United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2016 Decided December 16, 2016

No. 16-5037

ERIK O. AUTOR, ET AL.,

APPELLANTS

v.

PENNY SUE PRITZKER, IN HER OFFICIAL CAPACITY AS

SECRETARY OF COMMERCE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01593)

E. Brantley Webb argued the cause for appellants. With her

on the brief was Charles A. Rothfeld.

Sydney A. Foster, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Michael S. Raab and Charles W. Scarborough,

Attorneys.

Before: HENDERSON and ROGERS, Circuit Judges, and

GINSBURG, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge ROGERS. 

ROGERS, Circuit Judge: This appeal from the denial of

attorneys’ fees under the Equal Access to Justice Act (“EAJA”),

28 U.S.C. § 2412, presents the question whether appellants’

prior appeal effectively secured them prevailing party status. 

Appellants filed suit challenging the federal policy barring

federally registered lobbyists from serving on the Industry Trade

Advisory Committees. See Request for Nominations for the

Industry Trade Advisory Comms., 75 Fed. Reg. 24,584, 24,585

(May 5, 2010); Pres. Mem. on Lobbyists on Agency Bds. &

Comm’ns, 75 Fed. Reg. 35,955, 35,955 (June 23, 2010)

(hereinafter “the lobbyist ban”). The district court dismissed the

complaint for failure to state a claim. This court reversed,

rejecting two of the government’s defenses, and remanded the

case for the district court to determine whether the government’s

interest in imposing the lobbyist ban “outweighs any

impingement on Appellants’ constitutional rights.” Autor v.

Pritzker, 740 F.3d 176, 178 (D.C. Cir. 2014) (“Autor I”). In so

doing, the court noted two considerations for the district court to

address on remand. Id. at 184. Appellants contend the court

thereby made clear that they would necessarily prevail on

remand and therefore they were entitled to attorneys’ fees. 

Appellants have overread Autor I, because the court

acknowledged that on remand dismissal might still be

appropriate depending on the district court’s disposition of the

government’s remaining defense. See id. Accordingly, we

affirm.

I.

Appellants are federally registered lobbyists who sued the

Secretary of Commerce and United States Trade Representative

on the grounds that the lobbyist ban violated their rights under
3

the First and Fifth Amendments to the Constitution. Their

complaint alleged that the lobbyist ban “attaches an

unconstitutional condition on the exercise of the First

Amendment right to petition [the government],” Compl. ¶ 49,

and “draws an unconstitutional distinction between those who

exercise their right to petition the government and those who do

not,” id. at ¶ 53. The district court granted the government’s

motion to dismiss for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6), and appellants appealed. 

This court held that the complaint stated “a viable First

Amendment unconstitutional conditions claim,” Autor I, 740

F.3d at 183, and a plausible Fifth Amendment equal protection

claim, id. at 184. The court was unpersuaded by the

government’s defenses that its freedom to choose its advisors

under Minnesota State Board for Community Colleges v.

Knight, 465 U.S. 271 (1984), foreclosed appellants’

unconstitutional conditions claim or that the lobbyist ban did

not impose an unconstitutional burden on appellants’ First

Amendment right to petition under Lyng v. International Union,

485 U.S. 360 (1988). Id. at 181, 183. The court recognized,

however, that “[t]he Supreme Court has long sanctioned

government burdens on public employees’ exercise of

constitutional rights,” id. at 183, and that “the government’s

interest in selecting its advisors . . . may justify similar

restrictions on individual rights,” id. at 183-84. The court

remanded the case to the district court to develop a factual

record and undertake the balancing of interests analysis set forth

in Pickering v. Board of Education, 391 U.S. 563 (1968). Id. at

184. In other words, inasmuch as the court was required at that

stage of the proceedings to treat the allegations of the complaint

as true, see id. at 179, 183; Atherton v. D.C. Office of the

Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), dismissal might

still prove appropriate on remand. The court stated that on

remand the district court should inquire into the government’s
4

justification for banning federally registered lobbyists, such as

appellants, while allowing other corporate employees

representing the same companies to serve on the Industry Trade

Advisory Committees, and how banning lobbyists from

committees otherwise featuring corporate representatives

“protects the ‘voices of ordinary Americans.’” Autor I, 740

F.3d at 184 (quoting Pres. Mem., 75 Fed. Reg. at 35,955). 

In the district court, the parties filed a joint motion for an

extension of time and two months later informed the district

court of their intention to settle the case or file a schedule for

further proceedings. In August 2014, the Office of

Management and Budget revised the lobbyist ban to apply only

to lobbyists who serve on advisory committees in an individual

capacity. See Rev. Guidance on Appointment of Lobbyists to

Fed. Advisory Comms., Bds., & Comm’ns, 79 Fed. Reg.

47,482, 47,482 (Aug. 13, 2014). In light of this “policy

clarification,” the Department of Commerce issued an amended

“Request for Nominations for the Industry Trade Advisory

Committees.” 79 Fed. Reg. 51,552, 51,552 (Aug. 29, 2014). 

On September 3, 2014, the parties filed a stipulation to dismiss

the case, with appellants stating their intention to file an

application for attorneys’ fees. 

The district court denied appellants’ motion for attorneys’

fees under the EAJA on the ground that the remand in Autor I

did not ensure appellants would enjoy a substantive victory, and

thus they were not “prevailing parties” under Buckhannon

Board & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, 532 U.S. 598 (2001). Autor v.

Blank, 161 F. Supp. 3d 111, 113, 117 (D.D.C. 2016). 

Appellants appeal, and our review is de novo. Initiative &

Referendum Inst. v. U.S. Postal Serv., 794 F.3d 21, 23 (D.C.

Cir. 2015).
5

II. 

The EAJA provides that “fees and other expenses” shall be

awarded to the “prevailing party” in a civil suit brought 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). These “fees” include “reasonable attorney

fees.” Id. at § 2412(d)(2)(A). In Buckhannon, 532 U.S. 598,

the Supreme Court interpreted “prevailing party” consistently

across multiple statutes, holding that to be eligible for an award

of attorneys’ fees in derogation of the “American Rule,” id. at

602, there must be a “judicially sanctioned change in the legal

relationship of the parties,” id. at 605. The Court rejected the

“‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing

party’ if [the plaintiff] achieves the desired result because the

lawsuit brought about a voluntary change in the defendant’s

conduct.” Id. at 601. This court has held that

“Buckhannon applies to the definition of ‘prevailing party’

under the EAJA.” Thomas v. Nat’l Sci. Found., 330 F.3d 486,

492 n.1 (D.C. Cir. 2003). It also has adopted a three-part test

for determining whether a party has prevailed under

Buckhannon: “(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. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir.

2010) (quoting District of Columbia v. Straus, 590 F.3d 898,

901 (D.C. Cir. 2010)) (internal quotation marks omitted). 

Appellants do not meet this test.

Appellants seek prevailing party status on the basis that

Autor I structured the remand in a way that invalidation of the

lobbyist ban was inevitable. Specifically, they point to this

court’s “dispositive questions” for which, they maintain, “the
6

government had, and has, no satisfactory answers.” Appellants’

Br. 12. And they maintain that interpreting Buckhannon not to

preclude the award of fees in their circumstances is necessary

to avoid government manipulation of the Buckhannon rule. 

Neither contention is persuasive.

Appellants rely on Waterman Steamship Corp. v. Maritime

Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), where the court

concluded that prevailing parties are those who succeed on any

significant issue that “achieve[d] some of the benefit the parties

sought in bringing suit.” Id. at 1121 (quoting Tex. State

Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782,

791 (1989)) (alteration in original). Although recognizing that

a “plaintiff need not prevail on the ‘central issue’ in the

litigation,” id. (quoting Tex. State Teachers Ass’n, 489 U.S. at

791), the court interpreted “‘benefit’ to mean something more

than an enhanced legal position in a proceeding that ultimately

fails to supply any material relief,” id. at 1122. A remand to an

agency or trial court for further proceedings generally will not

justify an award of attorneys’ fees. Id. at 1122-23. But see

SecurityPoint Holdings, Inc. v. Transp. Sec. Admin., 836 F.3d

32 (D.C. Cir. 2016). The court acknowledged, however, that

attorneys’ fees may be awarded where a remand is structured

“such that a substantive victory will obviously follow.” Id. at

1123. Waterman preceded Buckhannon, but this court has since

reaffirmed that such a structured remand constitutes a “‘courtordered change in the legal relationship’ between the parties”

that can confer “prevailing party” status under Buckhannon. 

Initiative & Referendum Inst., 794 F.3d at 24 (quoting

Buckhannon, 532 U.S. at 604). 

In appellants’ view, Autor I involved the type of structured

remand that Initiative & Referendum Institute held satisfied the

“prevailing party” test. Id. at 25. “Either the [government]

would amend its regulation, or the District Court would order it
7

to do so.” Id. But the remand discussed in Initiative &

Referendum Institute came after the court had held the

challenged regulation was unconstitutional. Id. at 22-23 (citing

Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d

1299, 1318 (D.C. Cir. 2005)). Appellants’ circumstances are

not similar. Although Autor I narrowed the grounds on which

the government could defend the lobbyist ban, it did not

foreclose the possibility that the government could prevail on

the merits. The court did not reach the merits of the

government’s position “that the lobbyist ban cannot be thought

to constitute significant pressure to give up one’s status as a

paid registered lobbyist,” stating that doing so would be

“premature” given that, at this stage of the case, the court must

assume the allegations of the complaint are true. Autor I, 740

F.3d at 183 (internal quotation marks omitted). And the court

declined to undertake the Pickering analysis of appellants’ First

and Fifth Amendment challenges because the issues were

“unbriefed.” Id. at 184. In these circumstances, appellants’

suggestion that the government would have been unable to

present a meritorious defense on remand is mere speculation.

Regarding manipulation of the Buckhannon rule, appellants

contend that they and others in their position should be treated

as prevailing parties because otherwise the government can

choose to moot a case just before judgment in order to avoid

having to pay attorneys’ fees. In Buckhannon, the Court

expressed skepticism over tactical mooting fears, noting the

absence of empirical evidence and suggesting the “catalyst

theory” could just as well prolong unnecessary litigation by

deterring a defendant from voluntarily changing its conduct. 

532 U.S. at 608. “Given the clear meaning of ‘prevailing party’

in the fee-shifting statutes,” however, the Court concluded that

it “need not determine which way these various policy

arguments cut.” Id. at 610. Appellants suggest that the test in

Buckhannon was shaped by its facts, where the defendants
8

agreed to stay the challenged directive before any judicial ruling

on the merits, and that the Supreme Court’s reasoning supports

awarding attorneys’ fees to plaintiffs seeking equitable relief

when “the government repeals the challenged law after a court

has made rulings related to the illegality of that law.” 

Appellants’ Br. 21. Further, in appellants’ view, forcing

plaintiffs to continue litigating simply to qualify for attorneys’

fees would undermine the judicial policy favoring settlements. 

Here, appellants rely on Palmetto Properties, Inc. v. County

of DuPage, 375 F.3d 542 (7th Cir. 2004). In that case, the

plaintiffs’ claim became moot when the defendants amended

the challenged regulation following the district court’s grant of

partial summary judgment to the plaintiffs. Id. at 549-50. The

Seventh Circuit reasoned that awarding attorneys’ fees in this

circumstance was consistent with Buckhannon because the

defendants’ conduct occurred after a judicial determination in

the plaintiffs’ favor on the substantive merits of their claim, and

the government’s subsequent “action is most persuasively

construed as involuntary — indeed exhibiting judicial

imprimatur.” Id. at 550. Denying attorneys’ fees in such

circumstances “would contradict Buckhannon’s logic, create an

inequitable result, and promote inefficiency because plaintiffs

who have succeeded on the merits would be encouraged to rush

forward with potentially unnecessary litigation, solely to

preserve their entitlement to fees.” Id. The court

acknowledged, however, that the government was “free to moot

the case before the summary-judgment ruling, in which case the

action would have been voluntary.” Id. 

Palmetto is analogous to Initiative & Referendum Institute,

794 F.3d at 24-25; both cases became moot after a judicial

determination for the plaintiffs on the merits of their claims but

before the district court had entered a final judgment or order. 

Appellants maintain their case is similar because all that was
9

left to be done was for the district court to enter a final order

memorializing “the clear thrust of” the remand in Autor I. 

Appellants’ Br. 23-24. Yet appellants’ case does not fall within

this particular “special category of case that is vulnerable to

tactical mooting just before judgment.” Appellants’ Br. 20. No

judicial determination had been made on the merits of

appellants’ constitutional challenges before the government

revised the lobbyist ban. Appellants effectively ask this court

to determine both the substantive merits of their challenges in

the first instance and inquire whether the government’s revision

to the lobbyist ban was involuntary. This is the type of “second

major litigation” that courts have been cautioned to avoid in

adjudicating requests for attorneys’ fees. Buckhannon, 532 U.S.

at 609 (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).

To the extent appellants take issue with the broader impact

of Buckhannon on public interest litigation, the Supreme Court

viewed this type of argument for awarding attorneys’ fees as

falling within the scope of the “catalyst theory” and, in broadly

rejecting that theory, rejected appellants’ concerns as well. See

id. at 607-09. Although the plaintiffs in Buckhannon had not

secured interlocutory relief on appeal before their challenge was

mooted, as appellants did in Autor I, the Supreme Court

reaffirmed that “an interlocutory ruling that reverses a dismissal

for failure to state a claim ‘is not the stuff of which legal

victories are made.’” Id. at 605 (quoting Hewitt v. Helms, 482

U.S. 755, 760 (1987)). Allowing a plaintiff to “recover

attorney’s fees if it established that the complaint had sufficient

merit to withstand a motion to dismiss for lack of jurisdiction or

failure to state a claim on which relief may be granted” was a

“limited form of the catalyst theory.” Id. (internal quotation

marks omitted). 

This court recently stated as much in SecurityPoint

Holdings, Inc., 836 F.3d 32, in overruling Waterman’s
10

requirement that “to ‘prevail’ a party must obtain a change in

the opposing party’s ‘primary conduct,’ such as, in the agency

context, ‘relief from a restriction, grant of a benefit, imposition

of a restriction on others, etc.’” SecurityPoint, 836 F.3d at 37

(quoting Waterman, 901 F.2d at 1122); see id. 35 n.1. The court

concluded that Waterman was inconsistent with Shalala v.

Schaefer, 509 U.S. 292 (1993), which held that a remand by the

district court to an agency could constitute a “final judgment”

for purposes of a plaintiff’s “prevailing party” status if the

remand terminated the district court’s jurisdiction over the case. 

Id. at 37. This type of remand was distinguishable from

“interim victories within the federal court system that are

insufficient for prevailing-party status, such as withstanding a

motion to dismiss or obtaining an interlocutory ruling that

reverses a dismissal for failure to state a claim.” Id. at 38

(internal quotation marks and brackets omitted). In the former

circumstance, the remand alone is sufficient to confer prevailing

party status because the district court had entered a favorable

final judgment even though the plaintiff may not ultimately

succeed before the agency on remand. Id. By contrast, a

plaintiff who obtains the denial of a motion to dismiss has won

only the “opportunity to continue pressing his claims in the case

originally filed. Such a ruling doesn’t compel the defendant to

alter its conduct one whit; it merely means that an attempt to

throw the case out was unsuccessful.” Id. “[A]scertaining the

prevailing party must await further developments in the case.” 

Id. at 39. 

Appellants’ circumstances do not warrant a different result. 

Although they “achieved [a] desired result,” Buckhannon, 532

U.S. at 600, their success in Autor I “lacks the necessary judicial

imprimatur” on the merits of their challenge to the lobbyist ban

to secure the status of “prevailing party,” id. at 605. Because

appellants are not “prevailing parties” under the EAJA, it is

unnecessary to address whether the government’s position was
11

substantially justified. 

Accordingly, we affirm.