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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2003 Decided June 3, 2003
No. 02-5169
WILLIAM THOMAS, ET AL.,
APPELLEES
v.
NATIONAL SCIENCE FOUNDATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02412)
Michael E. Robinson, Attorney, U.S. Department of Jus-
tice, argued the cause for appellant. With him on the brief
were Roscoe C. Howard, Jr., U.S. Attorney, and Michael J.
Singer, Attorney, U.S. Department of Justice. R. Craig
Lawrence and Lisa S. Goldfluss, Assistant U.S. Attorneys,
entered appearances.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
William H. Bode argued the cause for appellees. With him
on the brief was Anne R. Noble.
Arthur B. Spitzer, Amanda Frost and Brian Wolfman
were on the brief for amici curiae ACLU and Public Citizen,
Inc., in support of appellees.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: In 1995, the National Science
Foundation (‘‘NSF’’), the sole appellant before this court, and
Network Solutions, Inc. (‘‘NSI’’), a private contractor, entered
into an agreement which permitted NSI to collect fees for
Internet registration services. NSI and NSF divided the
fees 70%-30%, with NSF’s 30% share deposited into an
Intellectual Infrastructure Fund (‘‘Fund’’) for future Govern-
ment use on Internet projects. In 1997, William Thomas and
other parties (collectively, ‘‘appellees’’), filed a suit in District
Court seeking to enjoin NSF and NSI from spending monies
in the Fund and claiming restitution of fees collected from
domain name registrants on the Internet. The District Court
issued a preliminary injunction temporarily barring NSF and
NSI from spending any money in the Fund. See Thomas v.
Network Solutions, Inc., No. 97-02412 (D.D.C. Feb. 2, 1998)
(‘‘Injunction Order’’), reprinted in Appendix (‘‘App.’’) 71-83.
Subsequently, the District Court dismissed all counts of the
Amended Complaint except Count One and dismissed NSI
from the lawsuit (because Count One concerned only NSF.)
See Thomas v. Network Solutions, Inc., 2 F. Supp. 2d 22, 38
(D.D.C. 1998) (‘‘SJ Decision’’). The SJ Decision also granted
partial summary judgment for appellees, holding that the
portion of the registration fees deposited in the Fund emanat-
ed from a tax that was neither imposed nor ratified by
Congress as required by Article I, Section 8 of the Constitu-
tion. Although the District Court found the ‘‘tax’’ unconstitu-
tional, it awarded no money relief to appellees.
Before the District Court was able to render final judgment
or issue an order for specific relief in the case, the President
signed into law H.R. 3579, the Fiscal Year 1998 Supplemental
3
Appropriations and Rescissions Act. Section 8003 of the
statute ‘‘legalized and ratified’’ the registration fee and the
monies held by NSF in the Fund, thus rendering moot
appellees’ claim before the District Court. The District
Court then vacated the preliminary injunction and dismissed
the case. Thomas v. Network Solutions, Inc., No. 97-02412
(D.D.C. Aug. 28, 1998) (‘‘Dismissal Order’’), reprinted in App.
84-98. The District Court’s judgment was affirmed by this
court in Thomas v. Network Solutions, Inc., 176 F.3d 500, 507
(D.C. Cir. 1999) (‘‘Thomas II’’).
Appellees then filed a motion for attorney’s fees and costs
against NSF under the Equal Access to Justice Act
(‘‘EAJA’’), 28 U.S.C. § 2412(d)(1)(A) (1982). The District
Court, held that, because they had succeeded in securing a
preliminary injunction and a partial summary judgment, ap-
pellees were ‘‘prevailing parties’’ under EAJA and, thus,
entitled to fees and costs. Thomas v. Network Solutions,
Inc., No. 97-02412 (D.D.C. Mar. 22, 2002) (‘‘Fee Award’’),
reprinted in App. 551-59; Thomas v. Network Solutions, Inc.,
No. 97-02412 (D.D.C. Mar. 23, 2001) (‘‘Fee Decision’’), re-
printed in App. 399-422. NSF appeals from these judg-
ments.
In Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001) (‘‘Buckhannon’’), the Supreme Court denied fees to a
party whose claim was mooted by intervening legislation.
The Court held that a plaintiff is not a ‘‘prevailing party’’
under a fee-shifting statute simply by virtue of having ‘‘ac-
quired a judicial pronouncement that the defendant has vio-
lated the Constitution unaccompanied by judicial relief.’’ Id.
at 606; see also Hewitt v. Helms, 482 U.S. 755, 760 (1987).
In our view, the Court’s judgment and reasoning in Buckhan-
non make it clear that appellees are not ‘‘prevailing parties’’
under EAJA. We therefore reverse the judgments of the
District Court.
I. BACKGROUND
Many of the details relating to the underlying litigation in
this case are set forth in Thomas II, 176 F.3d at 502-06. Our
4
statement of the facts will therefore focus primarily on the
matters related to this appeal.
NSF is an independent federal agency whose authority
extends to ‘‘coordinating and funding the management of the
nonmilitary portion of the Internet infrastructure.’’ Id. at
504. In 1993, NSF signed a Cooperative Agreement with
NSI. The agreement called for NSI to design and manage a
system for individuals and companies to register their Inter-
net domain names. In addition, NSF agreed to compensate
NSI for the costs of offering this service to the public and to
provide the company an additional fixed fee for each complet-
ed domain name registration.
In 1995, NSF and NSI amended their Cooperative Agree-
ment. Under the revised arrangement, the cost of an Inter-
net domain name would be $100 for new registrations and $50
for yearly renewals. The amended contract allotted 70% of
the fees to NSI as consideration for the services provided,
with the remaining 30% to be deposited in the Intellectual
Infrastructure Fund for future Government use in connection
with Internet projects. The fee arrangement under the
revised Cooperative Agreement was adopted by NSF and
NSI without prior authorizing legislation from Congress.
In October, 1997, appellees, various parties who had paid
the Internet registration fees, filed a civil lawsuit against
NSF and NSI in the District Court. They claimed that
NSF’s share of the registration fees (the so-called ‘‘Preserva-
tion Assessment’’) was an unconstitutional tax, because Con-
gress never authorized the agency to collect and deposit
monies into the Fund. Appellees sought an injunction bar-
ring NSF from collecting any further fees or spending any
monies in the Fund and a refund of the money that had been
deposited in the Fund. Shortly after appellees filed suit, the
District Court issued a limited preliminary injunction pre-
venting NSF from ‘‘crediting, spending, obligating or using
any of the money collected for, placed into, or taken from’’ the
Fund pending final adjudication of the case. Injunction
Order, App. 83.
5
On April 6, 1998, the District Court dismissed all counts of
the Amended Complaint, except Count One; granted a partial
summary judgment in favor of appellees against NSF on
Count One of the Amended Complaint; and dismissed NSI
from the case. SJ Decision, 2 F. Supp. 2d at 25; Dismissal
Order at 2, App. 85. The District Court held that ‘‘there is no
dispute that the Preservation Assessment exists to generate
revenue for public projects and goals, or that it is a fee
imposed independent of and above the cost of domain name
registration.’’ SJ Decision, 2 F. Supp. 2d at 30. Since the
1995 amendment to the Cooperative Agreement had neither
been reviewed nor ratified by Congress, the District Court
reasoned, NSF’s collection of the assessment was an unap-
proved ‘‘tax’’ in violation of Article I, Section 8 of the Consti-
tution. Id. at 33.
Before the District Court entered final judgment or ad-
dressed appellees’ claims for relief, Congress passed and the
President signed into law Section 8003 of the Fiscal Year
1998 Supplemental Appropriations and Recissions Act:
RATIFICATION OF INTERNET INTELLECTU-
AL INFRASTRUCTURE FEE. (a) The 30 percent
portion of the fee charged by Network Solutions,
Inc., between September 14, 1995 and March 31,
1998, for registration and renewal of an Internet
second-level domain name, which portion was to be
expended for the preservation and enhancement of
the intellectual infrastructure of the Internet under
a cooperative agreement with the National Science
Foundation TTT is hereby legalized and ratified and
confirmed fully as to all intents and purpose as if the
same had, by prior Act of Congress, been specifically
authorized and directed.
Pub. L. No. 105-174, 112 Stat. 58, 93. This statutory provi-
sion had the clear purpose and effect of legalizing and ratify-
ing NSF’s Preservation Assessment scheme.
Following enactment of § 8003, NSF filed a motion to
vacate the preliminary injunction and dismiss the case as
moot. On August 28, 2000, the District Court concluded that
6
Section 8003 was ‘‘sufficient to effect a valid ratification of the
[Preservation Assessment].’’ Dismissal Order at 13, App. 96;
see also U.S. v. Heinszen & Co., 206 U.S. 370, 384 (1907)
(recognizing congressional power to ratify tax retroactively).
Finding no other legal impediment preventing NSF from
imposing the Preservation Assessment on new registrants or
from using the funds already collected, the District Court
granted NSF’s motion. Dismissal Order at 15, App. 98.
This court affirmed the judgment of the District Court, see
Thomas II, 176 F.3d at 512, and the Supreme Court denied
appellees’ petition for certiorari, see Thomas v. Network
Solutions, Inc., 528 U.S. 1115 (2000).
On February 17, 2000, appellees filed a motion in District
Court seeking an award of attorney’s fees and costs under
EAJA. See Plaintiffs’ Application in Support of Motion for
Award of Attorney’s Fees and Costs (‘‘Fee Motion’’), reprint-
ed in App. 99-276. EAJA provides that:
Except as otherwise specifically provided by statute,
a court shall award to a prevailing party other than
the United States fees and other expenses TTT in-
curred by that party in any civil action TTT brought
by or against the United States TTT 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). Appellees cited three reasons to
support their claim as ‘‘prevailing parties’’ under EAJA: (1)
the District Court’s preliminary injunction ‘‘prohibiting
[NSF’s] dissipation of the tens of millions of dollars in unlaw-
ful taxes they exacted’’; (2) the court’s partial summary
judgment on ‘‘the ‘central issue’ in the litigation’’; and (3) the
fact that the lawsuit was the catalyst for NSF to ‘‘do away
with the Preservation Assessment collections altogether.’’
Fee Motion at 20, App. 120. In opposition to the motion,
NSF argued that appellees were ‘‘not ‘prevailing parties’ for
purposes of EAJA, and their claim fails on that basis alone.’’
See Defendant NSF’s Opp. to Plaintiffs’ Motion for Award of
Attorneys’ Fees and Costs at 3 (‘‘NSF Opposition’’), reprinted
in App. 279. NSF also argued that appellees could not
7
prevail under EAJA because NSF’s legal position in the case
was ‘‘substantially justified.’’ Id. at 13-21, App. 289-97.
The District Court concluded that a fee award for appellees
was appropriate under EAJA. The court rejected the ‘‘cata-
lyst theory’’ as a basis for fees, but found that the preliminary
injunction and partial summary judgment were sufficient to
make appellees ‘‘prevailing parties.’’ Fee Decision at 15-17,
App. 412-14. While the District Court was considering sup-
plemental pleadings to determine the exact amount of money
that appellees were due, the Supreme Court decided Buck-
hannon. There, the Court rejected a fee request pursuant to
the Fair Housing Amendments Act and the Americans with
Disabilities Act where the underlying lawsuit became moot
when the state passed legislation to resolve the case. 532
U.S. at 601-02.
NSF then filed a ‘‘Notice of Filing’’ with the District Court
on June 13, 2001, suggesting that Buckhannon was relevant
to the legal construction of the term ‘‘prevailing parties’’ in
fee-shifting statutes. The District Court held to its position
that appellees had ‘‘prevailed,’’ stating that the decision in
Buckhannon was largely inapposite to the present case:
[W]hile Buckhannon may bolster this Court’s prior
rejection of Plaintiff’s catalyst theories by providing
a wholly new basis for doing so, the Court can find
nothing in Buckhannon and its limited progeny thus
far necessitating a different result; the preliminary
injunction and summary judgment awarded to [ap-
pellees] certainly constitute a ‘judicial imprimatur,’
and there was nothing ‘voluntary’ about [NSF]’s
compelled compliance with such ordered relief.
Fee Award at 2 n.1, App. 552. The District Court then
awarded $268,070 in attorney’s fees and $38,585 in costs to
appellees. Id. at 7, App. 557. NSF then filed a Notice of
Appeal with this court.
II. DISCUSSION
NSF claims that the District Court committed legal error
in construing EAJA’s ‘‘prevailing party’’ requirement. We
8
review this claim de novo. See Nat’l Ass’n of Mfrs. v. Dep’t
of Labor, 159 F.3d 597, 599 (D.C. Cir. 1998) (‘‘[W]e review an
award [under EAJA] de novo insofar as it rests on conclu-
sions of law, such as an interpretation of the statutory terms
that define eligibility for an award.’’) (citation omitted). NSF
asks this court to reverse the award of fees and costs
awarded to appellees, because they are not eligible ‘‘prevail-
ing parties’’ under EAJA.
A. Appellees’ Forfeiture Claim
Before addressing the merits of NSF’s appeal, we must
first consider whether NSF’s claim that appellees are not
‘‘prevailing parties’’ under EAJA is properly before this
court. Appellees contend that we should dismiss the appeal,
because NSF never argued before the District Court that
appellees were not ‘‘prevailing parties.’’ Br. of Appellees at
18-21. Thus, according to appellees, this claim has been
forfeited. We disagree.
We need not dwell long on this issue, because NSF’s reply
brief to this court convincingly refutes appellees’ claim:
[T]he issue of ‘‘prevailing party’’ status was raised
by NSF below. Although NSF’s opposition to plain-
tiffs’ motion for attorney’s fees concentrated on the
issue of substantial justification, the opposition pre-
liminarily stated that ‘‘[p]laintiffs are TTT not ‘pre-
vailing parties’ for purposes of EAJA, and their
claim fails on that basis alone.’’ Def. NSF’s Opp’n
to Pls.’ Mot. for Award of Atty’s Fees and Costs at 3
(App. 279). NSF argued that the district court’s
‘‘April 6th ruling was not merged into any final
judgment, and the ‘unconstitutional tax’ issue was
never litigated to finality,’’ depriving it of the oppor-
tunity to ‘‘exercise the right enjoyed by ‘non-
prevailing’ parties to appeal.’’ Id. at 1 (App. 277).
NSF also subsequently filed a ‘‘Notice of Filing’’
with the district court, noting that Buckhannon
‘‘ ‘bears upon the construction of ‘‘prevailing party’’
for purposes of attorney fee-shifting statutes.’ ’’ See
Dis. Ct. Op. (Mar. 22, 2002) at 2 n.1 (App. 552).
9
Indeed, the district court specifically addressed and
decided the issue of ‘‘prevailing party’’ status in its
opinion, holding that ‘‘the preliminary injunction and
summary judgment awarded to Plaintiffs certainly
constitute a ‘judicial imprimatur,’ and there was
nothing ‘voluntary’ about Defendants’ compelled
compliance with such ordered relief.’’ Ibid.
Reply Br. of Appellant at 7-8.
In short, the record is clear that NSF raised the ‘‘prevail-
ing party’’ issue with the District Court, the District Court
addressed the issue, and NSF preserved the issue in its
appeal to this court. Accordingly, we reject the contention
that NSF forfeited its right to challenge appellees’ prevailing
party status on appeal.
B. The Merits
The central issue in this case is whether, in light of
Buckhannon and Hewitt, the District Court erred in holding
that the vacated preliminary injunction and partial summary
judgment were sufficient to make appellees eligible for attor-
ney’s fees under the EAJA.
The District Court found Buckhannon to be inapposite,
because, in the trial court’s view, the principal thrust of
Buckhannon is the Supreme Court’s judgment rejecting the
‘‘catalyst theory.’’ The plaintiff’s argument for fees in Buck-
hannon rested on the theory that the lawsuit led the state to
adopt intervening legislation that ultimately resolved the legal
dispute. The Court held that the litigant was not a ‘‘prevail-
ing party,’’ because the lawsuit was resolved by virtue of what
the defendant did, not what the court ordered. In other
words, the enactment of the legislation ‘‘lack[ed] the neces-
sary judicial imprimatur.’’ 532 U.S. at 605. Seizing on this
language, the District Court determined that its vacated
rulings bore the requisite judicial imprimatur and concluded
that this factual distinction limited the applicability of Buck-
hannon to the present case. Fee Award at 2 n.1, App. 552.
This view of Buckhannon is much too narrow.
10
Buckhannon is, first and foremost, about the meaning of
the term ‘‘prevailing party’’ in civil litigation under certain
fee-shifting statutes.1 The first two sentences of the majority
opinion for the Court make this clear:
Numerous federal statutes allow courts to award
attorney’s fees and costs to the ‘‘prevailing party.’’
The question presented here is whether this term
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.
532 U.S. at 600. In addressing this issue, Buckhannon
embraces three core principles that form the basis for the
Court’s construction of ‘‘prevailing parties’’ under a fee-
shifting statute. First, in order to be a ‘‘prevailing party,’’ a
claimant must show that there has been ‘‘a court-ordered
‘chang[e] [in] the legal relationship between [the plaintiff] and
the defendant.’ ’’ Id. at 604 (citing Texas State Teachers
Ass’n. v. Garland Indep. School Dist., 489 U.S. 782, 792
(1989) (citing Hewitt, 482 U.S. at 760-761, and Rhodes v.
Stewart, 488 U.S. 1, 3-4 (1988))) (alterations in original).
Second,
the term ‘‘prevailing party[ ]’’ [is] a legal term of art.
Black’s Law Dictionary 1145 (7th ed.1999) defines
1 In Oil, Chemical & Atomic Workers International Union v.
Department of Energy, we held that ‘‘eligibility for an award of
attorney’s fees [under one statute] should be treated the same as
eligibility determinations made under other fee-shifting statutes
unless there is some good reason for doing otherwise.’’ 288 F.3d
452, 455 (D.C. Cir. 2002) (emphasis added). Appellants have of-
fered no reason to treat eligibility under the EAJA differently from
eligibility under other fee-shifting statutes, including the statutes at
issue in Buckhannon. Like the other circuits that have considered
the issue, we therefore hold that Buckhannon applies to the defini-
tion of ‘‘prevailing party’’ under the EAJA. See Brickwood Con-
tractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002);
Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002).
11
‘‘prevailing party’’ as ‘‘[a] party in whose favor a
judgment is rendered, regardless of the amount of
damages awarded ¢in certain cases, the court will
award attorney’s fees to the prevailing party$. –
Also termed successful party.’’ This view that a
‘‘prevailing party’’ is one who has been awarded
some relief by the court can be distilled from our
prior cases.
532 U.S. at 603 (footnote omitted). Third, 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.’’’ Id. at 606
(citing Hewitt, 482 U.S. at 760) (emphasis added).2
These principles underscore the Court’s judgment in Buck-
hannon rejecting the ‘‘catalyst theory,’’ but they also estab-
lish a framework for construing and applying the ‘‘prevailing
party’’ requirement more broadly. In applying these princi-
ples to the instant case, it is clear that appellees are not
‘‘prevailing parties’’ under EAJA, for neither the preliminary
injunction nor the partial summary judgment changed the
legal relationship between appellees and NSF in a way that
afforded appellees the relief that they sought.
As appellees concede, the sole effect of the preliminary
injunction was to prevent NSF from appropriating any money
already collected from the registration assessment. In other
words, the relief merely preserved the status quo pending
final adjudication of the case. And upon granting NSF’s
motion to dismiss the case, the District Court vacated the
preliminary injunction. In short, the preliminary injunction
did not change the legal relationship between the parties in a
way that afforded appellees the relief they sought in their
lawsuit.
The facts in this case are easily distinguishable from cases
in which we have found that ‘‘the subsequent mootness of the
2We do not address here the application of Buckhannon to
administrative proceedings provided for by certain statutes. See
Moore v. District of Columbia, 907 F.2d 165 (D.C. Cir. 1990).
12
case [did not] necessarily alter the plaintiffs’ status as prevail-
ing parties.’’ Nat’l Black Police Ass’n v. D.C. Bd. of Elec-
tions, 168 F.3d 525, 528 (D.C. Cir. 1999); Grano v. Barry, 783
F.2d 1104, 1108-09 (D.C. Cir. 1986). The specific relief
granted in those cases was concrete and could not be re-
versed 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.3d at 1108. That reprieve was unchanged
when the case was later declared moot, because the referen-
dum in question had already occurred. The injunction pro-
duced a lasting change in the parties’ legal circumstances and
gave the plaintiffs the precise relief that they had sought.
That is not the case here. Appellees filed a lawsuit in order
to obtain a refund from NSF, but the preliminary injunction
did nothing to vindicate that claim.
Appellees’ claim fares no better with respect to the partial
summary judgment. That order merely declared that the
disputed Preservation Assessment was an unconstitutional
tax. The partial summary judgment did not afford appellees
any concrete relief, beyond this mere legal declaration. As
noted above, Buckhannon and Hewitt make it clear that a
mere ‘‘judicial pronouncement that the defendant has violated
the Constitution,’’ unaccompanied by ‘‘judicial relief,’’ is not
sufficient to make a claimant a ‘‘prevailing party.’’ Buckhan-
non, 532 U.S. at 606; Hewitt, 482 U.S. at 761. This type of
‘‘judicial decree’’ is not enough to warrant a fee award,
because it represents ‘‘not the end but the means’’ of the
litigation. Hewitt, 482 U.S. at 761. A declaration must
require ‘‘some action (or cessation of action) by the defendant
that the judgment produces – the payment of damages, or
specific performance or the termination of some conduct.’’
Id. The partial summary judgment in this case did not
achieve any such results.
In sum, neither the vacated preliminary injunction nor the
vacated partial summary judgment can justify an award of
fees in this case.
13
III. CONCLUSION
For the reasons given above, the judgments of the District
Court in favor of appellees are hereby reversed and the case
is dismissed.