230 F.3d 923 (7th Cir. 2000)
Citizens for a Better Environment, Plaintiff-Appellee,v.The Steel Company, also known as  Chicago Steel and Pickling Company, Defendant-Appellant.
No. 99-2709
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 9, 2000Decided October 17, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 95 C 4534--George M. Marovich, Judge.[Copyrighted Material Omitted]
Before Bauer, Easterbrook, and Ripple, Circuit Judges.
Easterbrook, Circuit Judge.


1
The Steel Company  missed reporting deadlines established by the  Emergency Planning and Community Right-To-Know  Act, 42 U.S.C. sec.sec. 11001-50. Notified of its  default by Citizens for a Better Environment  (CBE), The Steel Company quickly furnished all  required documents. Nonetheless CBE filed suit  under the Act's citizen-suit provision. 42 U.S.C.  sec.11046(a)(1). The Act authorizes a civil  penalty of $25,000 per day per report for  tardiness, 42 U.S.C. sec.11045(c), and by the  complaint's calculations The Steel Company could  have owed more than $537 million. The Steel  Company replied that CBE is not entitled to pursue  such a claim. A panel of this court rejected this  argument without discussing CBE's standing, 90  F.3d 1237 (7th Cir. 1996), but the Supreme Court  unanimously reversed. Steel Co. v. Citizens for  a Better Environment, 523 U.S. 83 (1998). Six  Justices concluded that, even if delay in  disclosure injured CBE, that injury could not be  redressed given that any civil penalty would be  paid to the United States rather than a private  plaintiff; CBE therefore lacks a justiciable  controversy with The Steel Company. 523 U.S. at  102-10. Three Justices concluded that Congress  has authorized citizen suits only if the  litigation begins before the firm files all  required reports; these three did not decide  whether CBE has standing. Id. at 131-34 (Stevens,  J., joined by Souter & Ginsburg, JJ.).


2
It took three years and $270,000 in attorneys'  fees for The Steel Company to convince the  federal judiciary that CBE was whistling in the  dark. After the Supreme Court's decision, we know  that this suit never should have been filed. Now  The Steel Company wants to be placed in the  pecuniary position it would have occupied but for  the suit. Accordingly, it moved in the district  court for an award of attorneys' fees under  sec.11046(f), only to be told "no jurisdiction."  1999 U.S. Dist. Lexis 9042 (N.D. Ill. June 8,  1999). Though those words were music to its ears  when sung by the Supreme Court, The Steel Company  insists that this repeat is not in the score.


3
The district court thought that, if CBE lacks  standing to seek civil penalties from The Steel  Company, then The Steel Company must lack  standing to seek attorneys' fees from CBE. A court  either has jurisdiction or it doesn't, the  district judge believed, and the Supreme Court  has put this case in the no-jurisdiction  cubbyhole. Yet "[c]ourts that lack jurisdiction  with respect to one kind of decision may have it  with respect to another. See Szabo Food Service,  Inc. v. Canteen Corp., 823 F.2d 1073, 1077-79  (7th Cir. 1987). A court, for example, always has  jurisdiction to consider its own jurisdiction".  Muthig v. Brant Point Nantucket, Inc., 838 F.2d  600, 603 (1st Cir. 1988) (Breyer, J.). See also  Yang v. INS, 109 F.3d 1185, 1192-94 (7th Cir.  1997). In particular a court may lack authority  to resolve the merits of a claim yet have  jurisdiction to award costs and attorneys' fees  to the prevailing party. We held this in Szabo  Food Service, and the Supreme Court agreed in  Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,  393-98 (1990), and Willy v. Coastal Corp., 503  U.S. 131 (1992). In this very case the Supreme  Court granted certiorari, held a hearing, and  considered whether federal courts had  jurisdiction to entertain the suit. The Court  said no, and it had jurisdiction to say no.  Article III of the Constitution authorized the  proceedings in which the Court gave its answer.  Article III allowed this court on remand to  direct that the district court dismiss the suit.  Article III allowed taxation of costs against CBE  pursuant to 28 U.S.C. sec.1919 in the Supreme  Court and here on remand. Article III allows an  award of other costs of litigation, including  attorneys' fees, incurred in the proceedings.  Although CBE lost because the judiciary could not  redress any injury it suffered from The Steel  Company's delay in filing the required reports,  The Steel Company's injury (the costs of  defending this litigation) assuredly may be  redressed by an order requiring CBE to reimburse  those expenses. That satisfies Article III. The  Steel Company has only to establish that federal  law authorizes the district court to make the  award.


4
The district court's conviction that it may not  award attorneys' fees reflects a misunderstanding  of what the Supreme Court said in this litigation  about Article III. The Court concluded that CBE's  prospect of recovering costs and legal fees if it  prevailed on the merits could not justify  adjudicating the question whether The Steel  Company had violated the Act. "[A] plaintiff  cannot achieve standing to litigate a substantive  issue by bringing suit for the cost of bringing  suit." 523 U.S. at 107. But a fee award is the  substantive issue in The Steel Company's motion.  It has been injured in fact to the tune of  $270,000 and counting. CBE's suit inflicted that  injury, which can be redressed by an award in The  Steel Company's favor. Malicious prosecution and  abuse of process are very old torts that reflect  a defendant's entitlement to be made whole  following wrongful litigation--including  litigation so baseless that it does not even come  within the jurisdiction of the court in which it  was filed. Suppose a federal statute established  the right to recover for loss caused by "wrongful  invocation of federal jurisdiction," affording  compensatory damages to defendants who have been  dragged pointlessly through federal court. The  constitutionality of such a provision could not  be doubted, nor would anyone deny that the  aggrieved former defendant has standing to avail  itself of the federal right so created. Cf. 28  U.S.C. sec.sec. 1495, 2513 (granting such a  remedy to a criminal defendant who can establish  innocence). That the aggrieved litigant invoked  its entitlement by counterclaim rather than by an  independent suit would not deprive the district  court of authority to supply the remedy.


5
Until 1875 federal courts did not award either  attorneys' fees or any other costs in cases that  had been dismissed for want of jurisdiction. The  reason lay in the common law, not the  Constitution, the Court explained in Mansfield  C.&L.M. Ry. v. Swan, 111 U.S. 379, 386-87 (1884).  In considering the power conferred on circuit  courts by the Act of March 3, 1875, 18 Stat. 470,  472, to award costs secured by a bond when  remanding a suit to state court, the Court  observed: "These provisions were manifestly  designed to avoid the application of the general  rule, which, in cases where the suit failed for  want of jurisdiction, denied the authority of the  court to award judgment against the losing party,  even for costs." Id. at 387. Mansfield applied  the new statute and held that costs may be  awarded even when the court to which the action  is removed lacks jurisdiction to decide the  merits. The law applied in Mansfield is still on  the books, now split into two and modified. One  part appears in 28 U.S.C. sec.1919:


6
Whenever any action or suit is dismissed in any  district court, the Court of International Trade,  or the Court of Federal Claims for want of  jurisdiction, such court may order the payment of  just costs.


7
The other survives as 28 U.S.C. sec.1447(c)


8
If at any time before final judgment it appears  that the district court lacks subject matter  jurisdiction, the case shall be remanded. An  order remanding the case may require payment of  just costs and any actual expenses, including  attorney fees, incurred as a result of the  removal.


9
We applied this statute in Garbie v.  DaimlerChrysler Corp., 211 F.3d 407 (7th Cir.  2000), stating that attorneys' fees should be  normal incidents of remands for lack of  jurisdiction; none of the parties suggested that  sec.1447(c) violates Article III, and such a  contention would have been untenable. Use of this  fee-shifting power has been uncontroversial. See,  e.g., Morgan Guaranty Trust Co. v. Republic of  Palau, 971 F.2d 917 (2d Cir. 1992); Mints v.  Educational Testing Service, 99 F.3d 1253 (3d  Cir. 1996); W.H. Avitts v. Amoco Production Co.,  111 F.3d 30 (5th Cir. 1997); Stallworth v.  Greater Cleveland RTA, 105 F.3d 252 (6th Cir.  1997).


10
Willy noted that statutes such as sec.sec. 1919  and 1447(c) permit awards of litigation expenses  in suits that federal courts are not authorized  to decide on the merits. Cooter & Gell held that  Fed. R. Civ. P. 11 permits such awards in cases  originally within the court's jurisdiction but  voluntarily dismissed by plaintiffs before  defendants seek fees. Then Willy generalized that  approach by holding that attorneys' fees may be  awarded under Rule 11 even if the case never came  within the district court's subject-matter  jurisdiction. The district court sought to  distinguish these decisions


11
[A] court's authority to award attorney's fees or  sanctions under Rule 11 is drawn not from the  Constitution's Article III jurisdictional  requirements, but rather congressional authority  under Article I, sec. 8, cl. 9 to establish laws  regulating the conduct of the courts. Willy, 503  U.S. at 136. The imposition of Rule 11 sanctions  therefore is a procedural matter that is not  restricted by Article III standing requirements.  Here, the procedural concerns regarding abuse of  the judicial system present in both Willy and  Cooter & Gell are notably absent. As such, the  Supreme Court's Rule 11 jurisprudence is not  germane.


12
This passage confuses two concepts--legislative  authority to create rights and remedies (located  in Article I), and adjudicative authority  (located in Article III). Article I conferred on  Congress authority to enact not only 28 U.S.C.  sec.sec. 1919 and 1447(c), but also the Rules  Enabling Act, 28 U.S.C. sec.sec. 2071-77, which  underpins Rule 11. That laws are enacted under  Article I does not justify dispensing with  standing requirements under Article III; courts  possess no more authority to issue advisory  opinions (or otherwise exceed their jurisdiction)  in "procedural matters" than in other matters.  Still, a motion seeking an award under any of  these rules or statutes is a case or controversy  that may be adjudicated to the extent the movant  has suffered at its adversary's hands an injury  may be redressed by a decision in its favor.  Steel Co., 523 U.S. at 102-04. Article III  therefore presents no obstacle to fee-shifting,  whether or not the fees were incurred in  proceedings that were cases or controversies  under Article III. To see this, consider costs  and attorneys' fees incurred in proceedings  before administrative agencies. That the agency  proceedings were not conducted under Article III  does not preclude awards of costs and fees to the  prevailing party, when legislation authorizes  litigation to recoup those outlays. See New York  Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)  (federal suit to recover legal expenses of state  administrative and judicial proceedings enforcing  Title VII of the Civil Rights Act of 1964); Brown  v. Griggsville Community Unit School District No.  4, 12 F.3d 681 (7th Cir. 1993) (federal suit to  recover attorneys' fees necessitated by state  administrative proceedings under the IDEA). Not  all statutes authorize claims of this kind; North  Carolina Department of Transportation v. Crest  Street Community Council, Inc., 479 U.S. 6, 13-15  (1986), held that 42 U.S.C. sec.1988, unlike  Title VII, does not support a suit whose sole  object is to recover legal expenses incurred in  nonjudicial proceedings. But this is a matter of  statutory meaning, not of power to adjudicate, a  distinction that the Supreme Court emphasized in  this very case. 523 U.S. at 89-90.


13
The district court drew comfort for its  position from decisions of other circuits. Ass'n  for Retarded Citizens v. Thorne, 68 F.3d 547, 552  (2d Cir. 1995) (relying on W.G. v. Senatore, 18  F.3d 60 (2d Cir. 1994)); Keene Corp. v. Cass, 908  F.2d 293, 298 (8th Cir. 1990); and Branson v.  Nott, 62 F.3d 287, 292-94 (9th Cir. 1995), hold  that defendants cannot obtain awards of fees  under sec.1988 if the district court lacked  subject-matter jurisdiction. Branson conceded  that "there are some circumstances in which  attorney's fees or costs may be imposed even  where the court proves to be without subject  matter jurisdiction" (62 F.3d at 293 n.10, citing  28 U.S.C. sec.sec. 1919 and 1447(c)) but did not  attempt to distinguish those provisions from  sec.1988. The other two decisions have even less  reasoning. Yet before Thorne, Branson, and Keene,  this circuit had reached a contrary conclusion.  See Charles v. Daley, 846 F.2d 1057 (7th Cir.  1988). In Charles the Supreme Court concluded  that a would-be appellant lacked standing,  knocking out jurisdiction over an appeal. Diamond  v. Charles, 476 U.S. 54 (1986). Then we ordered  the party who had caused the unnecessary  proceedings to pay the other side's costs and  attorneys' fees under sec.1988. Thorne, Branson,  Keene and the district court all neglected  Charles and its predecessors, including Sanders  v. CIR, 813 F.2d 859 (7th Cir. 1987), and Moten  v. Bricklayers International Union, 543 F.2d 224  (D.C. Cir. 1976). Sanders concluded that because  a court has jurisdiction to determine its own  jurisdiction, the Tax Court may award attorneys'  fees in a proceeding that it is not authorized to  decide on the merits; Moten reached a similar  conclusion under the fee-shifting provision in 42  U.S.C. sec.2000e-5(k). Although the district  court in Charles had jurisdiction, as the  district court here did not, the award of fees  dealt with proceedings on appeal, proceedings  that were not properly initiated because the  appellant lacked standing, and there was  accordingly no case presented for decision on the  merits. If an award of fees was within the  court's jurisdiction in Charles, it is equally  within the court's jurisdiction here. Nothing in  Thorne, Branson, Keene, or the district court's  opinion persuades us that Charles or Sanders  should be limited or overruled.


14
The final appellate decision on which the  district court relied does not support its  decision. Cliburn v. Police Jury Association of  Louisiana, Inc., 165 F.3d 315 (5th Cir. 1999),  held that the language of a particular fee-  shifting provision, properly construed, does not  authorize awards to defendants when the  underlying suit is outside federal jurisdiction.  The provision at issue reads


15
In any action under this subchapter (other than  an action described in paragraph (2)) by a  participant, beneficiary, or fiduciary, the court  in its discretion may allow a reasonable  attorney's fee and costs of action to either  party.


16
29 U.S.C. sec.1132(g)(1). The fifth circuit  concluded (165 F.3d at 316)


17
The district court's dismissal of Cliburn's  claims for lack of subject matter jurisdiction is  inconsistent with an award of fees and costs  under a statute which requires "any action under  this subchapter." In dismissing Cliburn's suit,  the district court determined that there was no  ERISA "action." Furthermore, given that ERISA is  inapplicable to Cliburn's claims, it is  inconsistent to conclude that either Cliburn or  the Police Jury Association is "a participant,  beneficiary, or fiduciary" eligible to invoke  sec.1132(g)(1). Given that the district court  lacked jurisdiction to hear Cliburn's claims  under ERISA, it logically follows that the court  lacked jurisdiction to entertain the Police Jury  Association's request for fees, costs, and  expenses under ERISA.


18
We have no quarrel with this conclusion, but it  does not shed light on the application of 42  U.S.C. sec.11046(f), which provides


19
The court, in issuing any final order in any  action brought pursuant to this section, may  award costs of litigation (including reasonable  attorney and expert witness fees) to the  prevailing or the substantially prevailing party  whenever the court determines such an award is  appropriate.


20
Does this cover The Steel Company's request? CBE  has not advanced an argument along Cliburn's  lines that The Steel Company's motion for fees  did not ask the district court for an award "in  issuing any final order in any action brought  pursuant to this section". CBE's action was  "brought pursuant to" sec.11046; it could not  have been brought under any other law, and the  suit's failure did not make it the less one  "brought pursuant to" sec.11046. See Steel Co.,  523 U.S. at 92-93. CBE does, however, make two  other statutory arguments against application of  sec.11046(f), the first of which focuses on the  words "prevailing party". Has The Steel Company  "prevailed" in this litigation?


21
Texas State Teachers Association v. Garland  Independent School District, 489 U.S. 782, 792  (1989), concluded that a plaintiff prevails for  purposes of 42 U.S.C. sec.1988 only if "at a  minimum . . . the plaintiff [can] point to a  resolution of the dispute which changes the legal  relationship between itself and the defendant."  Alternatively, the Court wrote, the "touchstone  of the prevailing party inquiry must be the  material alteration of the legal relationship of  the parties" (489 U.S. at 792-93). We may assume  that sec.11046(f) uses "prevailing party" in the  same way. If a plaintiff prevails by securing a  change in legal relations, then a defendant  prevails by securing an entitlement not to have  any change in legal relations. If a plaintiff  prevails by an award of damages or an injunction,  the defendant prevails by securing a declaration  that it need not pay damages or alter its  behavior. Defeating a plaintiff on the merits is  one way to obtain such assurance, but hardly the  only way. A declaration that the plaintiff and  others like it are not even entitled to sue  accomplishes the same end, and more. The Steel  Company could have "prevailed" by obtaining a  declaration that it need not pay a penalty for  this particular delay; instead it obtained from  the Supreme Court much more--a decision  foreclosing any private plaintiff from suing  about this delay or any other. This is the most  sweeping victory for which it could have hoped.


22
Sometimes victory on a jurisdictional point  merely prolongs litigation. A defendant may  persuade the court that the plaintiff has sued  too soon, or in the wrong court, or failed to  jump through a procedural hoop. Then the dispute  will continue later, or elsewhere, and it remains  to be seen who will prevail. Such a victory is  like persuading a judge to deny summary judgment,  a step that transfers decision to a jury but does  not end the litigation in defendant's favor and  therefore does not make it a prevailing party.  See Hanrahan v. Hampton, 446 U.S. 754 (1980); cf.  Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).  But the Supreme Court's decision in this case did  not just put off the evil day for The Steel  Company. It terminated this suit and barred all  others like it, for as long as the statute  retains its current language. It was a triumph in  the war, not just in a battle or even a campaign.


23
The alternative of limiting "prevailing" to  "prevailing on the merits" has nothing to  recommend it under either the text of the statute  or the considerations that lie behind fee-  shifting statutes. Although this approach has  found favor in some other circuits--see, e.g.,  Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172,  183 n.15 (3d Cir. 1999); Keene, 908 F.2d at 298;  Branson, 62 F.3d at 293 (contra Elks National  Foundation v. Weber, 942 F.2d 1480, 1485 (9th  Cir. 1991)); GHK Exploration Co. v. Tenneco Oil  Co., 857 F.2d 1388, 1391 (10th Cir. 1988)--this  court has long been of the view that success on  a fundamental jurisdictional point can make a  litigant a "prevailing party". Charles is again  our leading case.


24
Plaintiffs who had successfully challenged the  constitutionality of a state law sought to  recover attorneys' fees under sec.1988 not only  from governmental defendants but also from three  private intervenors. The district court directed  two of the intervenors to reimburse plaintiffs  for attorneys' fees they had incurred as  appellees before the Supreme Court. The Court  dismissed an appeal initiated by those  intervenors after concluding that they lacked  standing. In holding that appellees were  prevailing parties in the Supreme Court  proceedings, our panel observed that such parties  should not be forced to "absorb the costs of  defending lawsuits the appealing party lacked  proper standing to bring." 846 F.2d at 1073. We  see no reason in principle why a defendant that  gets everything it desires after three tiers of  litigation ending in a proclamation of "no  jurisdiction" should have less entitlement to  prevailing-party status than did the  equivalently-successful appellees in Charles, who  used a jurisdictional shield to retain what they  had won in the district court. Moten, which we  have already mentioned, also holds that a  litigant may become a prevailing party by  securing a jurisdictional victory of sufficient  scope. And of course since 1875 courts have  awarded costs to litigants that prevail on  jurisdictional grounds, and did so in this very  case--though under Fed. R. Civ. P. 54(d)(1) only  a "prevailing party" recovers costs. We hold that  when a dismissal for want of jurisdiction  forecloses the plaintiff's claim, the defendant  is the "prevailing party."


25
So much for CBE's first statutory argument. Its  second is that The Steel Company is not entitled  to fees, even as a "prevailing party," because  sec.11046(f) should be read to incorporate the  standard of Christiansburg Garment Co. v. EEOC,  434 U.S. 412 (1978). According to Christiansburg,  prevailing plaintiffs in civil-rights cases  presumptively recover attorneys' fees, but an  award should be made in favor of a prevailing  defendant only if the suit was frivolous,  unreasonable, or pursued in bad faith. CBE  contends that the same standard should be used in  environmental statutes, including sec.11046(f).  The statute at issue in Christiansburg, 42 U.S.C.  sec.2000e-5(k), provides that a court may "in its  discretion . . . allow the prevailing party . .  . a reasonable attorney's fee"; Christiansburg  prescribes how district judges must exercise that  discretion. Because sec.11046(f) also includes  language conferring discretion on the judge (the  "appropriate" phrase), CBE contends that  discretion should be exercised with the same  thumb on the scale in plaintiffs' favor.  Borrowing from Christiansburg is far from  inevitable. Fogerty v. Fantasy, Inc., 510 U.S.  517 (1994), holds that another fee-shifting  statute, one with language materially identical  to sec.2000e-5(k), must be applied to treat  prevailing plaintiffs and prevailing defendants  equally. Fogerty warns courts not to extend  Christiansburg mechanically. See Stomper v.  Amalgamated Transit Union, 27 F.3d 316 (7th Cir.  1994). But with respect to environmental laws the  Court itself did this before Fogerty, and its  approach controls here.


26
Pennsylvania v. Delaware Valley Citizens'  Council, 478 U.S. 546, 560 (1986), says that the  fee-shifting provisions of environmental statutes  that promote private enforcement should be  applied "in the same manner" as sec.1988, a  statute covered by Christiansburg's asymmetric  approach. Although the issue in Delaware Valley  was whether plaintiffs could recover for post-  judgment expenses of monitoring compliance with  a consent decree, the proposition that  environmental fee-shifting laws should be  governed by the same principles as fee-shifting  under sec.1988 formed the basis of the Court's  disposition and therefore cannot be treated as  dictum. The Steel Company has not identified any  feature in the language or structure of  sec.11046(f) that distinguishes it from the  statute in Delaware Valley. Indeed, in a follow-  up decision, Pennsylvania v. Delaware Valley  Citizens' Council, 483 U.S. 711 (1987), the Court  stated that its initial opinion had decided that  "in awarding attorney's fees under sec.304(d) [of  the Clean Air Act] the courts should follow the  principles and case law governing the award of  such fees under 42 U.S.C. sec.1988". 483 U.S. at  713 n. 1. A concurring opinion by Justice Thomas  in Fogerty, 510 U.S. at 538, cited this passage  as establishing that "we have construed similar  attorney's fee provisions to impose a 'dual'  standard of recovery". Until the Supreme Court  suggests otherwise, this court must read "in the  same manner" to mean just that. The Steel Company  therefore is entitled to recover its legal  expenses only if CBE's suit was frivolous,  groundless, pursued in bad faith, or maintained  after its baselessness became apparent.


27
Misconceived this suit was. Frivolous it was  not. A panel of this court held that CBE was  entitled to proceed. The Solicitor General  supported that decision before the Supreme Court.  A suit strong enough to survive an appeal cannot  be deemed frivolous, even if all nine Justices  thought it unavailing. We recognize that CBE did  not win in this court; all it secured was the  right to litigate on the merits. (The district  court had dismissed its suit for want of  jurisdiction.) No one suggests that CBE's claim  was frivolous on the merits, however, for The  Steel Company concededly filed reports after the  statutory deadlines. That's why The Steel Company  needed to pitch its defense on jurisdictional  grounds. Thus although we do not agree with the  district court's reasons, we agree with its  judgment: The Steel Company's request for fees  was properly denied.


28
One last matter. The parties have squabbled  over the content of The Steel Company's brief,  and a motions judge ordered that CBE's motion to  strike passages be taken with the case. The Steel  Company depicts itself as a small and struggling  manufacturer and asserts that CBE is a well-heeled  environmental juggernaut, while CBE asserts that  this is not supported by the record and that it  is David to The Steel Company's Goliath. This  dispute is irrelevant to our decision. We have no  wish to encourage parties to answer emotional  appeals with demands that we scrutinize those  passages for details. If CBE feared that an  exercise in statutory interpretation would be  subverted by misconceptions about the parties'  relative wealth, it was free to reply in its own  brief without asking us to take a red pencil to  its adversary's. Day v. Northern Indiana Public  Service Corp., 164 F.3d 382 (7th Cir. 1999).  Better still, litigants should give the judges  some credit for ability to resolve legal issues  in compliance with the oaths all of us have taken  to "administer justice without respect to  persons, and do equal right to the poor and to  the rich" (28 U.S.C. sec.453). The motion to  strike is denied.

Affirmed

29
RIPPLE, Circuit Judge, concurring.


30
This case  presents two intertwined, yet independent, issues  that we must address: 1) whether the district  court had jurisdiction to award attorneys' fees  to The Steel Company; and 2) whether The Steel  Company was entitled to attorneys' fees as a  "prevailing party" under the Emergency Planning  and Right-To-Know Act, 42 U.S.C. sec.sec. 11001-  50. My colleagues present a thoughtful analysis  of these two issues. We are not in disagreement  with respect to the result or with respect to the  basic analysis. I agree that the district court  had jurisdiction to award attorneys' fees, that  The Steel Company meets the requirements for a  prevailing party under the Act, but that fees are  not appropriate in the present action by virtue  of the rule set forth in Christiansburg Garment  Co. v. EEOC, 434 U.S. 412 (1978). I write  separately simply to emphasize how our decision  today squares with our earlier precedent.


31
In my view, our court's analysis in Szabo Food  Service v. Canteen Corporation, 823 F.2d 1073  (7th Cir. 1987), is especially helpful in  understanding the scope of today's holding and in  distinguishing it from other recent cases. In  Szabo Food Service, this court identified the  different meanings of "lack of jurisdiction." The  first category we identified was "the image of  subject matter jurisdiction." We stated:


32
If one citizen of Illinois files a suit based on  state law against another citizen of Illinois, a  federal court lacks jurisdiction over the subject  matter; so too if a plaintiff files a specious  civil rights suit, for an absurd complaint does  not even invoke federal question jurisdiction.  Yet a court has jurisdiction to determine its  jurisdiction and therefore may engage in all the  usual judicial acts, even though it has no power  to decide the case on the merits. It may  supervise discovery, hold a trial, and order the  payment of costs at the end. If the complaint is  indeed too silly to create subject matter  jurisdiction, attorneys' fees should be an  ordinary incident of the award of costs.


33
Id. at 1077-78 (citations omitted). The second  sense of "lack of jurisdiction" was when a court  "has lost [its] power to proceed, even though the  case is within the federal judicial power." Id.  at 1078. This second jurisdictional category most  often comes into play when a court has entered a  final judgment; in those circumstances, a court  loses its ability to consider the merits of the  action, but does "not also lose power to award  attorneys' fees that may be in order as a result  of what happened before the final decision." Id.  at 1078. Finally, we discussed "a third  'jurisdictional' analogy [that] rests on the case  or controversy requirement of Article III." Id.  "When the plaintiff packs up his portfolio and  goes home," we stated, "the case goes home with  him. . . . Courts occasionally sum up the effect  of the missing plaintiff by stating . . .: 'It  is as if the suit had never been brought.' A  court could not award attorneys' fees in a case  that had never begun . . . ." Id. (citations  omitted).


34
Our case law since Szabo Food Service has  adhered to these categories. For example, in  Board of Education v. Nathan R., 199 F.3d 377  (7th Cir.), cert. denied, 68 U.S.L.W. 3775 (Oct.  2, 2000), we held that we could not consider an  award of fees against a school corporation for  deprivation of special education services when  the action had been mooted by the student's  graduation from high school. In those  circumstances, "[b]ecause we would need to  consider the merits to determine whether the  Parents are prevailing parties, we agree[d] that  we [could] not decide whether the Parents would  be entitled to attorneys' fees from the  proceedings in the district court." Id. at 381.  In essence, we determined that a mooted case most  closely resembles the third Szabo Food Service  category; because we no longer had a controversy  to decide, we could not determine issues, such as  attorneys' fees, that were dependent upon our  having decided the underlying controversy. See  Lewis v. Continental Bank Corp., 494 U.S. 472,  480 (1990); see also Rhodes v. Stewart, 488 U.S.  1 (1988).


35
The situation in the present case is more  closely akin to the first Szabo Food Service  category. Here, there is no question that the  district court, this court, and the Supreme  Court, had the authority to receive briefs, to  hear argument, and to consider the issue of  whether there was federal jurisdiction to resolve  the merits of the underlying controversy; the  courts involved had jurisdiction to determine  their jurisdiction. From the authority to  determine its jurisdiction necessarily flows the  power of the court to award attorneys' fees based  on the actions properly before it. Consequently,  the district court had the authority to award  fees arising from the actions of the parties in  the course of resolving the jurisdictional issue.  As my colleagues point out, this court's decision  in Charles v. Daley, 846 F.2d 1057 (7th Cir.  1988), points the way.


36
The question remains, however, whether  attorneys' fees are available to The Steel  Company. This inquiry requires that we decide  whether it has prevailed for purposes of the Act.  With respect to this issue, as my colleagues  point out, the decision of the Supreme Court in  Texas State Teachers Association v. Garland  Independent School District, 489 U.S. 782 (1989),  is instructive. In that case the Court addressed  the issue of when a plaintiff might be considered  a "prevailing party" for purposes of 42 U.S.C.  sec. 1988. The Court stated that "[i]f the  plaintiff has succeeded on 'any significant issue  in litigation which achieve[d] some of the  benefit the parties sought in bringing suit,' the  plaintiff has crossed the threshold to a fee  award of some kind." Id. at 791-92; see also  Hewitt v. Helms, 482 U.S. 755 (1987). Here, CBE  brought suit to collect fees from The Steel  Company for failure to make required disclosures  under the Act. The Steel Company, for its part,  sought to prevent CBE from collecting those fees;  one of the bases upon which it defended the  action was to challenge CBE's standing to bring  the action. The Supreme Court agreed with The  Steel Company that CBE lacked standing; its  decision therefore foreclosed CBE's recovery of  fees. In the words of the Supreme Court, The  Steel Company prevailed on a "significant issue  in litigation"--CBE's standing, which achieved  for The Steel Company the only benefit that it  could derive in defending the action.  Consequently, The Steel Company is a prevailing  party for purposes of the Act.


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As my colleagues hold, however, our analysis  does not end here. I agree with my colleagues  that sec. 11046(f) incorporates the standard of  Christiansburg Garment Co. v. EEOC, 434 U.S. 412  (1978), and that standard precludes The Steel  Company from recovering in the present action.

