.
Wilderness Soc’y, 421 U.S. 240, 260 (1975). For the foregoing
reasons, I respectfully dissent.

6
In responding to the dissent, the majority seems to have minimized
the significance of its limiting “concrete and irreversible” relief
rationale that depends on the “retained” five million dollars,
emphasizing instead that the “2001 preliminary injunction provided
concrete and irreversible judicial relief . . . based on the . . . conclusion
that Milk Producers were likely to prevail on the merits.” Maj. Slip
Op. at 16. If my reading of its response is correct, the majority has in
fact embraced a per se rule for no preliminary injunction can be
granted without a showing of likelihood of success on the merits.