United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 1, 2015 Decided July 17, 2015

No. 14-5089

INITIATIVE AND REFERENDUM INSTITUTE, ET AL.,

APPELLANTS

v.

UNITED STATES POSTAL SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cv-01246)

Arthur B. Spitzer argued the cause for appellants. With 

him on the briefs was David F. Klein.

Marina Utgoff Braswell, Assistant U.S. Attorney, argued 

the cause for appellee. With her on the brief were Ronald C. 

Machen Jr., U.S. Attorney at the time the brief was filed, and 

R. Craig Lawrence, Assistant U.S. Attorney.

Before: BROWN, KAVANAUGH, and PILLARD, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH.
2

KAVANAUGH, Circuit Judge: In 1998, the U.S. Postal 

Service promulgated a regulation that, among other things, 

barred the collection of signatures on petitions at post office 

sidewalks that run alongside public streets. Those post office 

sidewalks are known as perimeter sidewalks, and are

indistinguishable from adjacent public sidewalks. Several 

nonprofit organizations that collect signatures in order to 

place initiatives or referenda on state ballots challenged the 

regulation on First Amendment grounds. In 2005, this Court 

held unconstitutional the regulation’s ban on signature 

collection on perimeter sidewalks. Shortly thereafter, the 

Postal Service amended its regulation to correct the 

constitutional defect identified in this Court’s decision. 

The plaintiff nonprofit organizations subsequently 

applied for attorney’s fees under the Equal Access to Justice 

Act. That Act authorizes fees for parties that prevail in 

litigation against the United States, unless the Government’s 

position was substantially justified. The District Court denied 

the fee application on the ground that the plaintiffs were not 

prevailing parties under the Act. This appeal followed. 

Although the question is close, we conclude that plaintiffs 

were prevailing parties. Therefore, we reverse the judgment 

of the District Court and remand the case for further 

proceedings. 

I

A 1998 U.S. Postal Service regulation barred, among 

other things, the collection of signatures on petitions at post 

office perimeter sidewalks. See 39 C.F.R. § 232.1(a), (h)(1) 

(1998). The regulation was “posted at a conspicuous place”

on all Postal Service property. Id. § 232.1(a). Violations

were punishable by fine, imprisonment, or both. Id. 

§ 232.1(p).
3

The plaintiffs here are several nonprofit organizations. 

They draft petitions to place initiatives and referenda on state 

election ballots. To get an initiative or referendum on the 

ballot, it is generally necessary to obtain a certain number of 

signatures. To help collect the necessary signatures, members 

of the nonprofit organizations stand on the perimeter 

sidewalks of post offices.

In 2000, plaintiffs sued to challenge the Postal Service’s 

ban on collecting signatures on perimeter sidewalks. Both

sides eventually moved for summary judgment. At a hearing 

on those motions in 2002, the Postal Service announced a 

change in policy. The Postal Service stated that it would not 

enforce the prohibition against collecting signatures on

petitions at post office perimeter sidewalks. 

In deciding the summary judgment motions, the District 

Court “relied on defendant’s changed position” and granted 

summary judgment to the Postal Service. Initiative &

Referendum Institute v. U.S. Postal Service, No. 00-1246, at 1 

(D.D.C. Dec. 31, 2003). In addition, the court ordered the 

Postal Service to issue a bulletin notifying postmasters of its 

new policy permitting the collection of signatures on petitions 

at perimeter sidewalks. The Postal Service complied with that 

order.

Plaintiffs appealed, and in 2005 we reversed the District 

Court’s judgment. See Initiative & Referendum Institute v. 

U.S. Postal Service, 417 F.3d 1299, 1318 (D.C. Cir. 2005). 

We stated that Section 232.1(h)(1)’s ban on signature

collection on those sidewalks was unconstitutional. Although 

the Postal Service had directed postmasters not to enforce the 

regulation on perimeter sidewalks, we concluded that the 

regulation was not reasonably susceptible to an interpretation 
4

that excluded perimeter sidewalks from its scope. By its own 

terms, the regulation applied to “all real property under the 

charge and control of the Postal Service.” 39 C.F.R. 

§ 232.1(a). Moreover, the regulation as written – not the 

Postal Service’s non-enforcement policy – was posted in post 

offices. We reasoned that the Postal Service’s policy of not

enforcing the regulation on perimeter sidewalks could not 

“alone temper the regulation’s chill of First Amendment 

rights.” Initiative & Referendum Institute, 417 F.3d at 1318. 

We recognized, however, that the Postal Service could cure 

the constitutional defect by amending the regulation to permit 

the collection of signatures on petitions at perimeter 

sidewalks. We remanded for further proceedings consistent 

with our opinion.

After this Court issued its 2005 decision, the Postal 

Service amended its regulation to allow the collection of

signatures on petitions at perimeter sidewalks. See 39 C.F.R. 

§ 232.1(a)(ii) (2006). In a later challenge, the District Court 

and this Court upheld the amended regulation. See Initiative 

& Referendum Institute v. U.S. Postal Service, 685 F.3d 1066, 

1074 (D.C. Cir. 2012).

Plaintiffs then applied for attorney’s fees under the Equal 

Access to Justice Act. They sought fees incurred before this 

Court’s 2005 decision. The Act authorizes fee awards to 

parties that prevail in litigation against the United States, 

unless the Government’s position was substantially justified. 

See 28 U.S.C. § 2412(d)(1)(A). The magistrate judge 

recommended denying the fee application on the ground that 

plaintiffs were not prevailing parties under the Act. The 

District Court agreed. The District Court concluded that 

plaintiffs “did not gain any court-ordered relief from the D.C. 

Circuit’s 2005 decision” because that decision “did not 

compel the Postal Service to amend the 1998 Regulation.” 
5

Initiative & Referendum Institute v. U.S. Postal Service, No. 

00-CV-1246, at 14 (D.D.C. Feb. 24, 2014). Rather, the Postal 

Service’s subsequent amendment to the regulation constituted 

“a voluntary change.” Id. at 15. Plaintiffs have appealed that 

ruling. We review the District Court’s decision de novo. 

Thomas v. National Science Foundation, 330 F.3d 486, 491 

(D.C. Cir. 2003).

II

The Equal Access to Justice Act provides that “a court 

shall award to a prevailing party other than the United States 

fees and other expenses” incurred in a civil action brought by 

or against the United States, “unless the court finds that the 

position of the United States was substantially justified or that 

special circumstances make an award unjust.” 28 U.S.C. 

§ 2412(d)(1)(A). 

In determining whether a fee applicant is a “prevailing 

party,” this Court applies the following three-part test: “(1) 

there must be a court-ordered change in the legal relationship 

of the parties; (2) the judgment must be in favor of the party 

seeking the fees; and (3) the judicial pronouncement must be 

accompanied by judicial relief.” Turner v. National 

Transportation Safety Board, 608 F.3d 12, 15 (D.C. Cir. 

2010) (internal quotation marks omitted); see also Thomas v. 

National Science Foundation, 330 F.3d 486, 492-93 (D.C. 

Cir. 2003) (applying three-part test to analysis of “prevailing 

party” under 28 U.S.C. § 2412(d)(1)(A)).

The primary question here is whether our 2005 decision 

effectuated a court-ordered change in the legal relationship of 

the parties. The answer is yes.
6

The Supreme Court has explained that “prevailing party” 

status requires a “court-ordered change in the legal 

relationship” between the parties. Buckhannon Board & Care 

Home, Inc. v. West Virginia Department of Health & Human 

Resources, 532 U.S. 598, 603-04 (2001) (internal quotation 

marks omitted); cf. also Thomas, 330 F.3d at 492 n.1 

(“Buckhannon applies to the definition of ‘prevailing party’” 

under the Equal Access to Justice Act.). That court-ordered 

change may be brought about by, for example, an enforceable 

judgment on the merits. Buckhannon, 532 U.S. at 604. A 

“defendant’s voluntary change in conduct, although perhaps 

accomplishing what the plaintiff sought to achieve by the 

lawsuit, lacks the necessary judicial imprimatur on the 

change.” Id. at 605. Importantly, a party may achieve 

“prevailing party” status when the “terms of a remand [are] 

such that a substantive victory will obviously follow.” 

Waterman Steamship Corp. v. Maritime Subsidy Board, 901 

F.2d 1119, 1123 (D.C. Cir. 1990); see also National Rifle 

Association of America, Inc. v. City of Chicago, 646 F.3d 992, 

994 (7th Cir. 2011) (awarding fees where, after appellate 

decision, “litigation was over except for the entry of an 

injunction by the district court”).

Plaintiffs here argue that they obtained a favorable, courtordered change – namely, this Court’s 2005 decision holding 

the Postal Service’s regulation unconstitutional with respect

to collecting signatures on petitions at perimeter sidewalks. 

We agree.

To be sure, by the time of our 2005 decision, the Postal 

Service had already directed postmasters not to enforce the 

regulation’s prohibition against collecting signatures on

petitions at perimeter sidewalks. But the Postal Service’s 

non-enforcement policy alone was not good enough, we said
7

in that decision. We held that the challenged regulation still 

caused an impermissible “chill” on plaintiffs’ First 

Amendment rights, notwithstanding the Postal Service’s nonenforcement policy. Initiative & Referendum Institute v. U.S. 

Postal Service, 417 F.3d 1299, 1318 (D.C. Cir. 2005). The

non-enforcement policy, we explained, “is not published in 

the Federal Register, is not contained in the Code of Federal 

Regulations, and is not posted for public examination in post 

offices.” Id. at 1317-18. And even if the non-enforcement

policy were posted for public examination, citizens “could not 

confidently rely on it,” especially given its “facial 

inconsistency” with the regulation’s text. Id. at 1318. In 

short, we ruled that plaintiffs were entitled to relief from the 

regulation regardless of how the Postal Service enforced (or 

did not enforce) its regulation in practice.

The Postal Service argues that our 2005 decision 

nonetheless resulted in no court-ordered change in the legal 

relationship of the parties because this Court did not expressly 

require the Postal Service to amend its regulation. That 

argument ignores the reality of what we did.

One of two outcomes was necessary and inevitable as a 

result of our 2005 decision: Either the Postal Service would 

amend its regulation, or the District Court would order it to do 

so. Either outcome would exclude perimeter sidewalks from 

the regulation’s ban on collecting signatures on petitions. As 

we have said before, a party may achieve “prevailing party” 

status when the “terms of a remand [are] such that a 

substantive victory will obviously follow.” Waterman, 901 

F.2d at 1123. That describes this case. 

In short, as a result of our 2005 decision, plaintiffs 

obtained a favorable, court-ordered change in their legal 

relationship with the Postal Service.
8

Plaintiffs easily satisfy the remaining two prongs of the 

“prevailing party” test: They achieved a judgment “in favor 

of the party seeking the fees” and a judicial pronouncement 

“accompanied by judicial relief.” Turner, 608 F.3d at 15

(internal quotation marks omitted). Our 2005 decision was 

“in favor” of plaintiffs – “the party seeking the fees.” Id. 

And because we remanded for further proceedings consistent

with our opinion, our “judicial pronouncement” was 

“accompanied by judicial relief.” Id.

* * *

The plaintiff nonprofit organizations are prevailing 

parties under 28 U.S.C. § 2412(d)(1)(A). That said, plaintiffs 

are not entitled to attorney’s fees if the Postal Service’s 

position was substantially justified. We leave it to the District 

Court to determine in the first instance whether the Postal 

Service’s position was substantially justified. We reverse the 

judgment of the District Court and remand for further 

proceedings consistent with this opinion. 

So ordered.