THOMPSON, Circuit Judge:
McQuiston appeals the district court's order denying him attorney's fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. We affirm.
McQuiston, a manufacturer of defense equipment, sued 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 item covered by the contract 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, 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 attorney's fees and costs based on the EAJA and on various other statutes and theories. The district court summarily concluded without making findings of fact that McQuiston was not a prevailing party under EAJA, that the Army's position was substantially justified, and that the motion was untimely. McQuiston appealed. We held that although McQuiston's motion was not timely under 28 U.S.C. § 2412(d), it was timely under 28 U.S.C. § 2412(b), and we remanded the case to the district court to determine whether McQuiston was the prevailing party and whether the government acted in bad faith. McQuiston v. Marsh, 707 F.2d 1082 (9th Cir.1983) ("McQuiston I"). We rejected McQuiston's other theories of recovery. Id. 1085-86.
Following our remand to the district court in McQuiston I, the district court held a hearing at which it considered proposed findings of fact and conclusions of law presented by the respective parties. The district court then found that McQuiston was not the prevailing party, that the government had not acted in bad faith, and again denied McQuiston's application for attorney's fees and costs.
A. Timeliness of § 2412(d) Application
In deciding that McQuiston's motion under 28 U.S.C. § 2412(d) was not timely in
After McQuiston I was decided, Congress amended 2412(d)(1) by adding subsection (d)(2)(G). The term "final judgment" was defined as "... a judgment that is final and not appealable ..." See Act of August 5, 1985, § 2(c)(2), Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (to be codified at 28 U.S.C. § 2412(d)(2)(G)). This amendment effectively changed the law in this circuit and overruled that portion of McQuiston I in which we had defined the term "final judgment" in 28 U.S.C. § 2412(d)(1)(B) as heretofore stated. The 1985 amendment provided that "... amendments made by this Act shall apply to cases pending on ... the date of the enactment of this Act." Section 7(a), 1985 U.S.Code Cong. & Ad.News (99 Stat.) at 186. This case was still pending on the date the Act was enacted, and, as a result, McQuiston's application for fees was thereby rendered timely under 28 U.S.C. § 2412(d).
B. Prevailing Party
1. Legal Standard and Standard of Review
EAJA permits an award of fees to the "prevailing party." 28 U.S.C. § 2412(b), (d). The district court found that McQuiston was not the prevailing party for purposes of 28 U.S.C. § 2412(b). It accordingly denied McQuiston's motion for attorney's fees and costs.
As we stated in McQuiston I:
707 F.2d at 1085 (some citations omitted).
The determination whether a party is a "prevailing party" is a factual one. McQuiston I, 707 F.2d at 1085. Accord Citizens Coalition for Block Grant Compliance v. City of Euclid, 717 F.2d 964, 966-67 (6th Cir.1983). We may not disturb the district court's findings of fact unless they are clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see Citizens Coalition, 717 F.2d at 967.
In making its findings, the district court found the gravamen of McQuiston's complaint
McQuiston relies on Cher v. Forum Int'l. Ltd., 692 F.2d 634 (9th Cir.1982), cert. denied, 462 U.S. 1120, 103 S.Ct. 3089, 77 L.Ed.2d 1350 (1983) to argue that this court must give the district court's findings "special scrutiny" because, he contends, the district court adopted as its findings the findings proposed by the government's counsel. This argument is not persuasive. McQuiston correctly characterizes Cher as requiring special scrutiny to proposed findings adopted verbatim by the district court. Id. at 637; accord, Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 n. 3 (9th Cir.1984). However, the Supreme Court, while reiterating its criticism of verbatim adoption of proposed findings, disapproved departure from the clearly erroneous standard of review mandated by Fed.R.Civ.P. 52(a). Anderson, 105 S.Ct. at 1510-11. In Clady v. County of Los Angeles, 770 F.2d 1421 (9th Cir.1985), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986), we recognized Anderson and declined to scrutinize closely an order in which the district court had allegedly adopted, as its own, 171 of the 178 sub-parts of the prevailing party's proposed findings. We noted that the district court did not uncritically accept the proposed findings. Id. at 1427. The same is true in this case. Out of fifteen findings submitted by the Army, the district court modified three and added six. It is clear from the record that the district court did not uncritically accept findings proposed by the Army.
The district court did not clearly err by finding that McQuiston was not a prevailing party. In reviewing the findings and the evidence before the district court on which those findings were based, we are not "left with the definite and firm conviction that a mistake has been committed." Pullman-Standard v. Swint, 456 U.S. 273, 284-85 n. 14, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).
Because the district court did not clearly err by finding that McQuiston was not a prevailing party under either subsection (b)