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Commissioners of Highways v. United States

ELR Citation: 13 ELR 20283
Nos. Nos. 81-1569, -1718, 684 F.2d 443/(7th Cir., 05/27/1982)

The Seventh Circuit affirms the district court decision denying a request for attorney fees by the highway commissioners of various Illinois municipalities, ruling that the Equal Access to Justice Act (EAJA) does not apply to the proceeding. The court first rules that the action was not "pending on" the effective date of the EAJA because the only unresolved issue on that date was the appeal of the district court's denial of the application for fees. The EAJA is a waiver of sovereign immunity and as such, must be construed strictly.

The court also finds that even if the EAJA applied, appellants would not be entitled to fees. The common fund theory does not apply, because the only beneficiaries of the fund recovered in this case would be the parties themselves. Nor are appellants entitled to fees as prevailing parties in a suit against the United States. Governmental bodies such as the commissioners do not meet the definition of "party" in §204(a) of the EAJA as that definition must be interpreted in light of the stated purposes of the Act to support litigation by private citizens who without the recovery of fees would be deterred from bringing suit against the United States. In addition, the district court correctly rejected appellants' arguments that they are entitled to fees either as owners of property subject to a condemnation proceeding abandoned by the United States or under the court's inherent equitable powers.

Counsel for Appellants
Ronald Butler
Butler & Rubin
Suite 1614, 55 E. Monroe St., Chicago IL 60603
(312) 332-2430

David L. Lee
Winston & Strawn
Suite 5000, One First Nat'l Plaza, Chicago IL 60603
(312) 558-5600

Counsel for Appellees
Robert L. Klarquist, Edward Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Before Sprecher,* Bauer, and Bonsal,** JJ.