ELR Citation: ELR 20040
No(s). 07-5026 (D.C. Cir. Feb 13, 2009)

The D.C. Circuit denied an individual's request for attorney fees and expenses under the Equal Access to Justice Act (EAJA) despite having won her lawsuit against the U.S. Department of Interior (DOI) concerning the mute swan. In that case, the court held that the DOI's exclusion of the mute swan from the protected bird list was arbitrary and capricious under the Administrative Procedure Act. The EAJA authorizes an award of fees to a party prevailing against the government unless the government establishes that its position was "substantially justified or . . . special circumstances make an award unjust." Here, DOI's position at the merits stage was substantially justified. Although the DOI's position did not prevail in the underlying case, the DOI's interpretation and legal arguments had a reasonable basis in fact and in the text and purpose of the controlling statute and treaties. Accordingly, the individual is not entitled to fees or expenses under the EAJA.