as soon as it was called to their attention. Accordingly this
Court granted dismissal.
At issue now is Director's contemporaneously-filed motion for
an award of attorneys' fees. For the reasons stated in this
memorandum opinion and order, that motion is denied.
Director's memorandum on both issues was quite lengthy,
comprising 12 pages of argument, a statutory appendix and 11
exhibits. Pudlos in response acknowledged their late filing and
correctly pointed out Director had engaged in overkill.
Director's attorneys' fees request is based on the Equal Access
to Justice Act ("EAJA"), 28 U.S.C. § 2412(b), and Fed.R.Civ.P.
("Rule") 11. This opinion must determine whether petitioners and
their counsel can escape liability under those provisions.*fn2
Neither party has cited any decisions discussing awards in
favor of the United States under EAJA, though by its terms it
does appear to apply. There is however no need to consider the
extent (if any) to which EAJA may provide the United States
protection against litigation that is not "substantially
justified." Director argues only that EAJA permits the United
States to be awarded attorneys' fees for bad faith litigation.
Because bad faith would enable this Court to award fees even in
the absence of statutory authorization (see, e.g., McCandless v.
Great Atlantic & Pacific Tea Co., 697 F.2d 198, 200-01 (7th Cir.
1983)), no question of EAJA statutory interpretation is
This Court finds Pudlos did not file or pursue this action in
bad faith. Director argues the petition was filed for purposes of
delay, but he has provided no evidence to that effect, nor has he
even shown Pudlos have benefited in any way from the delay in the
summons procedure caused by the filing of their petition. On the
contrary, two factors strongly suggest good faith:
1. If Pudlos in fact had a premeditated intent to
cause delay, that goal would have been far better
served by a timely rather than an untimely filing.*fn3
2. Once the filing defect was called to their
attention, Pudlos succumbed and did not oppose
dismissal of the petition.
Any finding of bad faith would be really insupportable.