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Fee-Shifting and the Prevailing Party Rule: Federal Circuit Explains

By Tanya Roth, Esq. on March 15, 2012 | Last updated on March 21, 2019

The Federal Circuit Court of Appeals granted a request for attorneys fees and expenses under the Equal Access to Justice Act to Thomas O. Ward, a former mechanic for the U.S. Postal Service.

In 2008, Ward was involved in an argument with a supervisor. He was cited by the USPS for improper conduct and was issued a Notice of Proposed Removal. This notice was based solely on that one incident. Ward was subsequently removed from his position. He appealed the removal to the Merit Systems Protection Board and appeared before an administrative judge.

At the hearing, other instances of misconduct were revealed. The Board sustained the removal, notwithstanding the previous allegations of misconduct.

Ward appealed to the Federal Circuit Court of Appeals. The court vacated the judgment, finding that the Board erred in its application of the prior misconduct allegations, failing to allow Ward the opportunity to rebut those allegations.

The court also found that the USPS erred by not mentioning the prior misconduct in the Notice of Proposed Removal.

After the remand, the case went back before the administrative judge and the parties settled. Subsequently, Ward sought attorneys fees under 28 U.S.C. 2412(d) for the expenses incurred before the court of appeals.

While parties are typically required to bear the burden of their own attorneys fees, there are specific statutory exceptions carved out. In the Equal Access to Justice Act, a party may collect fees against the United States.

Fees can only be awarded to a prevailing party in a suit against the United States if the government's position in the case was not "substantially justified," if no "special circumstances make the award unjust," and if the party seeking the award timely files with the court.

In this case, the big question hinged on whether the remand by the Federal Circuit was sufficient to make Ward a "prevailing party" for the purposes of the fee-shifting statute.

Due to the fact that the remand was caused by administrative error on the part of the Merit Systems Protection Board, the Federal Circuit Court of Appeals held that Ward was a "prevailing party" and as such, entitled to attorneys fees.

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