from the United States Court of Federal Claims in No.
1:15-cv-00808-MMS, Judge Margaret M. Sweeney.
K. Lasky, Oles Morrison Rinker & Baker LLP, Seattle, WA,
argued for plaintiff-appellee. Also represented by Shaun
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.
Lourie, Reyna, and Wallach, Circuit Judges.
WALLACH, CIRCUIT JUDGE.
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 comments 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.
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 improperly 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 Army failed to perform an adequate cost
realism analysis before awarding the contract to
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 provided
"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. 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 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 explicitly 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.
Joint Status Report, the Government announced that the Army
had determined that certain changes in conditions had
occurred, resulting in a decrease 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 argument . . ., 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.
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.
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. Relevant 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 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
therefore 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.
instant appeal followed. We possess subject matter