so far as to include a “catalyst theory,” whereby a party seeks to recover due to a defendant’s “voluntary change in conduct” that “lacks the necessary judicial imprimatur on the change.” Id. at 605, 121 S.Ct. 1835 (emphasis in original). The First Circuit, in Smith v. Fitchburg Public Schools, 401 F.3d 16 (1st Cir.2005) interpreted Buckhannon Board and Care Home, Inc. as requiring two elements: (1) a “material alteration of the legal relationship of the parties,” along with (2) a “judicial imprimatur on the change.” Smith, 401 F.3d at 22. There is no question that the first element is satisfied in this case. The adversarial action that resulted in a conciliatory order of as to whether orders dismissing a case could constitute the functional equivalent of a consent decree. Id. at 24 (<HOLDING>). The government argues that the order of
holding that the appellant waived an argument listed only in his summary of the argument holding appellant waived argument by failing to assert it at suppression hearing holding that argument raised at oral argument that was not included in brief is waived holding that because the appellant did not present to the administrative agency the argument it raised before this court the issue was not preserved and holding that even if preserved the argument failed holding that the appellant waived this argument