Operating Engineers Local Union No. 3 of the Internationalunion of Operating Engineers, Afl-cio, Plaintiff-appellant, v. George Bohn, Responsible Contracting Officer and Divisionadministrator of the United States Department Oftransportation, Federal Highway Administration, Neilgoldschmidt, United States Secretary of Transportation, C.v.anderson, Responsible Contracting Officer and Assistantadministrator of the Utah Department of Transportation, W.w.clyde Company, Defendants-appellees, 737 F.2d 860 (10th Cir. 1984)

Plaintiff argues at length on appeal that the defendants violated the Davis-Bacon Act by refusing to modify the prevailing wage rates in the bid package. However, it is unclear what relief plaintiff seeks even if we were to reach the merits of this claim and find that defendants did indeed violate the Davis-Bacon Act. As the trial court found, and plaintiff's counsel admitted, defendants' concession to modify the contract to include the correct wage rate afforded plaintiff all of the substantive relief sought. Record, vol. 3, at 833. Thus, by the time defendants' moved for summary judgment, plaintiff's substantive claims were moot. Id.

Plaintiff contends that the district court erred in granting summary judgment on the basis of mootness. Apparently, plaintiff is arguing that the granting of summary judgment defeated its claim for attorney's fees. However, the trial court ruled only that the substantive claims were moot and specifically stated that granting summary judgment did not affect plaintiff's status as a prevailing party for purposes of attorney's fee award statutes. See Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2574, 65 L. Ed. 2d 653 (1980) (attorney's fee award not conditioned on a full litigation of the issues or on a judicial determination that plaintiff's rights have been violated). Plaintiff cites County of Los Angeles v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979); Gurule v. Wilson, 635 F.2d 782 (10th Cir. 1980); and Davis v. Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978), to support the position that the case is not moot because the plaintiff still had an interest in the outcome of the attorney's fee issue. This argument is not persuasive however, since the district court held only the substantive issues moot and then proceeded to carefully consider the merits of the attorney's fee issue.

The district court did not abuse its discretion in denying plaintiff's request for attorney's fees under 42 U.S.C. § 1988. See Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 423-24, 98 S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978). The court denied plaintiff's section 1988 attorney's fee claim because the court found that plaintiff did not meet the two-part catalyst test of Nadeau v. Helgemoe, 581 F.2d 275, 280-81 (1st Cir. 1978). Under this test, a plaintiff who brings an action alleging a civil rights violation, but who does not receive a judgment on the merits is still a prevailing party for section 1988 purposes if he makes two showings. First, plaintiff's lawsuit must be causally linked to the securing of the relief obtained. Second, the defendant's conduct in response to the lawsuit must be required by law. Id. at 281.

The trial court found that although the plaintiff's lawsuit caused them to receive all of the relief sought, the causation prong of the Nadeau test was not met because the defendants capitulated before the plaintiff ever raised its 1983 claim--i.e., there was no causal connection between the section 1983 claim and the plaintiff receiving the relief sought. The court also found that plaintiff failed to meet the second prong of the Nadeau test. Defendants were not confronted with the section 1983 claim at the time they voluntarily complied with plaintiff's request and had virtually no chance of attacking the validity of the claim on the merits because all of the relief sought by plaintiff had already been conceded. The court went on to discuss the problem of whether plaintiff had any right to bring a section 1983 action for violation of the Davis-Bacon Act, in light of the Supreme Court's refusal to imply a private right to action under the Act. See Universities Research Association v. Coutu, 450 U.S. 754, 772, 101 S. Ct. 1451, 1462, 67 L. Ed. 2d 662 (1980).

We hold that the proper time for determining whether a party is entitled to attorney's fees under section 1988 is when all of the substantive relief sought by the plaintiff has been achieved or when the case has been fully adjudicated on the merits. Here, when the substantive relief was achieved, this case was postured as a Davis-Bacon Act case. No civil rights violation was even alleged. We find no persuasive reason for opening the door to allow a plaintiff who did not initially plead or argue a civil rights violation to subsequently force what would essentially be an adjudication on the merits after the action has become moot. Thus, in light of the trial court's careful analysis, we find no abuse of discretion and affirm the denial of attorney's fees under section 1988.

The district court also properly denied plaintiff's request for attorney's fees against the federal defendants under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1) (A).¹  The court found that the plaintiff was a prevailing party for purposes of this section and was therefore entitled to attorney's fees "unless the position of the United States was substantially justified" or "special circumstances" existed. The court held that the term "position" refers to the government's conduct during the lawsuit, and not to the government's pre-litigation position. Based upon this interpretation, the court found that the government's position was substantially justified and, therefore, plaintiff was not entitled to attorney's fees under the EAJA. Further, the court found that there were no special circumstances involved which would give rise to an award of attorney's fees under the EAJA.

Plaintiff challenges the district court's interpretation of the term "position." Plaintiff contends that it is the government's conduct giving rise to the lawsuit, not its conduct during litigation, which is dispositive to an analysis of section 2412(d) (1) (A). We settled that argument in United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 (10th Cir. 1984). We there held that the position of the United States, for purposes of the EAJA, means the arguments relied upon by the government in litigation, rather than the governmental behavior that precipitated the suit. Id. at 1487. Upon institution of the lawsuit, defendants modified the wage schedule. The trial court did not err in finding that the government's action exemplified the behavior the EAJA seeks to encourage. Record, vol. 3, at 847. Thus, the government's position was substantially justified. Further, we do not find evidence in the record sufficient to contradict the trial court's determination that the defendants did not act in bad faith.

AFFIRMED.