NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATHAN C. BROWN,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7016
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-3535, Judge Alan G. Lance, Sr.
______________________
Decided: November 18, 2014
______________________
JOHN F. CAMERON, of Montgomery, Alabama, argued
for claimant-appellant.
ZACHARY J. SULLIVAN, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and SCOTT D. AUSTIN, Assistant Director. Of
counsel on the brief were Y. KEN LEE, Deputy Assistant
2 BROWN v. MCDONALD
General Counsel, and BRIAN D. GRIFFIN, Attorney, United
States Department of Veterans Affairs, of Washington,
DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel.
______________________
Before WALLACH, CHEN, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES.
Concurring Opinion filed by Circuit Judge WALLACH.
HUGHES, Circuit Judge.
Nathan Brown petitioned the Court of Appeals for
Veterans Claims to order the Department of Veterans
Affairs to issue a rating decision on his claims for veteran
benefits. During the proceedings, the Veterans Court
ordered the agency to provide a status update on Mr.
Brown’s case. The agency then mailed Mr. Brown notice
of its prior rating decision granting him benefits and
notified the court that Mr. Brown’s claim had been grant-
ed. Mr. Brown argues that this makes him a prevailing
party under the Equal Access to Justice Act, 28 U.S.C.
§ 2412. But the Supreme Court has held that the gov-
ernment’s voluntary change in conduct, even if it accom-
plishes the object of a lawsuit, does not confer prevailing-
party status on the plaintiff. Accordingly, we affirm the
Veterans Court’s holding that Mr. Brown is not a prevail-
ing party under § 2412.
I
Mr. Brown served in the Navy between September
1972 and December 1973. In 2001, Mr. Brown filed a
claim to establish service connection for schizoaffective
disorder. Following two appeals to the Veterans Court
and two joint motions for remand, the Board of Veterans’
Appeals ordered that a new compensation and pension
examination be performed. A March 2012 report from the
ordered examination states that Mr. Brown’s schizoaffec-
BROWN v. MCDONALD 3
tive disorder was as likely as not a result of his military
service, and that it caused him total occupational and
social impairment.
Between March and October 2012, Mr. Brown re-
quested seven times that a regional office issue a rating
decision on his claim. On October 9, 2012, the regional
office sent a letter to Mr. Brown with a copy of the March
2012 examination report. The letter, however, did not
include a rating decision.
On December 5, 2012, Mr. Brown filed a petition for
writ of mandamus in the Veterans Court to compel the
regional office to issue a rating decision and to provide
him with any new evidence obtained by the regional
office. On December 7, 2012, the Veterans Court ordered
the Secretary of Veterans Affairs to “respond with infor-
mation about the status of the petitioner’s claim.” J.A.
264. Four days later, the regional office mailed
Mr. Brown notice of its earlier October 17, 2012 rating
decision granting service connection and disability ratings
for his schizoaffective disorder. Then, in response to the
Veterans Court’s order, the Secretary informed the court
that the rating decision had issued and that no new
evidence had been obtained. On January 17, 2013, the
Veterans Court dismissed Mr. Brown’s petition as moot
because he had obtained the requested relief.
In May 2013, Mr. Brown filed a fee application under
the Equal Access to Justice Act, 28 U.S.C. § 2412, for the
recovery of fees and expenses incurred in filing his De-
cember 5, 2012 petition. Concluding that Mr. Brown was
not a “prevailing party” for the purposes of an EAJA
claim, the Veterans Court denied the application.
Mr. Brown appeals. We have jurisdiction under 38 U.S.C.
§ 7292.
4 BROWN v. MCDONALD
II
Our jurisdiction over appeals from the Veterans Court
is limited by statute. Although we may not review “a
challenge to a law or regulation as applied to the facts of a
particular case” in the Veterans Court, 38 U.S.C.
§ 7292(d)(2)(B), we review the Veterans Court’s interpre-
tation of EAJA de novo. Vaughn v. Principi, 336 F.3d
1351, 1354 (Fed. Cir. 2003).
Under EAJA, a court awards a “prevailing party” fees
and expenses incurred in any civil action or judicial
review of agency action brought against the United
States, unless the position of the United States was
substantially justified or special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). To establish
that it is a “prevailing party,” an EAJA applicant “must
show that it obtained an enforceable judgment on the
merits or a court-ordered consent decree that materially
altered the legal relationship between the parties, or the
equivalent of either of those.” Rice Servs., Ltd. v. United
States, 405 F.3d 1017, 1025 (Fed. Cir. 2005).
But the Supreme Court has held that “[a] defendant’s
voluntary change in conduct, although perhaps accom-
plishing what the plaintiff sought to achieve by the law-
suit,” cannot confer prevailing party status on a plaintiff.
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 605 (2001). Analyz-
ing fee shifting statutes similar to EAJA, the Court ex-
plained that a voluntary change “lacks the necessary
judicial imprimatur on the change.” Id. We have since
applied Buckhannon and interpreted EAJA as excluding
applications for fees and expenses based on this “catalyst”
theory. See Vaughn, 336 F.3d at 1355–56; Brickwood
Contractors, Inc. v. United States, 288 F.3d 1371, 1376
(Fed. Cir. 2002).
Mr. Brown argues that he is a prevailing party by vir-
tue of the Veterans Court’s December 7, 2012 order be-
BROWN v. MCDONALD 5
cause he received some relief as a result of the order.
Appellant’s Br. 25. The Veterans Court disagreed, hold-
ing that Mr. Brown’s prevailing party argument relies on
the catalyst theory. We agree with the Veterans Court.
Mr. Brown’s petition for a writ of mandamus request-
ed the issuance of a rating decision and copies of any new
evidence obtained by the regional office. The Veterans
Court’s December 7, 2012 order was not on the merits and
did not compel the agency to issue a decision. Instead, it
required the Secretary to “respond with information about
the status of the petitioner’s claim.” J.A. 264. Following
the order, the regional office voluntarily mailed its rating
decision to Mr. Brown. The Secretary then notified the
Veterans Court that it had made a rating decision and
that no new evidence had been obtained.
Although Mr. Brown achieved his desired results,
those results occurred through the voluntary conduct of
the regional office and the Secretary. They did not occur
because of an enforceable judgment on the merits or a
court-ordered consent decree. Such circumstances do not
fall within the meaning of “prevailing party” in 28 U.S.C.
§ 2412(d)(1)(A). Vaughn, 336 F.3d at 1355–56.
Moreover, even if we assume that the issuance of the
rating decision was a direct result of the Veterans Court’s
order requiring a status report, that is simply a restate-
ment of the catalyst theory and insufficient to confer
prevailing party status. We rejected a similar theory in
Brickwood, 288 F.3d 1371, where the government alleged-
ly changed its position as a result of preliminary oral
comments from the court that were not embodied in a
court order. There, we held that the lack of an enforcea-
ble judgment on the merits or a consent decree precluded
prevailing party status. Id. at 1379–80. Similarly, here,
a preliminary order requiring a status report fails to
establish that Mr. Brown was a prevailing party.
6 BROWN v. MCDONALD
We have considered Mr. Brown’s other arguments and
find them without merit. To the extent that Mr. Brown
asks us to review the application of EAJA to the particu-
lar facts of his case, we lack jurisdiction to do so. See id.
at 1354.
III
Because the Veterans Court correctly construed 28
U.S.C. § 2412(d)(1)(A), we affirm.
AFFIRMED
No costs.
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATHAN C. BROWN,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7016
______________________
WALLACH, Circuit Judge, concurring.
I concur although when the Department of Veterans
Affairs’ level of incompetency rises to a level approaching
actual malevolence, at some point legal action to obtain
redress should require EAJA compensation.