In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2709

Citizens for a Better Environment,

Plaintiff-Appellee,

v.

The Steel Company, also known as
Chicago Steel and Pickling Company,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 4534--George M. Marovich, Judge.


Argued February 9, 2000--Decided October 17, 2000



  Before Bauer, Easterbrook, and Ripple, Circuit Judges.

  Easterbrook, Circuit Judge. 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.).

  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.

  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.

  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.
  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:


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.

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

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.

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).

  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:

[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.

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.

  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.

  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:

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.

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

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.

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:

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.

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?

  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.

  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.

  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.
  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."

  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.

  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.
  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.

  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




  RIPPLE, Circuit Judge, concurring. 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.

  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:

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.

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).

  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).

  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.

  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.

  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.
