Dellew Corporation v. United States

United States Court of Appeals
for the Federal Circuit
______________________
DELLEW CORPORATION,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
TECH SYSTEMS, INC.,
Defendant
______________________
2016-2304
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00808-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: May 1, 2017
______________________
ADAM K. LASKY, Oles Morrison Rinker & Baker LLP,
Seattle, WA, argued for plaintiff-appellee. Also repre-
sented by SHAUN CHRISTOPHER KENNEDY.
ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellant. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER.
2 DELLEW CORP. v. UNITED STATES
______________________
Before LOURIE, REYNA, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Appellant United States (“the Government”) appeals
the opinion and order of the U.S. Court of Federal Claims
awarding attorney fees and costs to Appellee Dellew
Corporation (“Dellew”) pursuant to the Equal Access to
Justice Act (“the EAJA”), 28 U.S.C. § 2412(a), (d)(1)(A)
(2012). The central question here is whether comments
that the Court of Federal Claims made during a hearing
and prior to the Government taking corrective action
materially altered the relationship between the parties
such that Dellew qualified as a “prevailing party” under
the EAJA. The Court of Federal Claims found its com-
ments sufficient to confer prevailing party status on
Dellew. See Dellew Corp. v. United States (Dellew II), 127
Fed. Cl. 85, 89–95 (2016). We reverse because a strong
comment by a trial court is not tantamount to a ruling on
the merits or a court order.
BACKGROUND
The parties do not dispute the facts material to the
instant appeal. The U.S. Department of the Army (“the
Army”) awarded a contract to Tech Systems, Inc. (“TSI”)
for “logistics support services” at the Schofield Barracks
in Hawai’i. Id. at 87 (citation omitted). Dellew filed a
post-award bid protest against the Government in the
Court of Federal Claims, alleging that the Army improp-
erly awarded TSI a contract because (1) TSI did not
accept a material term of the request for proposals when
it refused to cap its proposed general and administrative
rate, and (2) the contract awarded varied materially from
TSI’s proposal. J.A. 53–56. Dellew also argued that the
DELLEW CORP. v. UNITED STATES 3
Army failed to perform an adequate cost realism analysis
before awarding the contract to TSI. 1 J.A. 56–57.
After the Government filed the administrative record
and the parties briefed the merits, the Court of Federal
Claims held oral argument. Dellew II, 127 Fed. Cl. at 87.
During oral argument, the Court of Federal Claims pro-
vided “hint[s]” about its views favorable to Dellew on the
merits, J.A. 65; see J.A. 70–71 (discussing cost realism),
79 (discussing the general and administrative rate), 112–
13 (discussing change in material terms), and stated that
it had drafted an opinion, J.A. 143–44. The Court of
Federal Claims also repeatedly expressed its belief that
corrective action would be appropriate. 2 J.A. 126 (“I also
would strongly suggest to the Army that they think about
taking corrective action . . . .”), 128 (“[A] corrective action
should be taken in this case . . . .”), 137 (similar), 139
(similar), 145–46 (similar). Indeed, the Court of Federal
1 A cost realism analysis requires the Government
to
independently review[] and evaluat[e] specific el-
ements of each offeror’s proposed cost estimate to
determine whether the estimated proposed cost
elements are realistic for the work to be per-
formed; reflect a clear understanding of the re-
quirements; and are consistent with the unique
methods of performance and materials described
in the offeror’s technical proposal.
48 C.F.R. § 15.404-1(d)(1) (2015).
2 Although not defined by statute or regulation,
“corrective action” in the bid protest context generally
means “agency action, usually taken after a protest has
been initiated, to correct a perceived prior error in the
procurement process, or, in the absence of error, to act to
improve the competitive process.” Appellant’s Br. 2 n.1.
4 DELLEW CORP. v. UNITED STATES
Claims encouraged the Army to “tak[e] corrective action
now” so that it could avoid issuing “a needless ruling.”
J.A. 126. The Court of Federal Claims set a schedule for
the parties to provide a joint status report approximately
ten days after the hearing, J.A. 152, 156–57, and explicit-
ly agreed not to issue a decision until it received the
report, J.A. 153. The Court of Federal Claims also left
open the possibility of additional briefing. J.A. 68–69,
126.
In the Joint Status Report, the Government an-
nounced that the Army had determined that certain
changes in conditions had occurred, resulting in a de-
crease in the contract value and requiring an amendment
to the solicitation. J.A. 163. As a result of these changed
conditions, “as well as the discussions held at oral argu-
ment . . . , the Army determined to take corrective action.”
J.A. 163. The Army subsequently terminated the contract
with TSI, and the Government filed a motion to dismiss
Dellew’s protest as moot in light of the corrective action.
The Court of Federal Claims granted the Motion and
dismissed Dellew’s action. Dellew Corp. v. United States
(Dellew I), 124 Fed. Cl. 429, 432–33 (2015). In dismissing
the action, the Court of Federal Claims declined Dellew’s
invitation to “issue findings of fact and conclusions of law
that [Dellew] is a ‘prevailing party’” because doing so
would require the Court of Federal Claims to “issue an
advisory opinion.” Id. at 432 n.2. Notwithstanding
mootness, the Court of Federal Claims determined that it
retained jurisdiction over the action. Id. at 432.
Dellew subsequently sought attorney fees and costs
from the Government under the EAJA, and the Court of
Federal Claims awarded Dellew a total of $79,456.76 in
fees and costs. See Dellew II, 127 Fed. Cl. at 101. Rele-
vant here, the Court of Federal Claims held that it made
“numerous substantive comments during oral argument
regarding the merits,” id. at 92, that “carried a sufficient
DELLEW CORP. v. UNITED STATES 5
judicial imprimatur to materially alter the relationship
between [Dellew] and [the Government] such that
[Dellew] qualifies as a prevailing party under the EAJA,”
id. at 89. After surveying the relevant authorities, id. at
89–92, the Court of Federal Claims articulated four
grounds for its decision, id. at 92–94. First, it explained
that, at oral argument, it “clearly stated its view that” the
Government would lose on the merits and “that it there-
fore intended to rule in Dellew’s favor with respect to th[e]
issue[s].” Id. at 92. Second, it stated that it “made clear
its view that the Army should take corrective action.” Id.
at 93. Third, it determined that the Army’s corrective
action was not voluntary. Id. at 94. Finally, it explained
that its comments were made after the parties briefed the
case and after it had drafted (though not issued) a written
decision. Id. Taken together, the Court of Federal Claims
held that the Government knew “how it intended to rule”
and, thus, found it appropriate to confer prevailing party
status on Dellew. Id. at 92.
The instant appeal followed. We possess subject mat-
ter jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
I. Standard of Review
We generally review the award of attorney fees and
costs under the EAJA for an abuse of discretion. See Int’l
Custom Prods., Inc. v. United States, 843 F.3d 1355, 1358
(Fed. Cir. 2016). However, “[t]he question of whether a
party qualifies as a ‘prevailing party’ under the EAJA is a
question of law” that we “review de novo.” Rice Servs.,
Ltd. v. United States, 405 F.3d 1017, 1021 (Fed. Cir. 2005)
(citation omitted).
6 DELLEW CORP. v. UNITED STATES
II. The Court of Federal Claims Improperly Awarded
Attorney Fees and Costs to Dellew Under the EAJA
A. Legal Framework
“In the United States, parties are ordinarily required
to bear their own attorney[] fees—the prevailing party is
not entitled to collect from the loser.” Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.,
532 U.S. 598, 602 (2001). Described as the “American
Rule,” that practice proscribes an award of attorney fees
unless otherwise provided by statute. Id. Absent a
waiver of sovereign immunity, a party may not recover
attorney fees in suits against the Government. See Chiu
v. United States, 948 F.2d 711, 714 (Fed. Cir. 1991).
The EAJA waives the sovereign immunity of the
United States to enable certain parties to seek attorney
fees and costs against the Government under certain
circumstances. See Fidelity Constr. Co. v. United States,
700 F.2d 1379, 1385–86 (Fed. Cir. 1983). The EAJA
provides that
a court shall award to a prevailing party other
than the United States fees and other expens-
es . . . incurred by that party in any civil ac-
tion . . . brought by or against the United
States . . . 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) (emphasis added). The appeal
hinges on whether Dellew meets the definition of “prevail-
ing party” under the EAJA.
Neither a statute nor a regulation defines “prevailing
party” for EAJA purposes. However, the Supreme Court
has held that “prevailing party,” as used in other statutes,
means a party that obtains a “material alteration of the
legal relationship of the parties.” Buckhannon, 532 U.S.
at 604 (internal quotation marks and citation omitted).
DELLEW CORP. v. UNITED STATES 7
The Supreme Court also explained that the change in the
parties’ legal relationship must have a certain “judicial
imprimatur,” id. at 605, such as an “enforceable judg-
ment[] on the merits” or a “court-ordered consent de-
cree[],” id. at 604 (citation omitted). It further held that a
prevailing party does not include a party who obtained
relief through “a defendant’s voluntary change in con-
duct.” Id. at 605. We extended these principles to the
EAJA, see Brickwood Contractors, Inc. v. United States,
288 F.3d 1371, 1377–79 (Fed. Cir. 2002), and later ex-
plained that the Buckhannon “threshold can also be met
by other court action ‘equivalent’ to a judgment on the
merits or a court-ordered consent decree,” as long as “it
carries sufficient judicial imprimatur to materially change
the legal relationship of the parties,” Rice, 405 F.3d at
1026.
B. Dellew Is Not a Prevailing Party Under the EAJA
The Government contends that the Court of Federal
Claims committed three errors in determining that
Dellew qualifies as a prevailing party under the EAJA.
See Appellant’s Br. 16–29. We agree with each of the
Government’s arguments and address them in turn.
1. The Government Voluntarily Took Corrective Action
The first argument concerns the nature of the Gov-
ernment’s corrective action. The Court of Federal Claims
held that “the Army did not voluntarily decide to take
corrective action” because “[i]t only did so following . . .
the [G]overnment’s realization that the court was not
swayed by its argument” and otherwise “understood how
the court intended to rule.” Dellew II, 127 Fed. Cl. at 94,
95. The Government argues that, “[b]ecause the Army
acted without any corresponding court order requiring
such action,” the Army voluntarily took corrective action
such that the Court of Federal Claims could not have
made the requisite change in the legal relationship be-
tween the parties. Appellant’s Br. 17; see id. at 17–19.
8 DELLEW CORP. v. UNITED STATES
Precedent firmly weighs in the Government’s favor. It
is undisputed here that the Government took corrective
action before the Court of Federal Claims issued a written
or oral ruling on the merits. See Dellew II, 127 Fed. Cl. at
92 (“In the case at bar, the court did not issue a written
opinion on the merits. Nor did the court issue a consent
decree based on an agreement between the parties. The
court did, however, make numerous substantive com-
ments during oral argument regarding the merits of the
case and how it intended to rule . . . .” (emphases added)).
Irrespective of the Court of Federal Claims’s expectations
about a future ruling or its impressions as to the Govern-
ment’s motivation for taking the corrective action, an
agency acts voluntarily if it takes corrective action before
the Court of Federal Claims provides a written or oral
ruling on the merits that changes the parties’ legal rela-
tionship. See Rice, 405 F.3d at 1027 (explaining that an
agency acts “voluntarily” if it undertakes “remedial action
before any rulings by the Court of Federal Claims”).
Voluntary action cannot provide a sufficient basis for a
court to confer prevailing status on a party. See Buck-
hannon, 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 neces-
sary judicial imprimatur on the change.”). To hold other-
wise would reanimate the catalyst theory that the
Supreme Court rejected in Buckhannon. See id. at 601,
605 (explaining that the “catalyst theory . . . posits 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” and rejecting that
theory as inconsistent with precedent).
2. The Court of Federal Claims’s Comments Lacked
Sufficient Judicial Imprimatur to Materially Change the
Legal Relationship of the Parties
The second argument concerns the substance of the
comments that the Court of Federal Claims made during
DELLEW CORP. v. UNITED STATES 9
the hearing. Because it stated its intent “to rule in
Dellew’s favor” and emphasized that “the Army should
take corrective action,” the Court of Federal Claims
determined that its comments carried a sufficient judicial
imprimatur to change the parties’ legal relationship.
Dellew II, 127 Fed. Cl. at 92, 93; see id. at 92–94. The
Government argues that the Court of Federal Claims’s
comments did not carry a sufficient judicial imprimatur to
materially change the legal relationship of the parties
because they did not constitute “court-ordered relief.”
Appellant’s Br. 19 (capitalization omitted); see id. at 19–
22. Without the requisite imprimatur, the Government
alleges that Dellew does not constitute a prevailing party
under the EAJA. See id. at 19–22.
Our decision in Brickwood firmly resolves this aspect
of the prevailing party question. There, we determined
that comments about the merits made by the Court of
Federal Claims during a hearing did not constitute suffi-
cient grounds upon which to confer prevailing party
status pursuant to the EAJA. See 288 F.3d at 1380–81.
Absent an “oral judgment,” id. at 1381, we held that “the
cited comments are clearly not sufficient to establish a
judicial imprimatur and they do not constitute a ‘court-
ordered change in the legal relationship’ of the parties as
Buckhannon requires,” id. at 1380. Here, the Court of
Federal Claims at most described how it “intended” to
rule. Dellew II, 127 Fed. Cl. at 92. Indeed, the Court of
Federal Claims encouraged, but did not require, the Army
to take particular action. See, e.g., J.A. 126 (“I also would
strongly suggest to the Army that they think about taking
corrective action . . . .”); see also J.A. 145, 147 (using “if”
and “when” to describe the scope of any potential Army
corrective action). Moreover, the Court of Federal Claims
offered the Government an opportunity for further brief-
ing, leaving open how the case would proceed, and it
explicitly postponed a ruling pending receipt of the Joint
Status Report. See, e.g., J.A. 68–69, 150, 153. The Court
10 DELLEW CORP. v. UNITED STATES
of Federal Claims’s comments as a whole demonstrate
that it did not require the Government to act in any
manner; instead, it offered the Government an opportuni-
ty to take whatever corrective action it believed might be
appropriate. Without more, the Court of Federal Claims’s
comments did not carry a sufficient judicial imprimatur to
change the legal relationship between the parties.
Apart from conflicting with precedent, the Court of
Federal Claims adopted an unworkable standard that
equates a non-binding oral comment with a ruling. The
Court of Federal Claims knows how to rule orally when
the circumstances so require. See, e.g., Orion Tech., Inc.
v. United States, 101 Fed. Cl. 492, 493 (2011) (stating that
its decision “explains in more detail the oral rulings made
by the court” in a prior hearing). In the absence of an oral
ruling, experience teaches us that comments made from
the bench do not always match the content of a later
written opinion. For that reason, unless the issue on
appeal concerns an oral ruling, we generally “rely on the
court’s written opinion rather than its oral statement
during a hearing.” Galen Med. Assocs., Inc. v. United
States, 369 F.3d 1324, 1331 (Fed. Cir. 2004). To hold
otherwise would require parties to divine the presiding
court’s actual holding from the often messy entrails of
spontaneous comments. That kind of divination has no
support in a legal system which values predictability as a
pillar of the rule of law.
3. The Court of Federal Claims Failed to Follow Relevant
Precedent
The final argument concerns the legal authority relied
upon by the Court of Federal Claims. Throughout its
decision, the Court of Federal Claims relied substantially
upon its decision in Universal Fidelity LP v. United
States, 70 Fed. Cl. 310 (2006). See Dellew II, 127 Fed. Cl.
at 91–92, 94–95. In Universal Fidelity, the Court of
Federal Claims held that a preliminary order intending to
DELLEW CORP. v. UNITED STATES 11
enjoin a solicitation carried a sufficient judicial imprima-
tur to materially change the parties’ legal relationship
and, thus, to confer prevailing party status on the plain-
tiff. See 70 Fed. Cl. at 314–16. The Government avers
that the Court of Federal Claims improperly relied upon
Universal Fidelity and failed to follow our binding prece-
dent. See Appellant’s Br. 22–26.
The Court of Federal Claims erred in relying upon
Universal Fidelity for two reasons. First, the Court of
Federal Claims gave greater weight to Universal Fidelity
than Buckhannon, Rice, and Brickwood. See Dellew II,
127 Fed. Cl. at 94–95 (“[T]he court concludes that there is
good cause to extend the holding in Universal Fidelity [],
which dealt with a written order, to the oral comments
made in this case. In both cases: (1) the matter was fully
briefed at the time the statements were made, (2) the
court arrived at legal conclusions after considering the
merits of the parties’ positions, (3) the parties were made
aware of those legal conclusions, and (4) defendant took
corrective action after having been made aware of the
court’s position.”). We reaffirm a well-known principle
that the Court of Federal Claims failed to follow here: the
Court of Federal Claims must follow relevant decisions of
the Supreme Court and the Federal Circuit, not the other
way around. 3 See Coltec Indus., Inc. v. United States, 454
F.3d 1340, 1353 (Fed. Cir. 2006) (“There can be no ques-
tion that the Court of Federal Claims is required to follow
3 Of course, if precedent from the Supreme Court
and our court does not answer the particular question
presented, the Court of Federal Claims may rely upon its
own decisions. Even then, “Court of Federal Claims
decisions, while persuasive, do not set binding precedent
for separate and distinct cases in that court.” W. Coast
Gen. Corp. v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994)
(citations omitted).
12 DELLEW CORP. v. UNITED STATES
the precedent of the Supreme Court, our court, and our
predecessor court, the Court of Claims.” (citation omit-
ted)). Second, even if it had the same authoritative
weight as decisions of superior courts, Universal Fidelity
is distinguishable. Unlike here, the Court of Federal
Claims in Universal Fidelity reduced its views of the
merits to an order. See 70 Fed. Cl. at 311. For these
reasons, the Court of Federal Claims improperly relied
upon Universal Fidelity to find that Dellew qualified as a
prevailing party under the EAJA. 4
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Opinion
and Order of the U.S. Court of Federal Claims awarding
attorney fees and costs to Dellew under the EAJA is
REVERSED
COSTS
Costs to the Government.
4 Throughout its response brief, Dellew argues that
the court should follow, inter alia, the Seventh Circuit’s
decision in Palmetto Properties, Inc. v. County of DuPage.
See Appellee’s Br. 18–55 (discussing 375 F.3d 542 (7th
Cir. 2004)). The Seventh Circuit’s decision does not
control here because our decisions in Rice and Brickwood
are dispositive, and we must follow them. See Deckers
Corp. v. United States, 752 F.3d 949, 959 (Fed. Cir. 2014)
(“[A] later panel is bound by the determinations of a prior
panel, unless relieved of that obligation by an en banc
order of the court or a decision of the Supreme Court.”).