Summary
In this published Ninth Circuit order, the court addressed the timeliness of a motion for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). The court held that a petitioner who obtains a favorable immigration ruling is a "prevailing party" for EAJA purposes even before the judgment becomes final upon expiration of the certiorari period, and that the 120-day filing clock runs from the date of the disposition, not from the certiorari deadline. The court also ruled that the government is not entitled to an extension of time to respond to a fee motion based solely on the certiorari deadline unless it indicates it is actually contemplating seeking certiorari.
Topics
Practice areas
Questions Presented
- Whether a motion for attorney's fees under the Equal Access to Justice Act is premature before the expiration of the time to seek certiorari.
- Whether the government is entitled to an extension of time to respond to an attorney's fees motion based on the certiorari deadline.
Holdings
- A motion for attorney's fees under the EAJA is not premature; the 120-day clock for filing fees runs from the disposition, not from the expiration of the certiorari deadline.
Key quotations
“Lizardi’s motion for attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B), is not premature.” (2)
“To receive an extension of time to respond to an attorney’s fees motion based on the deadline for seeking certiorari, the government should indicate that it is actually contemplating filing a petition for a writ of certiorari.” (2)
Factual background
Petitioner Benjamin Lizardi sought review of a Board of Immigration Appeals decision. After the court issued a disposition, Lizardi moved for attorney's fees under the Equal Access to Justice Act. The government moved to stay proceedings and for an extension of time to respond, arguing the fee motion was premature because judgment was not final until the certiorari deadline passed.
Procedural history
Petitioner sought review of a Board of Immigration Appeals decision. After the court issued a disposition, Lizardi moved for attorney's fees under the EAJA. The government moved to stay proceedings and for an extension of time to respond, arguing the fee motion was premature because judgment was not final until the time to seek certiorari expired.