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United States v. Hallmark Constr. Co.

Citation: 30 ELR 20266
No. No. 99-1948, 200 F.3d 1076/49 ERC 1046/(7th Cir., 01/11/2000) Remand of district court denial of attorneys fees

The Seventh Circuit remanded a district court denial of attorneys fees that a construction company requested under the Equal Access to Justice Act when it prevailed in a government action in which the U.S. Corps of Engineers alleged that the company violated the Clean Water Act by discharging pollutants into a wetland. The court first holds that it cannot determine on the record before it whether the district court abused its discretion in denying the company attorneys fees. It is uncontested that the company was the prevailing party and that its fee application was timely filed. The question of whether the government's position was substantially justified remains. The trial court denied attorneys fees because the government's position was not baseless. However, the government bears the burden of proving that its position is substantially justified. Where, as here, the trial court's merits opinion so strongly favors the company against the government, a more thorough explanation for denying attorneys fees to the prevailing party is warranted.

[Prior decisions in this litigation are published at 28 ELR 21438 and 29 ELR 20168 and 20274.]

Counsel for Plaintiff
Christopher E. Tracy
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendant
Johnine J. Brown
Brown Environmental Group
35 E. Wacker Dr., Ste. 1356, Chicago IL 60601
(312) 236-1450

Before Bauer and Cudahy, JJ.