Gary D. Austin, Ann Crispin, Arlana Hines, Anola Nightengale v. Dep't of Com., 742 F.2d 1417 (Fed. Cir. 1984). · Go Syfert
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Gary D. Austin, Ann Crispin, Arlana Hines, Anola Nightengale v. Dep't of Com., 742 F.2d 1417 (Fed. Cir. 1984). Cases Citing This Book View Copy Cite
53 citation events (6 in the last 25 years) across 15 distinct courts.
Strongest positive: Watterson Construction Co. v. United States (uscfc, 2012-07-31)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) Watterson Construction Co. v. United States
Fed. Cl. · 2012 · confidence medium
Whether Plaintiff Is A “Prevailing Party.” The United States Court of Appeals for the Federal Circuit has stated that “[a]l-though the EAJA does not define the term ‘prevailing party,1 ‘[a] typical formulation is that plaintiffs may be considered “prevailing parties” for attorney fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit[.]”’ Austin v. Dep’t of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984) (quoting Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983)) (seco…
cited Cited as authority (rule) Filtration Development Co., LLC v. United States
Fed. Cl. · 2005 · confidence medium
Austin v. Dep’t of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984).
discussed Cited as authority (rule) Forestry Surveys & Data v. United States
Fed. Cl. · 1999 · confidence medium
The Federal Circuit has held that a plaintiff is a “prevailing party,” for purposes of the EAJA, when it “ ‘sueceed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” Austin v. Dept. of Commerce, 742 F. 2d 1417, 1419 (Fed.Cir.1984) (citing Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983)); see also Neal & Co. v. United States, 121 F.3d 683, 685 (Fed.Cir.1997).
discussed Cited as authority (rule) Former Employees of Shaw Pipe, Inc. v. United States Secretary of Labor
Ct. Intl. Trade · 1998 · confidence medium
See Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3d Cir.1984) (“When a court vacates an administrative decision and remands the matter for reconsideration, the successful party generally should not recover attorney’s fees at that particular time since the claimant’s rights and liabilities and those of the government have not yet been determined.”); Austin v. Department of Commerce, 742 F.2d 1417, 1421 (Fed.Cir.1984) (holding party which has claim remanded to agency but loses following remand is not a prevailing party, and thus not entitled to attorney’s fees an…
discussed Cited as authority (rule) FDL Technologies, Inc. v. United States
Ct. Cl. · 1992 · confidence medium
By the same token, however, “[a] party need not have litigated to final judgment and have been awarded the ultimate relief requested in order to be entitled to an award of fees under the EAJA____” Austin v. Dep’t of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984). “[A] party may be considered to have prevailed even when the legal action stops short of final appellate, or even initial, judgment due to a settlement or intervening mootness____” Grano v. Barry, 783 F.2d 1104, 1108 (D.C.Cir.1986).
discussed Cited as authority (rule) Olympic Marine Services, Inc. v. United States
E.D. Va. · 1992 · confidence medium
Martin v. United States, 12 Cl.Ct. 223, 227 (1987) (citing Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Olsen v. Department of Commerce, 735 F.2d 558, 562 (Fed.Cir.1984)), aff 'd in part & vacated in part, 852 F.2d 1292 (Fed.Cir.1988).
discussed Cited as authority (rule) Poole v. Rourke
E.D. Cal. · 1991 · confidence medium
Although EAJA does not define the term “prevailing party,” substantial case law addresses the definition: “A typical formulation is that plaintiffs may be considered ‘prevailing parties’ for attorney fee purposes if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983); see also Lear Siegler, Inc. v. Lehman, 893 F.2d 205 , 208 (9th Cir.1989) (plaintiff not prevailing party where it did not demonstrate it received relief in its…
discussed Cited as authority (rule) A. Hirsh, Inc. v. The United States, and Paint Applicators Trade Action Coalition (2×)
Fed. Cir. · 1991 · confidence medium
Under the Equal Access to Justice Act, attorney fees and costs may only be awarded to a “prevailing party.” 28 U.S.C. § 2412 (d)(1)(A). 5 A “prevailing party” “typical[ly] ... succeed[s] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.” Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983) (further citations omitted)).
cited Cited as authority (rule) Ohn J. Lokos v. Equal Employment Opportunity Commission
Fed. Cir. · 1991 · confidence medium
Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Olsen v. Department of Commerce, Census Bureau, 735 F.2d 558, 562 (Fed.Cir.1984).
discussed Cited as authority (rule) James H. Grubka v. Department of the Treasury
Fed. Cir. · 1991 · confidence medium
See Olsen v. Department of Commerce, Census Bureau, 735 F.2d 558, 560-561 (Fed.Cir.1984); Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Gavette v. Office of Personnel Management, 808 F.2d 1456, 1468 (Fed.Cir.1986) (en banc); and Covington v. Department *1041 of Health and Human Servs., 818 F.2d 838, 840 (Fed.Cir.1987).
cited Cited as authority (rule) A. Marie Phillips v. General Services Administration, (Two Cases)
Fed. Cir. · 1991 · confidence medium
See Gavette, 808 F.2d at 1461 ; Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Olsen, 735 F.2d at 562 .
discussed Cited as authority (rule) James A. Schultz v. The United States
Fed. Cir. · 1990 · confidence medium
Rule 54(d) of the United States Claims Court provides that “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” A “prevailing party” “ ‘typical[ly] ... succeed[s] on any significant issue in litigation which achieves some of the benefits the part[y] sought in bringing suit.’ ” Austin v. De *166 partment of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984) (quoting Hensley v. Eckerkart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983)) (further citations omitted).
cited Cited as authority (rule) A. Hirsh, Inc. v. United States
Ct. Intl. Trade · 1990 · confidence medium
Austin v. Dept. of Commerce, 742 F.2d 1417, 1420-21 (Fed.
discussed Cited as authority (rule) William J. Riese v. United States Postal Service
Fed. Cir. · 1990 · confidence medium
However, as this court has held: "[I]f a party wins on a purely procedural issue which results in a remand, then this has not made him a 'prevailing party' under other attorney fee provisions." Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984).
cited Cited as authority (rule) Gerald L. Naekel v. Department of Transportation, Federal Aviation Administration
Fed. Cir. · 1989 · confidence medium
News 4953, 4984, 4990; Austin v. Department of Commerce, 742 F.2d 1417, 1419-20 (Fed.Cir.1984).
discussed Cited as authority (rule) Union of Concerned Scientists v. U.S. Nuclear Regulatory Commission
D.C. Cir. · 1988 · confidence medium
In making the determination whether petitioners prevailed on any significant issue, we must “look to the substance of the litigation to determine whether an applicant has substantially prevailed in its position, and not merely the technical disposition of the case.” Austin v. Department of Commerce, 742 F.2d 1417,1420 (Fed.Cir. 1984) (emphasis in original).
discussed Cited as authority (rule) Union Of Concerned Scientists v. U.S. Nuclear Regulatory Commission
D.C. Cir. · 1988 · confidence medium
In making the determination whether petitioners prevailed on any significant issue, we must "look to the substance of the litigation to determine whether an applicant has substantially prevailed in its position, and not merely the technical disposition of the case." Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984) (emphasis in original). 8 Our decision resolved two issues.
discussed Cited as authority (rule) Stone v. Heckler
S.D. Ill. · 1987 · confidence medium
Kopunec, supra, id. (quoting Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984). [Emphasis added.] In a case such as the instant one, where the defendant claims its own remedial action (here its reevaluation of plaintiff’s claim for benefits in light of a “new” standard promulgated by Congress) resulted in the reinstatement of benefits, rather than plaintiff’s lawsuit, the test is whether plaintiff’s lawsuit was a catalyst motivating defendants to provide the primary relief sought in a manner desired by litigation.
discussed Cited as authority (rule) Martin v. United States
Ct. Cl. · 1987 · confidence medium
Under the EAJA, plaintiff would be entitled to both attorney fees and expenses for litigation in court, or in prior agency adjudications, but not for fees or expenses incurred during administrative consideration of the claim before litigation. 28 U.S.C. § 2412 (d)(1)(A); 5 U.S.C. § 504 (a)(1); Austin v. Dept. of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984); Olsen v. Dept. of Commerce, 735 F.2d at 562 .
discussed Cited as authority (rule) L.G. Lefler, Inc., D/B/A Defco Construction Company v. The United States
Fed. Cir. · 1986 · confidence medium
See Keely v. Merit Systems Protection Board, 793 F.2d 1273, 1275 (Fed.Cir.1986); Keely v. Merit Systems Protection Board, 760 F.2d 246, 248 (Fed.Cir.1985); Austin v. Department of Commerce, 742 F.2d 1417, 1419-20 (Fed.Cir.1984).
discussed Cited as authority (rule) United States v. 2.61 Acres Of Land, More Or Less, Situated In The County Of Mariposa, State Of California
9th Cir. · 1986 · confidence medium
See Hanrahan v. Hampton, 446 U.S. 754, 757 , 100 S.Ct. 1987, 1989 , 64 L.Ed.2d 670 (1980); Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3d Cir.1984); Austin v. Department of Commerce, 742 F.2d 1417, 1421 (Fed.Cir.1984).
discussed Cited as authority (rule) Charles E. Gavette v. Office of Personnel Management and Department of the Treasury (2×)
Fed. Cir. · 1986 · confidence medium
Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984). . 5 U.S.C. § 504 , 28 U.S.C. § 2412 (1982), amended by Pub.L.
cited Cited as authority (rule) Gavette v. Office of Personnel Management
Fed. Cir. · 1986 · confidence medium
Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984). . 5 U.S.C. § 504 , 28 U.S.C. § 2412 (1982), amended by Pub.L.
discussed Cited as authority (rule) United States v. 2.61 Acres of Land
9th Cir. · 1985 · confidence medium
See Hanrahan v. Hampton, 446 U.S. 754, 757 , 100 S.Ct. 1987, 1989 , 64 L.Ed.2d 670 (1980); Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3d Cir.1984); Austin v. Department of Commerce, 742 F.2d 1417, 1421 (Fed.Cir.1984).
discussed Cited as authority (rule) Robert Kreimes Joan E. Kreimes v. Department of Treasury (2×)
6th Cir. · 1985 · confidence medium
A. A plaintiff is a prevailing party under the Equal Access to Justice Act if he “ ‘succeedfs] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); Omaha Tribe of Nebraska v. Swanson, 736 F.2d 1218, 1220-21 (8th Cir.1984); Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984).
discussed Cited as authority (rule) Ana M. UVIEDO, Plaintiff-Appellee, v. STEVES SASH AND DOOR COMPANY, Defendant-Appellant (2×)
5th Cir. · 1985 · confidence medium
Reapportionment Cases, 745 F.2d 610, 612 (10th Cir.1984) (post-Hensley ) 14 Austin v. Dept. of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984) (post-Hensley ) 15 716 F.2d 1066 , 1071 n. 6 (5th Cir.1983) (post-Hensley ) 16 720 F.2d 1383 (5th Cir.1983), reh. en banc denied, 734 F.2d 1479 (5th Cir.1984) 17 434 U.S. 412 , 98 S.Ct. 694 , 54 L.Ed.2d 648 (1978) 18 Id. at 420 , 98 S.Ct. at 699 , quoting Remarks of Senator Humphrey at 110 Cong.Rec. 12724 (1964) 19 Id. at 417 , 98 S.Ct. at 698 (citations omitted) 20 Hensley, supra, 461 U.S. at 433 , 103 S.Ct. at 1939 21 Id 22 Id. at 437 , 103 S.Ct. at 1941
cited Cited as authority (rule) Shull v. United States
Ct. Cl. · 1984 · confidence medium
As to "prevailing party" generally see Austin v. Department of Commerce, 742 F.2d 1417 at p. 1419 (Fed.Cir.1984).
discussed Cited "see" Fru-Con Construction Corp. v. United States
Fed. Cl. · 1999 · signal: see · confidence high
In effect, substance should prevail over form.’” Schultz, 918 F.2d at 166 (citation omitted); see Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984) (prevailing party is one successful on significant issue).
cited Cited "see" Garland D. Jarman v. Department of the Navy
Fed. Cir. · 1998 · signal: see · confidence high
See Austin v. Department of Commerce, 742 F.2d 1417, 1420-21 (Fed.Cir.1984).
cited Cited "see" Stanislav Kopunec, Etc., Cross-Appellant v. Alan C. Nelson, Etc., Cross-Appellees
10th Cir. · 1986 · signal: see · confidence high
See Austin v. Department of Commerce, 742 F.2d 1417, 1420 (Fed.Cir.1984) (citing Devine v. Sutermeister, 733 F.2d 892, 898 (Fed.Cir.1984)).
discussed Cited "see, e.g." Fleming v. Bowen
D.D.C. · 1986 · signal: see also · confidence medium
Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066, 1067 (D.C.Cir.1985) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 , 103 S.Ct. 1933, 1939 , 76 L.Ed.2d 40 (1983)); Martin v. Heckler, 773 F.2d 1145, 1149 (11th Cir.1985); see also Austin v. Department of Commerce, 742 F.2d 1417, 1419 (Fed.Cir.1984).
cited Cited "see, e.g." In Re Robert H. Cohen and Michael Maggio, Attorneys
6th Cir. · 1986 · signal: see also · confidence medium
See also Austin v. Department of Commerce, 742 F.2d 1417, 1420 (D.C.
discussed Cited "see, e.g." United States of America v. Kemper Money Market Fund, Inc., and Robert L. Wenz & Merrick Consultants, Ltd., Intervening
7th Cir. · 1986 · signal: see, e.g. · confidence medium
See, e.g., Austin v. Department of Commerce, 742 F.2d 1417, 1420-21 (Fed.Cir.1984); Kitchen Fresh, Inc. v. NLRB, 729 F.2d 1513, 1513 (6th Cir.1984); see also Rico-Sorio v. U.S. Immigration and Naturalization Service, 552 F.Supp. 965, 968 (D.Or.1982); cf. Hanrahan v. Hampton, 446 U.S. 754, 758 , 100 S.Ct. 1987, 1989 , 64 L.Ed.2d 670 (1980) (per curiam) (“procedural or evi-dentiary rulings ... [are] not matters on which a party can ‘prevail’ for the purposes of shifting his counsel fees to the opposing party under [42 U.S.C. §] 1988”). 3 Thirdly, taxpayers read “the position of the Un…
Retrieving the full opinion text from the archive…
Gary D. AUSTIN, Ann Crispin, Arlana Hines, Anola Nightengale, Petitioners,
v.
DEPARTMENT OF COMMERCE, Respondent
Appeal 83-1367 to 83-1369, 83-1378.
Court of Appeals for the Federal Circuit.
Aug 31, 1984.
742 F.2d 1417
Phillip R. Kete, Washington, D.C., argued, for petitioners., Robin M. Gerber, Washington, D.C., was on brief, for petitioners., Sandra P. Spooner, Washington, D.C., argued, for respondent. With her on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Beacham O. Brooker, Jr., Washington, D.C., L. Jon Pearson, Dept, of Commerce, Washington, D.C., of counsel.
Markey, Nichols, Baldwin, Kashiwa.
Cited by 45 opinions  |  Published
KASHIWA, Circuit Judge.

This is an application under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982), for an award of attorney fees incurred in connection with petitioners’ appeal to this court from a decision of a presiding official of the Merit Systems Protection Board upholding a reduction in force by the Census Bureau.

I

On March 21, 1982, petitioners, [2] Census Bureau employees, were downgraded pursuant to an agency-wide reduction in force (RIF). A large number of the affected employees appealed the RIF through their union. Most of the appeals, including petitioners’, were consolidated and assigned to one presiding official of the Merit Systems Protection Board. There then ensued a series of orders, motions, and responses thereto including petitioners’ request for a hearing on whether their competitive levels were properly established. Petitioners were given a hearing on certain issues but the presiding official denied petitioners’ request for a hearing on the competitive level issue. However, in her decision affirming petitioners’ reassignments, the presiding official reached the merits of this issue concluding that the agency had shown by a preponderance of the evidence that it properly established petitioners’ competitive levels.

On appeal, petitioners requested that the presiding- official’s determination be “set aside” because there was no substantial evidence to support it or because it had been obtained without procedures required[*1419] by law. The petitioners alleged that the record was devoid of evidence since petitioners were not permitted to introduce evidence at a hearing. The government justified the presiding official’s denial of a hearing on the grounds that the presiding official had applied sanctions and this court determined that the only issue before us was whether petitioners were entitled to introduce evidence at a hearing, concluding that they were, as no sanctions were issued. [3] We, therefore, vacated the presiding official’s determination that competitive levels were properly established and remanded for a hearing on this issue.

I

As a threshold issue, the government argues that the attorney’s fees incurred in this case may not be awarded pursuant to the Equal Access to Justice Act in light of the existence of another statute, the Back Pay Act, 5 U.S.C. § 5596 (1982), which provides for the recovery of fees in this case. The government’s argument is not well taken. In a recent decision of this court, Olsen v. Department of Commerce, 735 F.2d 558 (Fed.Cir.1984), involving facts indistinguishable from those in this case, (petitioner successfully appealed a decision of the Merit Systems Protection Board upholding a reduction in force by the Census Bureau), we held that the EAJA covered the award of attorney fees for the judicial proceedings in that case.

The government asks this court to interpret the Equal Access to Justice Act differently because the decision in Olsen imposes an unnecessary burden upon both employees and the government in litigating the question of attorney fees and because the court did not specifically address the Back Pay Act. [4] Whatever we may think of the government’s arguments, “(w)e are of course bound by the precedents of our own circuit * * * ” Bailey v. United States, 721 F.2d 357, 360 (Fed.Cir.1983). We, therefore, conclude that petitioner correctly applied for attorney fees under the Equal Access to Justice Act. We now turn to the merits of petitioners’ claim.

II

The Equal Access to Justice Act provides in relevant part:

(d)(1)(A) except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, * * * unless the court finds that the decision of the United States was substantially justified or that special circumstances make an award unjust.

We, therefore, must first determine whether petitioners were prevailing parties within the meaning of the Act. Although the EAJA does not define the term “prevailing party”, “[a] typical formulation is that plaintiffs may be considered ‘prevailing parties’ for attorney fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit,” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), quoting Nudeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir.1978). The legislative history makes clear that prior judicial interpretations of the term “prevailing party” should be applied to the Equal Access to Justice Act and that the phrase should not be limited “to a victor only after entry of a final judgment following a full trial on the merits.” H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.CODE[*1420] CONG. & AD.NEWS 4953, 4984, 4990. A party will be deemed prevailing if he obtains a settlement of his case; if the plaintiff has sought a voluntary dismissal of a groundless complaint; or even if he does not ultimately prevail on all issues. Id. The legislative history goes on to state:

In cases that are litigated to conclusion, a party may be deemed “prevailing” for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal. A fee award may be appropriate where the party has prevailed on an interim order which was central to his case, Parker v. Matthews, 411 F.Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is “sufficiently significant and discrete to be treated as a separate unit,” Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir.1974).

It is therefore clear that a party need not have litigated to final judgment and have been awarded the ultimate relief requested in order to be entitled to an award of fees under the EAJA. As stated recently by this court, “[a] court should look to the substance of the litigation to determine whether an applicant has substantially prevailed in its position, and not merely the technical disposition of the case or motion.” Devine v. Sutermeister, 733 F.2d 892, 898 (Fed.Cir.1984).

However, if a party wins on a purely procedural issue which results in a remand, then this has not made him a “prevailing party” under other attorney fee provisions. In Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), plaintiffs were awarded attorney fees based on three favorable rulings by the Seventh Circuit: reversal of the district court’s directed verdict and reversal of two of the district court’s rulings on discovery motions. The Supreme Court reversed the award of fees, holding that plaintiffs were not “prevailing parties” under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. The Court stated that while Congress intended to award interim fee awards, “it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claim.” Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980). The Court concluded that the parties had not prevailed on the merits since “the Court of Appeals held only that respondents were entitled to a trial of their cause.” Id. at 758, 100 S.Ct. at 1990. See also, Swietlowich v. County of Bucks, 620 F.2d 33 (3d Cir.1980) (vacation of judgment because of error in jury instructions and remand for new trial did not make plaintiff a prevailing party); Bly v. McLeod, 605 F.2d 134 (4th Cir.1979) (remand for clarification and impanelling of three-judge district court did not make plaintiffs prevailing parties).

The Second Circuit has applied this reasoning to conclude that a plaintiff who succeeded in obtaining a remand for the taking of additional evidence in a Social Security case was not a prevailing party for purposes of the EAJA. In McGill v. Secretary of Health and Human Services, 712 F.2d 28 (2nd Cir.1983), plaintiff appealed a denial of social security benefits to the district court. The case was remanded to the administrative law judge to remedy certain procedural defects and the court awarded attorney fees. The Second Circuit reversed the award of fees, despite the fact that all the party requested on appeal was a remand.

Unlike a plaintiff who files a lawsuit alleging violations of a procedural due process right and seeks compensation for that deprivation, * * * the ultimate relief to which a social security claimant is normally entitled is not vindication of procedural rights but an award of benefits for a claimed disability. While it is true that a favorable ruling on plaintiff’s procedural claim that the AU should have conducted a more thorough hearing may ultimately affect the outcome on the merits of plaintiffs disability claim, nevertheless her procedural claim is not a matter on which plaintiff can be said to[*1421] prevail for purposes of shifting counsel fees, [citations omitted].

McGill, 712 F.2d at 32.

Similarly, in this case, petitioners requested that the presiding official’s decision should be reversed because it was not supported by substantial evidence or because it was obtained with procedures not in accordance with law. This court concluded that the determination that the agency had properly established petitioners’ competitive levels could not stand because petitioners were entitled to introduce evidence at a hearing. We remanded petitioners’ cases to the Merit Systems Protection Board to remedy this defect. We, however, expressed no opinion on the merits of petitioners’ claim, whether in fact their competitive levels were properly established, nor on the ultimate relief to which an employee adversely affected by a RIF is entitled, reinstatement. Accordingly, petitioners’ request for attorney fees is denied.

DENIED

2

. The four petitioners filed separate appeals to this court. Three of the appeals, Crispin v. Department of Commerce, 732 F.2d 919 (Fed. Cir.1984), Hines v. Department of Commerce, 738 F.2d 453 (Fed.Cir.1984), and Nightengale v. Department of Commerce, 738 F.2d 453 (Fed. Cir.1984), raised only the issue of whether competitive levels were properly established. Austin v. Department of Commerce, 738 F.2d 453 (Fed. Cir.1984), raised the additional issue of whether petitioner was entitled to displace another employee. We affirmed the board on the latter issue and time related to that issue was not included in this application for attorney’s fees.

3

. Under the regulations governing MSPB appeals, the presiding official may impose sanctions if a party fails to comply with an order. 5 C.F.R. 1201.43. The sanctions include prohibiting a party from introducing evidence covering the information sought in the order which has not been complied with.

4

. The government requested en banc consideration of this case and then withdrew this request because the panel in Olsen did not specifically address the Back Pay Act. However, although in Olsen the court did not specifically address the Back Pay Act with regard to awarding fees before this court, it did address the Back Pay Act for awarding fees before the Board. The argument was made and the court was certainly aware of the Act.