Then, on a motion from the government to reconsider, the district court reversed its ruling and denied summary judgment to Hallmark. In its second summary judgment order, the district court determined that, among other things, there were genuine factual disputes concerning the attractiveness of Area B as a habitat for migratory birds and the actual length of time for which Area B was inundated during the growing season. At this point, Hallmark's attorneys filed a motion with the court for leave to withdraw because Hallmark was unable to pay its attorney's fees, but the trial court denied this motion. Hallmark's attorneys went forward to ably represent Hallmark at trial, and the district court ruled in favor of Hallmark. The district court denied Hallmark's motion, finding that the government's position in the litigation had been substantially justified.
Hallmark now appeals.
We review the district court's decision in this matter for an abuse of discretion. 28 U.S.C. sec. It is uncontested that Hallmark was the prevailing party and that the fee application was timely filed. Therefore, the only question for us on appeal is whether the district court abused its discretion in finding that the government's position was substantially justified. However, in this case, it is not apparent that the district court applied the proper legal standard to arrive at its conclusion regarding the justification of the government's position.