Plaintiff was the prevailing party for the purpose of an attorney fee award under the EAJA.  Plaintiff sued the Secretary of HHS to reverse his approval of an Arizona demonstration project.  The district court found that the approval violated the Administrative Procedure Act and remanded the matter to the Secretary of HHS to make a proper determination in accordance with the APA.  The Secretary did so, again approving the project.  Through the suit, the plaintiff had won a judicially sanctioned material alteration of the parties’ legal relationship, requiring the Secretary to consider plaintiff’s objections to the project’s approval, which the Secretary had ignored the first time around.  The fact that the district court did not vacate the approval when it remanded the case to the Secretary did not change prevailing party status since the district court decided against vacatur simply to allow the program to serve a poor, vulnerable population while the Secretary reconsidered the issue.  Unlike the preliminary injunction in Sole v. Wyner (2007) 127 S.Ct. 2188, the remand here permanently altered the parties’ rights.

Ninth Circuit Court of Appeals (McKeown, J.); September 14, 2016; 2016 WL 4784041