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VON LUETZOW v. DIRECTOR

March 23, 1983

Hans Baussus VON LUETZOW, Plaintiff,
v.
DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT, Defendant



The opinion of the court was delivered by: GREEN

 JUNE L. GREEN, District Judge.

 This action is before the Court on plaintiff's motion for costs and attorney's fees under the Equal Access to Justice Act, codified at 28 U.S.C. § 2412 (Supp. V 1981). The Court denies the motion without prejudice for the reasons set forth below.

 The plaintiff is a physical scientist with the U.S. Army Engineer Topographic Laboratories employed at the GS-15 level. In his complaint, he alleged that the Office of Personnel Management (OPM) unlawfully denied his appeal to be reclassified to grade GS-16 and instead reduced his position to grade GS-14. He sought reversal of the OPM decision and retroactive promotion to grade GS-16.

 The Court vacated OPM's decision and remanded the case to OPM for a comparison of plaintiff's position with those which he claimed were substantially equal to his. Hans Baussus von Luetzow v. Director, Office of Personnel Management, No. 82-772 (D.D.C. September 29, 1982). Both parties appealed. While the appeals were still pending, plaintiff filed a motion for attorney's fees. The Court stayed consideration of the motion pending disposition of the appeals. The cross appeals have now been dismissed by stipulation of the parties.

 Section 2412(d)(1)(A) of Title 28, as amended, provides:

 
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a) . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

 Plaintiff is ineligible for an award at this time because he is not yet a prevailing party.

 None of these conditions apply here. The Court remanded the action for further proceedings consistent with the Superguide *fn1" procedures. The panel reviewing plaintiff's position found plaintiff fit within GS-16 classification but failed to compare his work situation with GS-16 employees. In these circumstances, the panel was required to compare his position with others which plaintiff alleged were substantially equivalent to his. Jarecki v. United States, 590 F.2d 670 (7th Cir.1979); Haneke v. Secretary of Health, Education and Welfare, 175 U.S. App. D.C. 329, 535 F.2d 1291 (D.C.Cir.1976). The Court did not decide the substantive merits of plaintiff's claim that OPM erred in not reclassifying him to GS-16, nor did it decide OPM erred in any of six other procedural ways claimed.

 Plaintiff's success on the procedural point resulted in a remand to OPM for further consideration. A party who obtains nothing more than a remand for further consideration has not prevailed on the merits of his claim. Hanrahan v. Hampton, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980) (per curiam). In Hanrahan, the Supreme Court construed 42 U.S.C. § 1988, as amended, which also permits the award of attorney's fees only to a "prevailing party." The Court determined "that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims." (Emphasis added.) Id., at 758, 100 S. Ct. at 1989. Reversal of a directed verdict and remand for further consideration was found not to support an award of attorney's fees. The District of Columbia Circuit reviewed the meaning of "prevailing party" in Commissioners Court of Medina County, Texas v. United States, 221 U.S. App. D.C. 116, 683 F.2d 435 (D.C.Cir.1982) (Medina). In that case, the plaintiff sought attorney's fees under the Voting Rights Act of 1965, 42 U.S.C. § 1973 l (e) (Supp. III 1979). The court determined:

 
Courts have developed a two-prong test to govern the [scope and proper focus of the "prevailing party"] inquiry: first, the party must have substantially received the relief sought, and, second, the lawsuit must have been a catalytic, necessary, or substantial factor in attaining the relief. (citations omitted)

 Id., at 440. The Medina court noted that the prevailing party inquiry "is generally the same for any type of case in which there has been no judgment on the merits." Id., at 440 n. 6. Here, Dr. Baussus von Leutzow did not attain the relief he sought, i.e., reversal of the OPM decision and promotion to GS-16. Nor has remand to OPM resulted in promotion to GS-16. He has not yet prevailed on the underlying merits of his claim. See NLRB v. Doral Building Services, Inc., 666 F.2d 432 (9th Cir.1982).

 Plaintiff presents three arguments to support his contention that he is a prevailing party. First, he contends that the Court's reversal of OPM's decision reinstated nunc pro tunc his former grade of GS-15 and set aside the Army's implementation of the OPM decision to reduce him to GS-14. Secondly, he alleges that one purpose of the lawsuit was to require his position be compared with others substantially equivalent to his, and he attained that comparison. Thirdly, he asserts that an award of attorney's ...


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