Civil Procedure – EAJA — attorney fees

United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure – EAJA — attorney fees

A janitorial company that cleaned a cement factory is not entitled to attorney fees as a prevailing party from the Department of Labor under the EAJA, even though the DOL unsuccessfully prosecuted it as a mining company.

“The legislative history of the Equal Access to Justice Act, however, favors the petitioner’s position. The conference report on the original Act (enacted in 1980, with an expiration date of 1984) was explicit that a prevailing party can be a defendant who obtained a voluntary dismissal of the government’s suit, H.R. Rep. No. 1431, 96th Cong., 2d Sess. 21 (1980), as were the House and Senate reports on reenacting the Act. H.R. Rep. No. 120, 99th Cong., 1st Sess. 13 (1985); S. Rep. No. 586, 98th Cong., 2d Sess. 10-11 (1984). But similar language appeared in the legislative history of the fee-shifting provisions at issue in Buckhannon, and the Court was unmoved by it. 532 U.S. at 607-08. And the legislative history of the Equal Access to Justice Act is not crystal-clear so far as relates to this case, because it does not foreclose the possibility that a voluntary dismissal must be with prejudice to entitle the defendant to prevailing-party status.”

Petition Denied.

11-3687 Jeroski v. FMSHRC

Petition to Review Order of Federal Mine Safety and Health Review Commission, Posner, J.