Dejong

MEMORANDUM *

A jury acquitted Thomas DeJong of three counts of illegally discharging waste-water in violation of 33 U.S.C. § 1311 of the Clean Water Act. DeJong moved for attorney fees under the Hyde Amendment, 18 U.S.C. § 3006A (notes), and the district court granted the motion. The government appeals the fee award.

We review an award of attorney fees under the Hyde Amendment for abuse of discretion, United States v. Lindberg, 220 F.3d 1120, 1124 (9th Cir.2000), and will not reverse an award of attorney fees unless we have “a firm conviction that the district court committed a clear error of judgment.” Id.

DeJong concededly meets most of the elements for an award of attorney fees under the Hyde Amendment. The only disputed legal issue is whether the prosecution of DeJong was “vexatious, frivolous or in bad faith.” Pub. L. 105-119 tit. VI, § 617, 111 Stat. 2519 (1997). The parties do not dispute the standard applied by the district court; in fact, the district court applied the more stringent standard urged by the government below and nonetheless found for DeJong. Rather, the parties argue about whether the facts support an award.

The discharges alleged in the indictment were…