found that the defendants’ voluntary actions had not rendered the case moot and entered a partial judgment declaring particular aspects of defendants’ Final Rule arbitrary and capricious. Lake Pilots, 257 F.Supp.2d at 157. With respect to those portions of the Final Rule declared to be arbitrary and capricious, the Final Rule was remanded to the agency for further proceedings. The Supreme Court made has it clear in that a remand, standing alone, does not preclude a party from achieving prevailing party status. Shalala v. Schaefer, 509 U.S. 292, 300-301, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Rather, the question is whether the plaintiff prevailed on the merits of the challenge. See Massachusetts Fair Share v. Law Enforcement Assistance Admin., 776 F.2d 1066, 1068 (D.C.Cir.1985) (<HOLDING>). As noted above, the Court in Kennecott, 804
holding that an order by the trial court remanding the cause to the agency to impose a sanction other than the one imposed by the agency was not a final and appealable order because it did not terminate the litigation between the parties on the merits holding that the plaintiff had established an entitlement to relief on the merits of the claim  and was therefore entitled to fees even though it was remanded to the agency for further action holding that the party seeking contractual attorneys fees is entitled to a decision on the merits holding that the husbands failure to argue his entitlement to attorneys fees under a prenuptial agreement at a hearing held on the issue of entitlement to attorneys fees constituted an abandonment of that claim holding that even though the complaint was dismissed without prejudice as a sanction for misconduct and even though the order of dismissal was therefore not an adjudication on the merits the defendants were nevertheless properly considered the prevailing party for purposes of attorneys fees