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McQUISTON v. MARSH

No. 82-5692.

707 F.2d 1082 (1983)

J.H. McQUISTON, Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the Army, United States Army Missile Command, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Decided June 9, 1983.

Attorney(s) appearing for the Case

Lynn B. Larson, Wickwire, Gavin & Gibbs, Los Angeles, Cal., for plaintiff-appellant.

Fumiko Hachiya Wasserman, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Before WRIGHT and SCHROEDER, Circuit Judges, and EAST, Senior District Judge.

EUGENE A. WRIGHT, Circuit Judge:

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...

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