EAJA Fees After New-Evidence Remands: No “Prevailing Party” Status Absent Agency Error, and Substantial Justification May Exist on a Sparse Administrative Record

1. Introduction

In Savelkoul v. Driscoll (10th Cir. July 6, 2026) (nonprecedential “Order and Judgment”), Joshua Savelkoul—a U.S. Army soldier wounded by sniper fire in Iraq in 2006—sought attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), after ultimately receiving the Purple Heart. The dispute on appeal was not the medal itself (the Army awarded it after remand), but whether Savelkoul could recover fees from the United States.

The key issues were (i) whether Savelkoul qualified as a “prevailing party” when the district court remanded to the Army Board for Correction of Military Records (“ABCMR”) to consider a doctor’s later declaration, and (ii) whether the government’s position—both at the agency level and in litigation—was “substantially justified.”

2. Summary of the Opinion

The Tenth Circuit affirmed denial of EAJA fees on two independent grounds:

  1. No prevailing-party status: The district court’s remand was not based on an identified agency error in the original ABCMR decision; it was to allow consideration of new evidence (a post hoc declaration by the treating physician). A remand of that character did not materially alter the parties’ legal relationship with the requisite “judicial imprimatur.”
  2. Government substantially justified: Even though the Army initially denied the Purple Heart and later changed course, the government’s position was reasonable given the sparse/unclear administrative record and the timing/content of the later declaration. The government also acted reasonably in litigation by promptly seeking remand upon seeing the declaration and, once remand was opposed, defending the administrative-record rule.

3. Analysis

A. Precedents Cited

1) Prevailing-party framework and “judicial imprimatur”

  • Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Hum. Res., 532 U.S. 598 (2001): The court applied Buckhannon’s rule that a party must obtain court-awarded relief (not merely induce a voluntary change in government conduct) and that the change must be judicially sanctioned. This case supplied the core distinction between (a) success attributable to a court order altering legal rights and (b) success attributable to the defendant’s voluntary change.
  • Iqbal v. Holder, 693 F.3d 1189 (10th Cir. 2012): Central to the decision. The panel analogized Savelkoul’s remand to the remand in Iqbal, where the district court ordered USCIS to reconsider a naturalization application only because USCIS had acted without jurisdiction, not because the merits were wrong. In both, the remand did not command a particular substantive outcome and “left the matter to the [agency]’s discretion.”
  • Al- Maleki v. Holder, 558 F.3d 1200 (10th Cir. 2009): Used as the contrasting example. In Al- Maleki, the remand order imposed a judicially enforceable obligation (administer the oath by a date certain), placing “the weight of judicial authority” behind the applicant’s entitlement. That kind of remand can confer prevailing-party status; Savelkoul’s did not.
  • CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419 (2016): Cited for the “touchstone” concept: a “material alteration of the legal relationship of the parties.” The panel emphasized that the remand here provided only an opportunity for reconsideration, not a judicially mandated entitlement.
  • Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360 (Fed. Cir. 2003): The opinion adopted the Federal Circuit’s reasoning that a remand to permit consideration of evidence previously not presented to the agency is not “relief on the merits” sufficient for prevailing-party status.
  • Ward v. U.S. Postal Serv., 672 F.3d 1294 (Fed. Cir. 2012) and Marshall v. Comm'r of Soc. Sec., 444 F.3d 837 (6th Cir. 2006): These were cited to show broader consensus: remands “not rooted in agency error” typically do not produce prevailing-party status, and a mere remand for further proceedings is not enough.
  • Beach Blitz Co. v. City of Miami Beach, 13 F.4th 1289 (11th Cir. 2021) and Winters v. Wilkie, 898 F.3d 1377 (Fed. Cir. 2018): Noted for discussion about whether CRST changed prevailing-party analysis in some contexts. The panel relied on Winters for the proposition that CRST did not eliminate the “material alteration” requirement.

2) Substantial justification standard

  • Pierce v. Underwood, 487 U.S. 552 (1988): Provided both (i) the abuse-of-discretion review framework for EAJA determinations and (ii) the core definition of “substantially justified” as a test of “reasonableness.”
  • Hackett v. Barnhart, 475 F.3d 1166 (10th Cir. 2007): Set out EAJA’s three elements (prevailing party, lack of substantial justification, no special circumstances) and reaffirmed that the government bears the burden on substantial justification and may still be “substantially justified” even if ultimately incorrect.
  • Madron v. Astrue, 646 F.3d 1255 (10th Cir. 2011): Reinforced that the government’s position can be substantially justified “even though it is not correct,” which mattered where the Army’s initial denial was later reversed after new evidence.
  • Gutierrez v. Sullivan, 953 F.2d 579 (10th Cir. 1992): Cited for the proposition that evidentiary support can “reasonably support” the government’s legal conclusions—used here to frame why the pre-declaration record did not compel a Purple Heart award.

3) Administrative record principle in APA litigation

  • Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020): Cited for the general rule that judicial review of agency action “generally focuses on the administrative record in existence at the time of the agency’s decision,” supporting the government’s litigation position that the late declaration could not be used to attack the ABCMR decision absent remand.

4) Standard of review in the EAJA appeal

  • United States v. Kirby, 161 F.4th 1208 (10th Cir. 2025): Cited for what constitutes abuse of discretion (legal error, clearly erroneous factfinding, or clear error in judgment).

B. Legal Reasoning

1) Why the remand did not make Savelkoul a “prevailing party”

The panel’s controlling move was to classify the remand correctly. The district court remanded because Captain Yamamoto’s 2023 declaration was “new evidence” that “speaks directly to the sole disputed issue” and “fundamentally undermine[d] the agency’s stated basis” by supporting the proposition that the wound could be life-threatening and required treatment by a medical officer. But the remand did not rest on a judicial determination that the ABCMR had committed a reversible merits error in applying Army Regulation 600-8-22 on the record then before it.

Under Buckhannon, Iqbal, and CRST Van Expedited, Inc. v. EEOC, prevailing-party status requires a judicially sanctioned, material alteration in the parties’ legal relationship. The remand here did not:

  • Order the ABCMR to award the Purple Heart;
  • Impose a judicially enforceable deadline or obligation akin to Al- Maleki v. Holder;
  • Hold that the ABCMR’s prior decision was unlawful on the administrative record.

Instead, it provided a procedural opportunity for the agency to reconsider with additional evidence—precisely the situation that Former Emps. of Motorola Ceramic Prods. v. United States treats as insufficient to create prevailing-party status.

2) Why the government was “substantially justified”

The court evaluated “the position of the United States” as encompassing both (i) the agency’s action that precipitated the suit and (ii) the government’s litigation stance. Applying Pierce v. Underwood and Hackett v. Barnhart, the court asked whether the overall position was reasonable.

(a) Agency level

Savelkoul argued the agency invented an “additional treatment” requirement. The panel acknowledged the HRC used the word “additional,” but emphasized that the ABCMR (on appeal) accurately quoted the regulation and framed the issue as whether the injury was severe enough to require treatment by a medical officer. Any arguable misstatement by HRC was treated as not clearly outcome-determinative and, in any event, potentially cured by the ABCMR’s articulation.

Critically, the panel found the pre-declaration evidence did not clearly compel awarding the Purple Heart: the photo was ambiguous; the trauma record was “mostly illegible”; the “return to duty” checkmark suggested limited severity; and the medic’s statement did not establish qualifying treatment. The panel also rejected the contention that medic treatment supplied an independent path because Army Regulation 600-8-22 excludes “combat medics” from the definition of “medical professional” for the relevant substitution provision.

(b) Litigation level

The panel treated the government’s litigation conduct as notably reasonable:

  • After seeing the Yamamoto declaration, the government moved to remand so the ABCMR could consider it “in the first instance.”
  • Once Savelkoul opposed remand, the government defended the administrative-record limitation, consistent with Zzyym v. Pompeo.
  • It defended the ABCMR decision as not arbitrary/capricious on the limited record then available—especially given the declaration was secured 17 years after the injury.

This is an important EAJA point: the court did not treat the government’s later loss (award of the Purple Heart after remand) as proof the earlier position was unreasonable. Consistent with Madron v. Astrue, the relevant question was whether the government’s stance was “justified to a degree that could satisfy a reasonable person” at the time and on the record.

C. Impact

Although designated nonprecedential, the decision consolidates and applies a practical rule likely to be persuasive in future EAJA disputes in the Tenth Circuit:

  1. New-evidence remands are fee-hostile: Litigants who obtain a remand merely to supplement the administrative record should anticipate difficulty establishing “prevailing party” status unless the remand order itself reflects agency error or imposes a judicially enforceable obligation.
  2. Record quality matters for substantial justification: Where the administrative record is sparse, ambiguous, or illegible, the government may be able to show substantial justification even if the claimant ultimately prevails after later clarification.
  3. Strategic lesson in APA/ABCMR practice: Claimants seeking EAJA fees should prioritize developing the strongest evidentiary record before the agency (including clear medical officer documentation) to increase the likelihood that any remand is tied to agency error rather than to claimant-supplied post hoc evidence.
  4. Remand posture can affect fees: The court’s narrative places weight on the government seeking remand promptly and being “forced to litigate on” after remand was opposed—suggesting that cooperative remand procedures may reduce fee entitlement, while oppositional posture may not improve it.

4. Complex Concepts Simplified

“Prevailing party” (EAJA)
A party is not a prevailing party just because it ultimately gets what it wanted. It must obtain court-ordered relief that changes the parties’ legal relationship in a meaningful, enforceable way (the “judicial imprimatur” requirement).
“Judicial imprimatur”
A court’s official stamp that the result is legally compelled by the court (e.g., a judgment, injunction, or remand with enforceable directions). A remand that simply allows an agency to reconsider with new evidence—without requiring a result—often lacks this.
“Substantially justified”
Not “more likely than not correct,” but “reasonable.” The government can be substantially justified even if it ultimately loses, especially when it acted reasonably on the information and law available at the time.
APA “arbitrary and capricious” review
Courts generally ask whether the agency’s decision was rational and supported by the record it had. They typically do not decide the issue anew as if starting from scratch.
“Administrative record” rule
In most APA cases, the court reviews what the agency had in front of it when it decided. New evidence is usually handled through remand to the agency rather than being weighed by the court against the agency’s earlier decision.

5. Conclusion

Savelkoul v. Driscoll underscores two interlocking EAJA principles in agency-remand litigation: (1) a remand aimed at allowing the agency to consider new evidence—without a judicial finding of merits error or enforceable directions—generally will not make the plaintiff a “prevailing party,” and (2) the government may remain “substantially justified” when it reasonably defends an agency decision on a limited or unclear record, particularly when it promptly seeks remand upon receipt of material new information. The decision is a cautionary guide for litigants: building the strongest possible agency record at the outset is often decisive not only for merits relief, but for any later claim to attorneys’ fees.