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 application 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 concurring in the judgment filed by Circuit Judge DYK. 

O R D E R 

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 “prevailing party,” we grant his request. 

I 

On August 19, 2008, Mr. Ward, a maintenance mechanic for the U.S. Postal Service (“Agency”), was involved 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 maintenance 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 communications that Mr. Ward had previously exhibited 

“loud, belligerent, [and] intimidating behavior.” Moreover, the deciding official represented that he considered 

these past instances of misconduct in his Douglas factor 

analysis and that these past actions influenced his decision 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 incident, 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 action 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 process rights were violated” but failed to do so. Id. Therefore, we remanded the case to the Board for that purpose, 

stating that “[i]f the Board finds that the [ex parte] communications 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 attempted 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 Proposed 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 automatically 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 authorized 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 expenses, in addition to any costs awarded pursuant 

to subsection (a), incurred by that party in any 

civil action (other than cases sounding in tort), including 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 meaning 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 “catalyst 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 judgment or consent decree” in their favor. Id. at 625-26 

(Ginsburg, J., dissenting). Federal courts had been applying 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 requiring enforceable judgments on the merits or court-ordered 

consent decrees. 

Notably, EAJA was not specifically at issue in Buckhannon, 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 ‘prevailing party’ consistently in all federal fee-shifting statutes.”). 

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 Employees, 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 Employees, 336 F.3d at 1360. In that case, two employees who 

had been dismissed from their jobs applied to the Department of Labor (“DOL”) for benefits. Id. at 1362. The 
WARD v. USPS 8

DOL denied these applications, and the employees subsequently 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 International Trade retained jurisdiction over the matter during 

remand. Id. The employees eventually obtained the 

benefits they sought, after which they applied for attorney’s fees under EAJA. Id. at 1363. 

In analyzing whether the remand to the DOL constituted 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 successful in obtaining benefits. The Supreme Court 

held that that claimant was a prevailing party because it succeeded before the agency after the remand. The Court explained that because there 

would be no final judgment until the case was decided on remand “for purposes of EAJA,” the 

claimant’s status as “prevailing party” was “dependent on the successful completion of the remand proceedings before the Secretary. 

Moreover, the remanding court continues to retain jurisdiction over the action within the meaning 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 therefore held that “where administrative proceedings 

are intimately tied to the resolution of judicial action and necessary to the attainment of the results 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 district court had remanded the case for reconsideration 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 district court dismisses. When it does not retain jurisdiction, 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 omitted)). 

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 error by the agency, the plaintiff qualifies as a prevailing 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 Employees 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 evidence before doing so. Id. at 1352. The veteran subsequently 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 remand 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 predicate[]” 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 jurisdiction over our remand of Mr. Ward’s case to the Merit 

Systems Protection Board, prong one of the Former Employees rule applies. See Former Employees, 336 F.3d at 

1366. Thus, the outcome of the remand is inconsequential, and we focus our analysis solely on whether agency 

error caused the remand. 

Mr. Ward’s remand was clearly caused by administrative 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 properly 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

Date 

/s/ Jan Horbaly

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 applicable 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) (plaintiffs earning reversal of a directed verdict did not “prevail[] on the merits of any of their claims” and, as a result, 

were not prevailing parties). This is precisely why remands 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 applied a special “prevailing party” rule for remands to 

administrative entities. Specifically, 

where the plaintiff secures a remand requiring 

further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing 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 reconsideration. Id. at 880-81. The purpose of the remand was 

for the SSA to perform another analysis under its regulations 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 effectuated.” 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 particular, 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 reversal 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 Security 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 benefits by the SSA before obtaining a remand from the district 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 difference between a Sentence 4 remand and another remand 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 applicant 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 standard 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 proceedings. See Former Employees, 336 F.3d at 1366. 

Schaefer, in contrast to Hudson, was a Sentence 4 remand case where no jurisdiction was retained. See Schaefer, 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 constituted 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 precedent. 

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, awarding attorney’s fees based on a procedural remand that 

does not involve the merits of the case “defies the Supreme 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 plaintiff. 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 judgments, 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 prevailing party. Id. at 1370. I agree. 

II 

As the majority explains, Mr. Ward obtained his remand 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 improper consideration of past misconduct during the penalty 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 ensuring 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, however, 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 concurrence, 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 judicial 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 appellants and petitioners in veterans and government employment 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 remand 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 standard. 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 jurisdiction) 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 addressed 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 securing 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 chiropractic treatment immediately after his accident”); (2) not 

giving Schaefer’s back pain “an individualized evaluation”; 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), reprinted 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 jurisdiction, 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 sentence-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 (second 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 Concurring 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 awarding 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 pleadings 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 Concurring Op. at 7, nothing in Buckhannon Board & Home 

Care, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), suggests a result 

contrary to either Former Employees or Schaefer. Buckhannon 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 Certiorari 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 remands a case to the Social Security Administration (Administration) 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 Administration], 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 determined 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 resulting from agency error (without retention of jurisdiction) 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 sentence-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 intermediate 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 obtained a remand order should be denied as ‘premature 

without prejudice.’”). 

Circuits that have considered remands outside the Social 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 Immigration 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 Circuit 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 results 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 remand to the BIA based on an agency error. On petitioner’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 Schaefer 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 Schaefer, 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 underlying 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 prevailing 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 precedent.