Ward v. U.S. Postal Service

United States Court of Appeals
for the Federal Circuit
__________________________

THOMAS O. WARD,
Petitioner,

v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________

2010-3021
__________________________

Petition for review of the Merit Systems Protection
Board in case no. PH0752090126-I-1.
__________________________

ON APPLICATION FOR ATTORNEY FEES
__________________________

MATTHEW J. DOWD, Wiley Rein LLP, of Washington,
DC, filed an application for attorney fees for petitioner.
With him on the application were ROBERT J. SCHEFFEL; of
counsel was JOSEPH J. CHESTER, Caplan & Chester, of
Pittsburgh, Pennsylvania.

SHARI A. ROSE, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, filed a response to the appli-
cation for respondent. With her on the opposition were
TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and DEBORAH A. BYNUM, Assistant
WARD v. USPS 2

Director. Of counsel was MICHAEL J. ELSTON, Appellate
Counsel, Office of the General Counsel, United States
Postal Service, of Washington, DC.
__________________________

Before RADER, Chief Judge, DYK and PROST, Circuit
Judges.
PER CURIAM. Concurring opinion filed by Circuit Judge
PROST, in which Chief Judge RADER joins. Opinion con-
curring in the judgment filed by Circuit Judge DYK.

ORDER

Thomas O. Ward applies for an award of attorney’s
fees and expenses under the Equal Access to Justice Act,
28 U.S.C. § 2412. Because Mr. Ward qualifies as a “pre-
vailing party,” we grant his request.

I

On August 19, 2008, Mr. Ward, a maintenance me-
chanic for the U.S. Postal Service (“Agency”), was in-
volved in an incident with a supervisor in which he
shouted, acted in a manner perceived as threatening, and
disobeyed instructions to remain in the supervisor’s office.
After this incident, the Agency asserted an “Improper
Conduct” charge against Mr. Ward and issued a Notice of
Proposed Removal letter. The letter referenced no other
misconduct aside from that associated with the August
19, 2008 event.

A deciding official subsequently issued a final decision
letter removing Mr. Ward from his position as a mainte-
nance mechanic. Mr. Ward appealed from this decision to
the Merit Systems Protection Board (“Board”). At a
hearing before the administrative judge, it became clear
3 WARD v. USPS

for the first time that the deciding official, in issuing his
removal penalty, relied on other instances of misconduct
by Mr. Ward not associated with the August 19, 2008
incident. In particular, the deciding official testified that
he had ex parte communications with three of Mr. Ward’s
supervisors and one manager, learning from those com-
munications that Mr. Ward had previously exhibited
“loud, belligerent, [and] intimidating behavior.” More-
over, the deciding official represented that he considered
these past instances of misconduct in his Douglas factor
analysis and that these past actions influenced his deci-
sion to remove Mr. Ward. 1

While the Board found error in the deciding official’s
consideration of the past instances of misconduct, it
ultimately sustained the removal penalty. In particular,
the Board performed an independent Douglas factor
analysis in its final decision without considering the past
misconduct, concluding that the removal penalty was still
reasonable. Mr. Ward appealed the Board’s final decision
to this court, arguing that because the Notice of Proposed
Removal letter only addressed the August 19, 2008 inci-
dent, he was not provided an opportunity to rebut the
other misconduct allegations.

On appeal, this court vacated, concluding that the
Board committed two errors. “First, the Board erred in
failing to address the due process concerns arising out of
the Deciding Official’s ex parte communications regarding
Ward’s alleged prior instances of misconduct, which . . .
played a role in [the] penalty determination.” Ward v.
U.S. Postal Serv., 634 F.3d 1274, 1279 (Fed. Cir. 2011).

1 The Douglas factors, which apply in adverse ac-
tion cases, focus the decision maker on the relevant facts
when deciding the penalty. See Douglas v. Veterans
Admin., 5 M.S.P.B. 313 (1981).
WARD v. USPS 4

Specifically, the Board was required to “analyze the
Deciding Official’s ex parte communications under the
Stone framework to determine whether Ward’s due proc-
ess rights were violated” but failed to do so. Id. There-
fore, we remanded the case to the Board for that purpose,
stating that “[i]f the Board finds that the [ex parte] com-
munications did introduce new and material information
in violation of Ward’s due process rights, Ward must be
afforded a ‘constitutionally correct removal procedure.’”
Id. at 1280.

The Board committed its second error when it at-
tempted to cure an underlying Agency procedural error
(i.e., an error committed by the U.S. Postal Service).
Specifically, the Agency initially erred by improperly
considering Ward’s alleged past instances of misconduct
without referencing those incidents in the Notice of Pro-
posed Removal. Id. at 1281. “Despite recognizing this
procedural error, the Board erred in concluding that it
could ‘remedy the error’ by performing an independent
analysis of the Douglas factors to determine whether the
‘removal [was] within the bounds of reasonableness.’” Id.
“Instead, the Board was required to run a harmless error
analysis to determine whether the procedural error
required reversal.” Id. On remand we instructed the
Board to analyze whether the Agency’s procedural error
was harmful, but only if the Board first found that the
deciding official’s reliance on the ex parte communications
caused a due process violation. Id. at 1282-83.

After our remand, the Board remanded the case to the
administrative judge for further factual findings. The
proceedings were subsequently suspended because the
parties entered into settlement discussions. 2 Mr. Ward

2 Mr. Ward ultimately settled his case.
5 WARD v. USPS

now seeks attorney’s fees under 28 U.S.C. § 2412(d) for
the expenses incurred solely in relation to his prior appeal
before this court. He properly filed his application here in
the first instance. Fed. Cir. R. 47.7; see also Ramos v.
Dep’t of Justice, 552 F.3d 1356 (Fed. Cir. 2009).

II

Under our legal system, parties ordinarily bear their
own attorney’s fees (i.e., the prevailing party is not auto-
matically entitled to collect from the loser). Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human
Res., 532 U.S. 598, 602 (2001). Congress, however, has
statutorily authorized an award of attorney’s fees to a
prevailing party in some instances. For example, in the
Equal Access to Justice Act (“EAJA”), Congress author-
ized prevailing parties to collect fees in actions against
the United States provided that certain requirements are
met. 28 U.S.C. § 2412(d)(1)(A).

Specifically, § 2412(d) states:

[e]xcept as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and other ex-
penses, in addition to any costs awarded pursuant
to subsection (a), incurred by that party in any
civil action (other than cases sounding in tort), in-
cluding proceedings for judicial review of agency
action, brought by or against the United States in
any court having jurisdiction of that action, unless
the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.
WARD v. USPS 6

28 U.S.C. § 2412(d)(1)(A). Thus, fees can only be awarded
to “prevailing part[ies]” under EAJA if the government’s
position in the case was not “substantially justified,” if no
“special circumstances make an award unjust,” and if the
party seeking the award timely files its application for
fees to the court. Comm’r, INS v. Jean, 496 U.S. 154, 158
(1990). Only the “prevailing party” element is at issue in
this appeal, as the government does not dispute Mr.
Ward’s contention that the other elements are met. In his
application for attorney’s fees, Mr. Ward asserts that he is
a “prevailing party” under EAJA based on the remand he
obtained from this court to the Merit Systems Protection
Board. Whether Mr. Ward qualifies as a “prevailing
party” under EAJA is a question of law. See Former
Emps. of Motorola Ceramic Prods. v. United States, 336
F.3d 1360, 1363 (Fed. Cir. 2003) (Rader, J., dissenting).

The Supreme Court provided guidance on the mean-
ing of the “prevailing party” term in Buckhannon. 532
U.S. at 598. In particular, the Court explained that
“‘[r]espect for ordinary language requires that a plaintiff
receive at least some relief on the merits of his claim
before he can be said to prevail.’” Id. at 603 (quoting
Hewitt v. Helms, 482 U.S. 755, 760 (1987)). According to
the Court, the extent of this relief must rise to the level of
“enforceable judgments on the merits and court-ordered
consent decrees creat[ing] [a] ‘material alteration of the
legal relationship of the parties.’” Id. at 604. Under this
rule, neither “an interlocutory ruling that reverses a
dismissal for failure to state a claim” nor a “reversal of a
directed verdict” qualifies a plaintiff for prevailing party
status. Id. at 605.

In reaching the conclusion that it did, Buckhannon
explicitly overruled what had become known as the “cata-
lyst theory.” Id. at 610. Under this theory, parties “could
7 WARD v. USPS

obtain a fee award if their suit acted as a ‘catalyst’ for the
change they sought, even if they did not obtain a judg-
ment or consent decree” in their favor. Id. at 625-26
(Ginsburg, J., dissenting). Federal courts had been apply-
ing the catalyst theory to hold that a party could qualify
as “prevailing” so long as its ends were accomplished
because of the litigation. The rule created by the majority
in Buckhannon dismantled the catalyst theory by requir-
ing enforceable judgments on the merits or court-ordered
consent decrees.

Notably, EAJA was not specifically at issue in Buck-
hannon, as that case involved the “prevailing party” term
from a different attorney’s fees statute. This court has
concluded, however, that Buckhannon applies with equal
force in the EAJA context. Brickwood Contractors, Inc. v.
United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002); see
also Former Employees, 336 F.3d at 1364 (explaining that
the Supreme Court “has interpreted the phrase ‘prevail-
ing party’ consistently in all federal fee-shifting stat-
utes.”).

Under Buckhannon, a remand contained entirely
within the federal judicial system (e.g., a remand from a
federal appellate court to a district court) “at least in most
circumstances, does not constitute relief on the merits for
the purposes of the fee-shifting statutes.” Former Em-
ployees, 336 F.3d at 1364. As mentioned above, however,
this appeal presents a different type of remand: a remand
from a federal court to an agency.

We addressed whether an agency remand can result
in prevailing party status under EAJA in Former Employ-
ees, 336 F.3d at 1360. In that case, two employees who
had been dismissed from their jobs applied to the De-
partment of Labor (“DOL”) for benefits. Id. at 1362. The
WARD v. USPS 8

DOL denied these applications, and the employees subse-
quently appealed to the Court of International Trade. Id.
Finding error in the DOL’s determination, the Court of
International Trade remanded the case back to the DOL
for reconsideration. Id. Notably, the Court of Interna-
tional Trade retained jurisdiction over the matter during
remand. Id. The employees eventually obtained the
benefits they sought, after which they applied for attor-
ney’s fees under EAJA. Id. at 1363.

In analyzing whether the remand to the DOL consti-
tuted relief on the merits, we distinguished remands to
administrative agencies from remands contained entirely
within the federal court system. Id. at 1364-65. We
relied on two Supreme Court cases in doing so: Sullivan v.
Hudson, 490 U.S. 877 (1989), and Shalala v. Schaefer,
509 U.S. 292 (1993).

In summarizing Hudson, we explained that

a district court ordered a remand to the Secretary
of Health and Human Services for reconsideration
of a Social Security benefits claim, and retained
jurisdiction. On remand the claimant was suc-
cessful in obtaining benefits. The Supreme Court
held that that claimant was a prevailing party be-
cause it succeeded before the agency after the re-
mand. The Court explained that because there
would be no final judgment until the case was de-
cided on remand “for purposes of EAJA,” the
claimant’s status as “prevailing party” was “de-
pendent on the successful completion of the re-
mand proceedings before the Secretary.
Moreover, the remanding court continues to re-
tain jurisdiction over the action within the mean-
ing of EAJA and may exercise that jurisdiction to
9 WARD v. USPS

determine if its legal instructions on remand have
been followed by the Secretary.” The Court there-
fore held that “where administrative proceedings
are intimately tied to the resolution of judicial ac-
tion and necessary to the attainment of the re-
sults Congress sought to promote by providing for
fees, they should be considered part and parcel of
the action for which fees may be awarded.”

Former Employees, 336 F.3d at 1365-66 (quoting Hudson,
490 U.S. at 877-88 (internal citations omitted)).

In summarizing Schaefer, we explained that the case
involved the question of

when a “final judgment” had been entered for the
purposes of starting EAJA’s 30-day time period
for filing an attorneys’ fees application. The dis-
trict court had remanded the case for reconsidera-
tion by the Secretary of Health and Human
Services but had not retained jurisdiction. When
the district court retains jurisdiction, the Supreme
Court held, the time period begins after the dis-
trict court dismisses. When it does not retain ju-
risdiction, the time period begins to run with the
remand order itself. The Court emphasized that
when a district court “revers[es] the Secretary’s
denial of benefits” and remands without retaining
jurisdiction, the claimant is a “prevailing party”
for the purposes of EAJA because “the plaintiff
has succeeded on a[ ] significant issue in litigation
which achieved some of the benefit sought in
bringing suit.”
WARD v. USPS 10

Former Employees, 336 F.3d at 1366 (quoting Schaefer,
509 U.S. at 298-99, 302 (1993) (internal citations omit-
ted)).

Relying on Hudson and Schaefer, we formulated the
following rule in Former Employees:

where the plaintiff secures a remand requiring
further agency proceedings because of alleged er-
ror by the agency, the plaintiff qualifies as a pre-
vailing party (1) without regard to the outcome of
the agency proceedings where there has been no
retention of jurisdiction by the court, or (2) when
successful in the remand proceedings where there
has been a retention of jurisdiction.

Former Employees, 336 F.3d at 1366. As explained above,
the plaintiffs in Former Employees were successful on
remand in a case where the remanding court retained
jurisdiction. Id. at 1362-63. Therefore, they qualified as
“prevailing parties” under the second prong of the rule
stated above. Id. at 1367.

The first prong of the test articulated in Former Em-
ployees was not directly applicable to the facts of that
case. Thereafter, however, prong one was applied by our
court in Kelly v. Nicholson. 463 F.3d 1349 (Fed. Cir.
2006) (Rader, J., dissenting). Kelly involved a veteran
diagnosed with two conditions: olivopontocerebellar
atrophy (“OPCA”) and ataxia. The Regional Office and
the Board of Veterans’ Appeals both denied the veteran’s
claim for benefits, but failed to consider the ataxia evi-
dence before doing so. Id. at 1352. The veteran subse-
quently appealed to the Court of Appeals for Veterans
Claims (“Veterans Court”) and obtained a remand. Id. As
we later explained, the Board of Veterans’ Appeals erred
11 WARD v. USPS

because it violated a statutory obligation to consider the
ataxia evidence before rejecting the veteran’s service
connection claim. Id. at 1354-55.

After obtaining his remand, the veteran applied for
attorney’s fees. Id. at 1352. Prong one of the Former
Employees rule was at issue because the Veterans Court
did not retain jurisdiction over the remand. Id. at 1353.
Therefore, the ultimate outcome of the veteran’s case was
irrelevant in the attorney’s fees analysis; the focus was
solely on whether agency error caused the remand. We
concluded that the VA’s failure to consider the ataxia
evidence was a sufficient agency error to qualify the
veteran for prevailing party status under EAJA. Id. at
1355.

Notably, our precedent does not characterize every
agency remand as a grant of relief on the merits under
Former Employees. Indeed, we have held that remands
not rooted in agency error do not result in prevailing
party status. Such remands include: a remand to address
the impact of a newly-enacted statute on a case, Vaughn
v. Principi, 336 F.3d 1351, 1353 (Fed. Cir. 2003); a re-
mand to consider newly acquired evidence, Id. at 1354;
and a remand where the Board of Veterans’ Appeals
arguably misapplies a federal regulation but where the
Veterans Court does not “explicitly or implicitly predi-
cate[]” the remand order on this alleged misapplication.
Davis v. Nicholson, 475 F.3d 1360, 1364 (Fed. Cir. 2007).
Additionally, in Gurley v. Peake, 528 F.3d 1322, 1324
(Fed. Cir. 2008), a veteran obtained a remand because the
Board of Veterans’ Appeals failed to properly consider the
merits of three claims at once. Instead, the Board of
Veterans’ Appeals ruled on the merits of one claim while
declining to address the other two. Id. We found that the
“sole basis” for this remand was “judicial economy” rather
WARD v. USPS 12

than agency error and concluded that “[u]nder these
circumstances, [the veteran] cannot be considered a
‘prevailing party’ under EAJA.” Id. at 1328.

III

In the present matter, since we did not retain juris-
diction over our remand of Mr. Ward’s case to the Merit
Systems Protection Board, prong one of the Former Em-
ployees rule applies. See Former Employees, 336 F.3d at
1366. Thus, the outcome of the remand is inconsequen-
tial, and we focus our analysis solely on whether agency
error caused the remand.

Mr. Ward’s remand was clearly caused by administra-
tive error. As we explained in our previous opinion, the
Merit Systems Protection Board failed to analyze the
deciding official’s ex parte communications under the
Stone framework, an analysis intended to determine
whether Mr. Ward’s due process rights were violated.
Ward, 634 F.3d at 1279. Next, the Board failed to prop-
erly address a procedural error committed by the Agency.
Specifically, the Agency erred by considering instances of
misconduct not mentioned in the Notice of Proposed
Removal when determining Mr. Ward’s penalty. Id. at
1281. The Board then erred by concluding that it could
remedy the Agency’s error by performing an independent
analysis under the Douglas factors. Id. Instead, the
Board was required to perform a harmless error analysis
to determine whether the Agency’s procedural error
required reversal. Id. Because these administrative
errors resulted in Mr. Ward’s remand, we conclude that
Mr. Ward qualifies as a prevailing party under EAJA.
See Kelly, 463 F.3d at 1353; Former Employees, 336 F.3d
at 1366.
13 WARD v. USPS

IV

For the foregoing reasons, we hold that Mr. Ward is a
“prevailing party” under EAJA and is therefore entitled to
the attorney’s fees incurred during his Federal Circuit
appeal.

The court, PER CURIAM determines as follows:

IT IS ORDERED THAT:

Mr. Ward is a “prevailing party” under EAJA and is
therefore entitled to the attorney’s fees incurred during
his Federal Circuit appeal.

FOR THE COURT

March 12, 2012 /s/ Jan Horbaly
Date Jan Horbaly
Clerk
 United States Court of Appeals
for the Federal Circuit
__________________________

THOMAS O. WARD,
Petitioner,

v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________

2010-3021
__________________________

Petition for review of the Merit Systems Protection
Board in case no. PH0752090126-I-1.
__________________________

ON APPLICATION FOR ATTORNEY FEES
__________________________

PROST, Circuit Judge, with whom RADER, Chief Judge
joins, concurring.

I agree with the majority that Thomas O. Ward must
be awarded attorney’s fees pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412, because he
qualifies as a “prevailing party” under Former Employees
of Motorola Ceramic Products v. United States, 336 F.3d
1360 (Fed. Cir. 2003) (Rader, J., dissenting), and Kelly v.
Nicholson, 463 F.3d 1349 (Fed. Cir. 2006) (Rader, J.,
dissenting). Therefore, I concur in the order awarding
WARD v. USPS 2

fees. I write separately, however, because I believe that
prong one of the Former Employees rule, which is applica-
ble in this case, departs from Supreme Court precedent
and should be overruled.

Under the first prong, if a plaintiff secures a remand
because of an agency error, and the remanding court does
not retain jurisdiction over the case during remand, the
plaintiff automatically qualifies as a “prevailing party”
under EAJA regardless of the outcome of the remand
proceedings. Former Employees, 336 F.3d at 1366; see
also Kelly, 463 F.3d at 1353. As explained below, this
rule, in my view, conflicts with Supreme Court precedent
because it allows a plaintiff to qualify as a “prevailing
party” without having any success on the merits of his or
her claims.

I

The Supreme Court has consistently explained that
some level of success on the merits must be achieved
before a plaintiff can qualify as a “prevailing party” under
a fee-shifting statute. See, e.g., Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res. 532
U.S. 598, 603 (2001) (“Our ‘[r]espect for ordinary language
requires that a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail.’”);
Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (plain-
tiffs earning reversal of a directed verdict did not “pre-
vail[] on the merits of any of their claims” and, as a result,
were not prevailing parties). This is precisely why re-
mands within the federal court system ordinarily do not
result in prevailing party status—they are not grants of
“relief on the merits.” See Former Employees, 336 F.3d at
1364.
3 WARD v. USPS

As noted by the majority, however, our court has ap-
plied a special “prevailing party” rule for remands to
administrative entities. Specifically,

where the plaintiff secures a remand requiring
further agency proceedings because of alleged er-
ror by the agency, the plaintiff qualifies as a pre-
vailing party (1) without regard to the outcome of
the agency proceedings where there has been no
retention of jurisdiction by the court, or (2) when
successful in the remand proceedings where there
has been a retention of jurisdiction.

Id. at 1366; see also Kelly, 463 F.3d at 1353. Only the
first prong of this rule is at issue in the present case
because we did not retain jurisdiction over our remand to
the Merit Systems Protection Board (“Board”). I believe
prong one is flawed, however, because it does not require
an analysis of whether the plaintiff’s remand constituted
success on the merits. For example, under this prong, a
plaintiff obtaining a remand premised on a procedural
agency error would be entitled to attorney’s fees even if
after that remand, the plaintiff is no closer to winning his
case on the merits than he was when he first filed the
complaint.

According to Former Employees, support for its rule
comes from Sullivan v. Hudson, 490 U.S. 877 (1989), and
Shalala v. Schaefer, 509 U.S. 292 (1993), two Supreme
Court cases involving remands from a district court to the
Social Security Administration (“SSA”). In my view,
however, these two cases, consistent with the Supreme
Court cases cited above, require a plaintiff to achieve
some level of success on the merits in order to qualify as
“prevailing.”
WARD v. USPS 4

In the first of these cases, Hudson, the SSA denied
the plaintiff’s application for benefits. 490 U.S. at 879.
The plaintiff appealed and ultimately obtained a reversal
at the Eleventh Circuit whereby the court instructed the
district court to remand the case to the SSA for reconsid-
eration. Id. at 880-81. The purpose of the remand was
for the SSA to perform another analysis under its regula-
tions because it had erroneously applied them in the first
instance. Id. The plaintiff eventually won on remand,
obtaining the benefits he requested in his complaint. Id.
at 881-82. He then applied for attorney’s fees. Id. at 882.

The Supreme Court initially commented that “[a]s
provisions for judicial review of agency action go, [the
Social Security Act] is somewhat unusual.” Id. at 885.
Specifically, the Act can remove a federal court from its
normal role of overseeing the administrative process and
transform it into a virtual coparticipant in the process.
Id. Indeed, “[i]n many remand situations, the court will
retain jurisdiction over the action pending the [SSA’s]
decision . . . . to assure that its prior mandate is effectu-
ated.” Id. at 886. In Hudson, the district court retained
jurisdiction over the action after remand. Id. at 882.

Next, the Hudson Court explained how this unique
SSA procedural framework meshed with EAJA. In par-
ticular, the Court explained that “in a case such as this
one, where a court’s remand to the agency for further
administrative proceedings does not necessarily dictate
the receipt of benefits, the claimant will not normally
attain ‘prevailing party’ status . . . until after the result of
the administrative proceedings is known.” Id. at 886.
The Court stated that the procedural events in Hudson,
“for all intents and purposes,” were “identical” to that of
Hanrahan, 446 U.S. at 754, which found that “the rever-
sal of a directed verdict for defendants on appeal did not
5 WARD v. USPS

render the plaintiffs in that action ‘prevailing parties.’”
Hudson, 490 U.S. at 886. The Hanrahan Court explained
that such “procedural or evidentiary rulings” were not
themselves “matters on which a party could ‘prevail’ for
purposes of [a fee-shifting statute].” Hanrahan, 446 U.S.
at 759.

The Hudson Court thus concluded that “a Social Se-
curity claimant would not, as a general matter, be a
prevailing party within the meaning of the EAJA merely
because a court had remanded the action to the agency for
further proceedings.” Hudson, 490 U.S. at 887. Instead,
“for purposes of the EAJA, the Social Security claimant’s
status as a prevailing party [is] . . . often completely
dependent on the successful completion of the remand
proceedings before the [SSA].” Id. In this particular case,
“the administrative proceedings on remand . . . were
‘crucial to the vindication of [respondent’s] rights.’” Id. at
889. “No fee award at all would have been available to
respondent absent successful conclusion of the remand
proceedings.” Id. at 889.

The second Supreme Court case involving a remand to
the SSA is Schaefer. 509 U.S. at 292. Like the plaintiff in
Hudson, the Schaefer plaintiff was initially denied bene-
fits by the SSA before obtaining a remand from the dis-
trict court. Id. at 294. This remand appeared much like
an immediate victory, however, because the district court
reversed the SSA’s decision denying the plaintiff benefits.
Id. Unlike Hudson, the district court in Schaefer did not
retain jurisdiction over the remand. Id. at 294-95, 300.
After the Schaefer remand, the SSA awarded benefits to
the plaintiff in accordance with the district court’s ruling.
Id. at 294.
WARD v. USPS 6

In addressing whether the Schaefer plaintiff qualified
as a “prevailing party” under EAJA, the Court explained
that the case involved a “Sentence 4” remand under the
Social Security Act, “which terminates the litigation with
victory for the plaintiff.” Id. at 301. In obtaining this
result, the plaintiff “succeeded on [a] significant issue in
litigation which achieve[d] some of the benefit . . . sought
in bringing suit.” Id. at 302 (quoting Hudson, Tex. State
Teachers Assn. v. Garland Indep. Sch. Dist., 489 U.S. 782,
791-92 (1989)). The plaintiff therefore qualified as a
prevailing party. Schaefer, 509 U.S. at 302.

Notably, in Schaefer, the Court emphasized the dif-
ference between a Sentence 4 remand and another re-
mand procedure provided by the Social Security Act, a
Sentence 6 remand. Id. at 301-02. Unlike a Sentence 4
remand, the district court in a Sentence 6 remand retains
jurisdiction over the action. See 42 U.S.C. § 405(g).
Because the district court in Hudson retained jurisdiction
over its remand, this particular case can be characterized
as a “Sentence 6 remand” case. See Schaefer, 509 U.S. at
299-300. As evident in Hudson, an attorney’s fees appli-
cant in a Sentence 6 remand case does not prevail merely
by obtaining a remand—the remand must ultimately be
successful. See Hudson, 490 U.S. at 889. Prong two of
the Former Employees rule derives from the standard set
forth in Hudson. Indeed, prong two, just like the stan-
dard set forth in Hudson, only permits “prevailing party”
status in a situation where a court retains jurisdiction if
the plaintiff ultimately succeeds in the remand proceed-
ings. See Former Employees, 336 F.3d at 1366.

Schaefer, in contrast to Hudson, was a Sentence 4 re-
mand case where no jurisdiction was retained. See Schae-
fer, 509 U.S. at 299-300. Schaefer distinguished itself
from Hudson on these grounds. Id. In awarding “prevail-
7 WARD v. USPS

ing party” status, the Schaefer Court treated its Sentence
4 remand as a final victory for the plaintiff. Id. at 301.
Therefore, unlike Hudson, no victory at a later time was
required. Prong one of the Former Employees rule, which
addresses a situation were no jurisdiction is retained,
derives from Schaefer. Unlike Schaefer, however, prong
one does not require an analysis of whether the remand
constitutes a victory on the merits.

In sum, Hudson and Schaefer focused their analyses
on the extent to which the remands to the SSA consti-
tuted a victory on the merits. This approach squares with
the Supreme Court precedents mentioned above, which
require a “prevailing party” to succeed on the merits. See
Buckhannon, 532 U.S. at 603; Hanrahan, 446 U.S. at 758.
Prong one of the Former Employees rule contains no such
“success on the merits” requirement, however. Therefore,
I believe this rule conflicts with Supreme Court prece-
dent.

This conclusion is supported by Judge Rader’s dissent
in Former Employees. See Former Employees, 336 F.3d at
1368. As the Former Employees dissent explains, award-
ing attorney’s fees based on a procedural remand that
does not involve the merits of the case “defies the Su-
preme Court’s holdings in Buckhannon, Hudson, and
Schaefer.” Id. Indeed, the dissent viewed the remand at
issue in Former Employees, which was a remand for
reconsideration, as “far from a judgment on the merits or
consent decree and more akin to an interlocutory ruling
that reverses a dismissal for failure to state a claim.” Id.
at 1369. (Buckhannon explained that “an interlocutory
ruling that reverses a dismissal for failure to state a
claim” does not confer prevailing party status on a plain-
tiff. 532 U.S. at 605.) The dissent also disagreed with the
Former Employees court’s analysis of Hudson and Schae-
WARD v. USPS 8

fer, explaining that prevailing party status was awarded
in those cases because the Sentence 4 and Sentence 6
remands at issue were not merely remands—they were
unique types of remands tied to judgments under the
Social Security Act. Id. at 1369. Because of these judg-
ments, the dissent stated, Hudson and Schaefer are
consistent with Buckhannon. Id. Relying on the above
reasoning, the dissent concluded that the plaintiff in
Former Employees should not have qualified as a prevail-
ing party. Id. at 1370. I agree.

II

As the majority explains, Mr. Ward obtained his re-
mand because of agency error. Regarding the first error,
the Board failed to analyze the deciding official’s ex parte
communications under the Stone framework. See Ward v.
U.S. Postal Serv., 634 F.3d 1274, 1279 (Fed. Cir. 2011).
Second, the Board erroneously performed an independent
analysis under the Douglas factors in its effort to cure the
U.S. Postal Service’s error of improperly considering past
instances of misconduct during the penalty phase. Id. at
1281. On remand, we instructed the Board: (1) to apply
the Stone framework to determine whether the deciding
official’s reliance on ex parte communications caused a
due process violation; and (2) if so, to perform a harmless
error analysis regarding the U.S. Postal Service’s im-
proper consideration of past misconduct during the pen-
alty phase. Id. at 1282-83. We did not rule on the merits
of either of these two issues. We simply remanded so the
Board could consider them in the first instance. Thus, for
Mr. Ward to succeed on the merits of his claim after
remand, he had to first win under the Stone analysis and,
assuming he did, then obtain a favorable ruling on the
harmless error issue. Put differently, Mr. Ward was still
far from a victory on the merits after our remand. There-
9 WARD v. USPS

fore, the remand in this case is not analogous to the
Sentence 4 remand in Schaefer, which “terminate[d] the
litigation with victory for the plaintiff.” 509 U.S. at 301.
Mr. Ward merely obtained a ruling from this court ensur-
ing that the proper legal framework would be applied to
the facts of his case moving forward (i.e., a procedural
remand). For these reasons, I find it improper to declare
Mr. Ward a “prevailing party.” I join the majority, how-
ever, only because our precedent, which I am compelled to
follow, entitles Mr. Ward to prevailing party status.
 United States Court of Appeals
for the Federal Circuit
__________________________

THOMAS O. WARD,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________

2010-3021
__________________________

Petition for review of the Merit Systems Protection
Board in case no. PH0752090126-I-1.
__________________________

ON APPLICATION FOR ATTORNEY FEES
__________________________

DYK, Circuit Judge, concurring in the judgment.

While I agree with the result reached by the majority,
I write separately to respond to Judge Prost’s concur-
rence, which argues that Former Employees of Motorola
Ceramic Products v. United States, 336 F.3d 1360 (Fed.
Cir. 2003), should be overruled. Former Employees held
that an appellant who secures a judicial remand to correct
an agency error (without retention of jurisdiction) is a
prevailing party in that civil action under the Equal
Access to Justice Act (“EAJA”). 336 F.3d at 1366. Here
WARD v. USPS 2

Ward is a prevailing party because in a judicial review
action, this court vacated the Board’s affirmance of an
adverse action based on two agency errors—“serious due
process concerns and a violation of Agency procedure”—in
Ward’s removal action, and remanded for reconsideration.
Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed. Cir.
2011). 1
Judge Prost apparently thinks that a party to a judi-
cial review proceeding cannot be a prevailing party unless
the remand requires the agency to enter judgment in the
appellant’s favor. Former Employees has repeatedly been
applied in this circuit, is compelled by Supreme Court
precedent, and is consistent with decisions of the at least
six other circuits that have considered the question.
There is simply no basis for reconsidering it.
Moreover, denying prevailing-party status to appel-
lants and petitioners in veterans and government em-
ployment cases who secure a remand based on agency
error would make it more difficult for those individuals to

1 The first of the Board’s two errors was its holding
that improper ex parte communications in connection
with the penalty phase of the proceedings did not amount
to a denial of due process; we held that the same due
process standards applied in the context of the penalty
determination and the merits determination of the
charge. Id. at 1279-80. We required the Board on re-
mand to apply the proper standard, and to set aside the
penalty if the ex parte communications amounted to a
denial of due process. Id. at 1280. The Board’s second
error lay in applying an erroneous harmless error stan-
dard. Id. at 1281-82. We held that the agency could not
properly consider conduct not charged in the notice of
proposed removal in connection with the penalty, and that
the Board could not remedy the error simply by making
its own assessment of the reasonableness of the penalty.
Id. Again we remanded for action consistent with the
legal principle that we articulated. Id. at 1282.
3 WARD v. USPS

secure counsel. The prospect of EAJA fees is designed to
encourage counsel to undertake such representation.
Under Judge Prost’s view, EAJA fees would rarely be
available because our decisions in those cases, even when
favorable to the claimant, typically result in a remand
that does not mandate ultimate relief in his or her favor.
I
The reason that an appellant is a prevailing party
when he secures a remand (without retention of jurisdic-
tion) is that judicial review proceedings are considered to
be separate proceedings from the underlying agency
proceeding. EAJA’s statutory text recognizes this, stating
that a “prevailing party” shall receive fees “incurred by
that party in any civil action . . . including proceedings for
judicial review of agency action.” 28 U.S.C.
§ 2412(d)(1)(A) (emphasis added). This text in no way
suggests that prevailing party status depends upon a
direction from the reviewing court to enter judgment in
the appellant’s favor.
Since the Supreme Court’s decision in Shalala v.
Schaefer, 509 U.S. 292 (1993), our court has repeatedly
applied the Former Employees rule in EAJA cases. For
example, in Kelly v. Nicholson, 463 F.3d 1349, 1351-52
(Fed. Cir. 2006), a veteran who had been denied service
connection after exposure to Agent Orange won a remand
from the Court of Appeals for Veterans Claims (“Veterans
Court”), which found that the Department of Veterans
Affairs (“VA”) had erred by not considering the veteran’s
ataxia diagnosis and remanded for the agency to consider
this evidence. We held that the veteran was entitled to
EAJA fees under the Former Employees rule:
In awarding attorneys’ fees and expenses under
EAJA, the inquiry is whether [appellant] was a
prevailing party in his ‘civil action,’ not whether
WARD v. USPS 4

he ultimately prevails on his service connection
claim. [Appellant] prevailed in his civil action by
securing a remand requiring consideration of his
ataxia diagnosis.

Id. at 1354 (citations omitted) (citing Former Employees,
336 F.3d at 1366). See also Scarborough v. Principi, 319
F.3d 1346, 1348 (Fed. Cir. 2003) (noting that when the
Veterans Court remanded a decision to the VA because it
was not supported by an adequate statement of reasons,
the veteran “prevail[ed] in the underlying litigation” for
EAJA purposes), rev’d on other grounds, 541 U.S. 401
(2004). 2
The Former Employees rule is compelled by Supreme
Court precedent. The judicial remand to an agency ad-
dressed by the Supreme Court in Schaefer is virtually
identical to the remand at issue in this case, and Judge
Prost’s suggestion to the contrary rests on a misreading of
the Schaefer opinion. The plaintiff in Schaefer sought
judicial review under 42 U.S.C. § 405(g) of a denial of
disability benefits under the Social Security Act, and the

2 For other cases applying the Former Employees
rule, see Gurley v. Peake, 528 F.3d 1322, 1326 (Fed. Cir.
2008) (“[I]n [Former Employees], following Schaefer, we
held that ‘[w]hen there is a remand to the agency which
remand grants relief on the merits sought by the plaintiff,
and the trial court does not retain jurisdiction, the secur-
ing of the remand order is itself success on the merits.’”
(quoting Former Employees, 336 F.3d at 1366)); Davis v.
Nicholson, 475 F.3d 1360, 1364 (Fed. Cir. 2007) (“[U]nder
[Former Employees of] Motorola, we are not concerned
about the ultimate outcome of the agency proceedings on
the underlying merits case.”); Rice Services, Ltd. v. United
States, 405 F.3d 1017, 1025 (Fed. Cir. 2005) (quoting the
Former Employees rule); and Halpern v. Principi, 384
F.3d 1297, 1305 (Fed. Cir. 2004) (same).
5 WARD v. USPS

district court found that the agency “had committed three
errors in ruling on Schaefer’s case.” 509 U.S. at 294. In
particular, the magistrate judge found that the agency
erred in (1) improperly evaluating Schaefer’s subjective
complaints of back pain (noting that “on remand the
[agency] should consider more closely plaintiff’s chiroprac-
tic treatment immediately after his accident”); (2) not
giving Schaefer’s back pain “an individualized evalua-
tion”; and (3) not using a vocational expert or considering
Schaefer’s age and education when making its assessment
of residual functioning capacity. Schaefer v. Bowen, No.
3-88-71, slip op. at 10-13 (D. Minn. Oct. 19, 1988), re-
printed in Petition for Writ of Certiorari at 28a, 37a-40a,
Schaefer, 509 U.S. 292 (No. 92-311). None of these errors
required the award of benefits, 3 and in adopting this
recommendation, the district judge did not order the
agency to provide Schaefer with benefits; rather, it denied
cross-motions for summary judgment and ordered, under
sentence four of § 405(g), that “the case is remanded to
the Secretary [of Health and Human Services] for further
consideration.” Schaefer v. Bowen, No. 3-88-71, slip op. at
2 (D. Minn. Apr. 4, 1989), reprinted in Petition for Writ of
Certiorari at 26a, 27a, Schaefer, 509 U.S. 292 (No. 92-
311). The Supreme Court held that because the district
court had entered a final judgment and released jurisdic-
tion, this remand order terminated the civil action with
success on the merits for the plaintiff, making Schaefer a
prevailing party under EAJA. 509 U.S. at 300-02. The

3 The definition of “disability” for Social Security
benefits purposes has not changed since Schaefer: “the
term ‘disability’ means (A) inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can
be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12
months, or (B) blindness . . . .” 42 U.S.C. § 416(i)(1).
WARD v. USPS 6

Court specifically drew a distinction between the agency
proceeding and the judicial review action, noting that
“[u]nder § 405(g), ‘each final decision of the Secretary [is]
reviewable by a separate piece of litigation,’ and a sen-
tence-four remand order [a remand without retention of
jurisdiction] ‘terminate[s] the civil action’ seeking judicial
review of the Secretary’s final decision.” Id. at 299 (sec-
ond and fourth alterations in original) (quoting Sullivan
v. Finkelstein, 496 U.S. 617, 624-25 (1990)). 4
Judge Prost states that the Schaefer Court treated the
remand “as a final victory for the plaintiff.” Prost Con-
curring Op. at 6 (citing Schaefer, 509 U.S. at 301). What
Schaefer actually said was that “a sentence-four remand
. . . terminates the litigation with victory for the plaintiff.”
509 U.S. at 301. What the Court was saying was not that
the remand was a final victory for the plaintiff in award-
ing Social Security benefits, but that it terminated the
litigation (i.e., Schaefer’s separate civil action for judicial
review) with victory for the plaintiff in requiring the
agency to reconsider his case (i.e., success on the merits
sought on the judicial review action). It was not a final
victory for Schaefer in his underlying agency action any
more than our decision in Ward was a final victory for
Ward. Schaefer specifically distinguished Sullivan v.
Hudson, 490 U.S. 877 (1989), as involving a case in which
the district court “had retained jurisdiction during the
remand,” a circumstance in which a remand alone is

4 Sentence four of 42 U.S.C. § 405(g) states: “The
[district] court shall have power to enter, upon the plead-
ings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause
for a rehearing.” In contrast, where the remanding court
retains jurisdiction (known as a “sentence six” remand in
the Social Security context), the entitlement to fees does
depend on the ultimate outcome of the agency proceeding.
7 WARD v. USPS

insufficient to convey prevailing-party status, and an
ultimately favorable decision on the remand is required.
509 U.S. at 299-300.
Contrary to Judge Prost’s suggestion, see Prost Con-
curring Op. at 7, nothing in Buckhannon Board & Home
Care, Inc. v. West Virginia Department of Health & Hu-
man Resources, 532 U.S. 598 (2001), suggests a result
contrary to either Former Employees or Schaefer. Buck-
hannon did not involve a remand in an agency review
proceeding; rather, the plaintiffs sued for declaratory
relief that a state housing law violated federal laws, and
the case was dismissed as moot after the state housing
law was amended. 532 U.S. at 600-01. The Buckhannon
Court rejected the “catalyst theory,” demanding that
success be reflected in a judicial decree resulting from a
merits determination or a court-ordered consent decree.
See id. at 603-10. Former Employees demands the same
result: success requires a judicial decree of agency error,
and not merely an extraneous event such as a statutory
amendment that causes the agency to change its views.
See, e.g., Vaughn v. Principi, 336 F.3d 1351, 1360 (Fed.
Cir. 2003) (holding that an appellant is not a “prevailing
party” where a remand is caused by a change in law). In
judicial review proceedings of agency action, the requisite
“success” is measured by success in the judicial forum, not
by success on the underlying claim (unless there has been
a retention of jurisdiction). Securing a remand to the
agency is not an interlocutory ruling; rather, it is akin to
winning an injunction against the agency, requiring it to
proceed differently.
Significantly, shortly after Buckhannon, the Supreme
Court in Scarborough v. Principi, 541 U.S. 401 (2004), an
agency review proceeding, assumed that a remand was
sufficient for prevailing-party status. The case came from
this court, and involved whether a veteran could amend
WARD v. USPS 8

his EAJA application. On July 9, 1999, the Veterans
Court had vacated the VA’s decision that there was no
clear and unmistakable error in an earlier VA decision
because it was not supported by an adequate statement of
reasons, and remanded the case for further proceedings.
See Scarborough v. West, No. 98-1590, slip op. at 3 (Vet.
App. July 9, 1999), reprinted in Petition for Writ of Cer-
tiorari at 41a, 43a, Scarborough, 541 U.S. 401 (No. 02-
1657); Scarborough v. West, 13 Vet. App. 530, 531 (2000).
As in Schaefer, the court did not order that the appellant
must prevail on remand. It merely found that the agency
had made an error that required further consideration.
The Supreme Court explicitly stated that “[o]n July 9,
1999, petitioner Scarborough . . . prevailed before the
[Veterans] Court,” and that he was the “prevailing party”
under EAJA. 541 U.S. at 405, 408. If Scarborough was a
prevailing party, then so necessarily was Ward in this
case, and so is every successful appellant who secures a
remand due to agency error.
The Court once again made it clear that a remand is
sufficient for prevailing-party status in Astrue v. Ratliff,
130 S. Ct. 2521 (2010), a case involving a request for
EAJA fees in an action for Social Security benefits. Citing
Schaefer, the Supreme Court recognized “courts’ common
practice of awarding EAJA fees at the time a court re-
mands a case to the Social Security Administration (Ad-
ministration) for benefits proceedings,” and noted that
“[s]uch awards often allow attorneys to collect EAJA fees
months before any fees are awarded under 42 U.S.C §
406(b) [which allows fees for proceedings before the Ad-
ministration], because § 406(b) fees cannot be determined
until the Administration enters a final benefits ruling.”
Id. at 2528 n.4 (citing Schaefer, 509 U.S. at 295-302). In
other words, prevailing party status on appeal is deter-
mined well in advance of a final decision on the merits,
9 WARD v. USPS

and is not dependent on such a determination. It is thus
clear that success in the benefits proceedings before the
agency is not a prerequisite for an award of EAJA fees in
the judicial review action.
II
Other circuits have also concluded that a remand re-
sulting from agency error (without retention of jurisdic-
tion) is sufficient for prevailing-party status in Social
Security cases even if the remand does not direct an
award of relief. See, e.g., Hackett v. Barnhart, 475 F.3d
1166, 1168-69 (10th Cir. 2007) (stating that a remand
requiring the agency to address a conflict in testimony
was sufficient for prevailing party status); Perlman v.
Swiss Bank Corp. Comprehensive Disability Prot. Plan,
195 F.3d 975, 980 (7th Cir. 1999) (“[O]btaining a sen-
tence-four remand makes the claimant a ‘prevailing party’
without regard to what happens on the remand.”); Corbin
v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998) (“[A] party is
eligible for fees under EAJA if he wins at any intermedi-
ate stage in the proceedings—for instance, by obtaining a
remand from the appeals court . . . .”); Jackson v. Chater,
99 F.3d 1086, 1097 (11th Cir. 1996) (stating that in a case
where the district court remands under both sentence
four and sentence six of 42 U.S.C. § 405(g), “the claimant
prevails by obtaining a remand for reconsideration of his
case”); Breaux v. U.S. Dep’t of Health & Human Servs., 20
F.3d 1324, 1325 (5th Cir. 1994) (per curium) (“Schaefer
overruled [a prior Fifth Circuit case], which stated that
a[n] [EAJA] fee application by a plaintiff who has ob-
tained a remand order should be denied as ‘premature
without prejudice.’”).
Circuits that have considered remands outside the So-
cial Security context have recognized that the Schaefer
rule applies to all agency review proceedings where the
WARD v. USPS 10

court does not retain jurisdiction. In Rueda-Menicucci v.
INS, 132 F.3d 493, 494 (9th Cir. 1997), the court set aside
an INS decision and remanded to the Board of Immigra-
tion Appeals (“BIA”) to determine if the petitioner’s
allegations of past persecution were true. The petitioner
then filed an application for EAJA fees. The Ninth Cir-
cuit held that the petitioner was a prevailing party:
Although Schaefer was a Social Security case, we
can perceive no difference between a “sentence
four” remand under § 405(g) and a remand to the
BIA for further proceedings. In both cases, the
remand terminates judicial proceedings and re-
sults in the entry of a final judgment. We conclude
that Schaefer effectively overrules [prior Ninth
Circuit cases that had held] that the entry of
judgment remanding a case to the BIA for further
consideration does not constitute a final judgment
in favor of the petitioner.

132 F.3d at 495 (footnote omitted). The Ninth Circuit has
continued to rely on this rule. See, e.g., Carbonell v. INS,
429 F.3d 894, 900 (9th Cir. 2005) (“[A] litigant can be a
prevailing party even if he has not obtained affirmative
relief in his underlying action.”).
The Seventh Circuit reached the same conclusion in
Muhur v. Ashcroft, 382 F.3d 653, 655 (7th Cir. 2004),
another asylum case in which the petitioner won a re-
mand to the BIA based on an agency error. On peti-
tioner’s EAJA application, the Seventh Circuit noted that
“all she got from us was a remand for reconsideration of
her asylum application; we did not order that she be
granted asylum.” Id. at 654. Nevertheless, citing Schae-
fer and Former Employees, the Seventh Circuit held:
“[W]hen a court of appeals, as in this case, reverses a
11 WARD v. USPS

denial of asylum because the denial was erroneous, and
sends the case back to the immigration service for further
proceedings, the applicant is a prevailing party . . . .” Id.
at 655. The Seventh Circuit has consistently applied this
rule in cases considering EAJA applications after judicial
remands to agencies. See, e.g., Kholyavskiy v. Holder, 561
F.3d 689, 690 & n.2 (7th Cir. 2009).
The Third Circuit also followed the same approach in
another asylum case, Johnson v. Gonzales, 416 F.3d 205,
209-10 (3d Cir. 2005). The court held that under Schae-
fer, because the Third Circuit had set aside an erroneous
agency action and relinquished jurisdiction, petitioner “is
the prevailing party in this proceeding for EAJA purposes
regardless whether he ultimately prevails in his underly-
ing immigration proceeding.” Id. at 210. And in a similar
recent case before the Second Circuit, the court noted that
the government agreed that the petitioners were prevail-
ing parties. Gomez-Beleno v. Holder, 644 F.3d 139, 144
(2d Cir. 2011).
As these other circuits have recognized, the rule we
reached in Former Employees is clearly supported by the
statutory text and is mandated by Supreme Court prece-
dent.