Al-Harbi v. I.N.S.
Decision Date | 25 March 2002 |
Docket Number | No. 98-70828.,98-70828. |
Parties | Naseem Salman AL-HARBI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
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Before: KLEINFELD, TASHIMA and BERZON, Circuit Judges.
In 1996 Naseem Salman Al-Harbi was brought by American forces to United States territory from northern Iraq, a refuge of Iraqi insurgents hostile to the reign of Saddam Hussein, as part of a large evacuation effort led by United States government agencies. On the merits, we previously granted Al-Harbi's Petition for Review of an Order of the Board of Immigration Appeals. See Al-Harbi v. INS, 242 F.3d 882 (9th Cir.2001). We must now decide whether Al-Harbi's request for attorneys' fees was timely filed, and if so, whether he is entitled to fees. We conclude that the request was timely, but that no fees should be awarded.
In our decision filed on March 9, 2001, Al-Harbi prevailed on his Petition for Review.1 The government had until April 23, 2001 to file a petition for panel rehearing or for rehearing en banc, but the government declined to file either request. The mandate was issued seven days later, on April 30, 2001. The 90 days in which the government could have appealed to the Supreme Court for a writ of certiorari ran on June 7, 2001. See 28 U.S.C. § 2101(c) ( ). Al-Harbi filed his request for attorneys' fees on July 6, 2001.
Circuit Rule 39-1.6 states that "a request for attorneys' fees, including a request for attorneys' fees and expenses in administrative agency adjudications under 28 U.S.C. 2412(d)(3), shall be filed ... within 14 days from the expiration of the period within which a petition for rehearing or suggestion for rehearing en banc may be filed...." 9th Cir.R. 39-1.6. The Rule is qualified, however, by the phrase "[a]bsent a statutory provision to the contrary."
In Bianchi v. Perry, 154 F.3d 1023, 1025 (9th Cir.1998), we recognized that the Equal Access to Justice Act ("EAJA") contains a statutory provision to the contrary. Under the EAJA, applications for awards of attorneys' fees must be filed "within 30 days of final judgment." 28 U.S.C. § 2412(d)(1)(B). Thus, to the extent that Ninth Circuit Rule 39-1.6 is inconsistent with the EAJA, the Circuit Rule is inapplicable, and the EAJA controls.
The dispute in this case centers on when the 30 day filing period under the EAJA begins to run. Although "[t]raditionally, a `final judgment' is one that is final and appealable," Melkonyan v. Sullivan, 501 U.S. 89, 95, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (citing Fed.R.Civ.P. 54(a) and Sullivan v. Finkelstein, 496 U.S. 617, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990)), Congress amended the EAJA in 1985 to define "final judgment" as "a judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G) (emphasis added).
We have previously acknowledged that under this statutory language, there is more than one plausible interpretation of "final judgment." See Bianchi, 154 F.3d at 1024. Bianchi noted that we have said in dictum, outside of the EAJA context, that a federal appellate judgment is final when the mandate is spread in the district court. Id. (citing Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1286 n. 2 (9th Cir.1997)). Bianchi recognized as well that both the Seventh Circuit in Kolman v. Shalala, 39 F.3d 173 (7th Cir.1994), and the Eleventh Circuit in Myers v. Sullivan, 916 F.2d 659 (11th Cir.1990), had indicated that for EAJA purposes, a judgment is not final until the time for filing a petition for writ of certiorari has expired. See Bianchi, 154 F.3d at 1024. Because the petition before it would have been timely either way, the Bianchi court left open the question of whether "a decision should be treated as `final and not appealable' for purposes of the Equal Access to Justice Act when the mandate issues or when the government's time to petition for certiorari expires." Id. at 1025. Here, though, the determination of that question is essential to deciding whether or not the petition was timely filed, as it is undisputed that Al-Harbi filed his fee application more than 30 days after the mandate issued but less than 30 days after the time to petition for certiorari had expired.2
Every other circuit court to consider the issue has concluded that the 30-day period during which an applicant can file for EAJA fees begins to run only after the 90-day time for filing a petition for writ of certiorari with the Supreme Court has expired. See Singleton v. Apfel, 231 F.3d 853, 855 n. 4 (11th Cir.2000) ( )(citing Myers, 916 F.2d at 671); Kolman, 39 F.3d at 175 ( ); Federal Election Comm'n v. Political Contributions Data, Inc., 995 F.2d 383, 385-86 (2d Cir.1993) ( ); Taylor v. United States, 749 F.2d 171, 175 (3d Cir.1984) (). See also Youngdale & Sons Constr. Co. v. United States, 31 Fed. Cl. 167, 175 (1994) ( ).
Although the government argues that the discretionary nature of certiorari jurisdiction means that the judgment is not "appealable" after the circuit court's decision, implicit in the above decisions is a rejection of that contention. See, e.g., Political Contributions Data, Inc., 995 F.2d at 385-86 ( ); Taylor, 749 F.2d at 174-75 ( ). We reject the contention as well.
The "appealable" language is at least ambiguous as applied to the possibility of seeking Supreme Court review: It could mean subject to an appeal of right, or it could mean subject to review by a higher court, whether of right or not. The legislative history and our flexible approach to interpreting the filing requirements of the EAJA support the latter interpretation. See Defenders of Wildlife v. Norton, 258 F.3d 1136, 1142 n. 8 (9th Cir.2001) () (alteration in original) (quoting United States v. R.L.C., 503 U.S. 291, 298, 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992)).
"[W]hen Congress re-enacted the EAJA in 1985, it sought to clarify its intent by defining final judgment in a manner that would avoid the `overly technical' approach previously taken by some courts." Papazian v. Bowen, 856 F.2d 1455, 1456 (9th Cir.1988). See also H.R.Rep. No. 120, 99th Cong., 1st Sess. 18 n. 26, reprinted in 1985 U.S.C.C.A.N. 132, 146 n. 26 (); Myers, 916 F.2d at 668 ( ). Additionally, although not controlling, it is of some significance that one Committee Report addressed precisely the question before us and concluded that "appealable" included discretionary appeals. The House Report states that H.R.Rep. No. 120, 99th Cong., 1st Sess. 18 n. 26, reprinted in 1985 U.S.C.C.A.N. 132, 146 n. 26. Interpreting the timeliness provision as the other circuit courts have done, moreover, avoids the possibility that multiple fee applications will be necessary, a weighty consideration given that EAJA fees are intended specifically for individuals with limited resources. See Myers, 916 F.2d at 667.
For all these reasons, we agree with the other circuits and "construe[] the Act's definition of `final judgment' as designating the date on which a party's case has met its final demise, such that there is no longer any possibility that the district court's judgment is open to attack." Id. at 669 (internal quotations and citation omitted).
Because Al-Harbi's fee request was timely, we turn to the merits of that request.
Al-Harbi is not entitled to an award of attorneys' fees under the EAJA in the present circumstances, we conclude. The EAJA allows an award of attorneys' fees only if the court finds that the government was not "substantially justified," or if "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). "Substantial justification" in this context means "justification to a degree that could satisfy a reasonable person," Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). "In making a determination of substantial...
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