J.H. McQuiston v. John O. Marsh, Jr., Secretary of the Army, United States Army Missile Command

In this appeal, we consider whether the district court properly denied McQuiston’s motion for attorneys’ fees. The court summarily concluded that McQuiston was not a prevailing party, the Army was substantially justified in its position, and the motion was untimely. We find, however, that the motion was timely under 28 U.S.C. § 2412 (b), and we remand to the district court to determine whether McQuiston was the prevailing party and whether the government acted in bad faith.

McQuiston, a manufacturer of defense equipment, filed suit to enjoin the United States Army from awarding a contract that allegedly violated federal procurement laws. The district court removed the case from its calendar until the General Accounting Office ruled on McQuiston’s bid protest.

Meanwhile, the Army conducted an internal audit and determined that the part was no longer required. The Army cancelled the contract solicitation and moved to dismiss McQuiston’s complaint as moot. The court granted the government’s motion on January 14, 1982, but retained jurisdiction “for the purpose of allowing plaintiff to seek relief, in the future ... as a result of any such new procurement.” McQuiston moved for…