Auke Bay Concerned Citizen's Advisory Council v. Marsh

No. 84-3812 (9th Cir. March 12, 1985)

The court holds that the plaintiff may not collect attorneys fees under the Equal Access to Justice Act (EAJA) because plaintiff filed its motion for fees prematurely, after the court issued a permanent injunction but before it entered final judgment. Construing EAJA as a narrow waiver of sovereign immunity, the court rules that EAJA motions may only be filed after and within 30 days of final judgment. Although treating the plaintiff's premature filing as timely would not surprise or prejudice the government, the court declines to do so.

Counsel for Appellant
Richard M. Bornham
Findley & Bornham
Suite 200, 2d St., Juneau AK 99801
(907) 586-3811

Counsel for Appellees
Albert M. Ferlo, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Before Wright, Tang, and Crocker^*, JJ.

[15 ELR 20348]

Tang, J.:

Auke Bay Concerned Citizen's Advisory Council (Auke Bay) appeals judgment from the district court denying its motion for an award of attorney fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982). Because we agree with the district court that Auke Bay filed its motion prematurely, we affirm.

FACTS

Appellant filed a complaint in district court in March, 1982 requesting that the construction of a breakwater and marina project in Auke Bay, Alaska be enjoined prior to the preparation of an Environmental Impact Statement (EIS). By Memorandum and Order filed September 7, 1982, the court granted a permanent injunction prohibiting construction of the project until an EIS had been properly prepared.

On December 20, 1982, Auke Bay filed a motion for an award of attorney fees and expenses. The issues were briefed by all parties and Auke Bay's reply memorandum filed on January 24, 1983.

On August 11, 1983, formal judgment was entered, in accordance with Rule 58, Fed. R. Civ. P. On November 22, 1983, the district court denied Auke Bay's motion for attorney fees as premature, Auke Bay having filed its motion before entry of final judgment. The court noted that but for the untimely filing, fees would have been awarded.

DISCUSSION

The Equal Access to Justice Act permits an award of reasonable attorney fees and expenses to a party who prevails in a civil action against the United States, unless the government's position was substantially justified, and if the party meets certain financial requirements. 28 U.S.C. § 2412(d)(1)(A), (1)(B), and (2)(B). The EAJA requires that a party make application for attorney fees "within thirty days of final judgment." 28 U.S.C. § 2412(d)(1)(B).

"Final judgment" is defined by its common usage in contexts such as Federal Rule of Civil Procedure 54. McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir. 1983). Therefore, for purposes of applying for attorney fees under the EAJA, the district court entered its final judgment on August 11, 1983,¹ approximately eight months after Auke Bay moved for an award.

Appellee Marsh contends that, as a waiver of sovereign immunity, the EAJA's requirements to obtain attorney fees should be strictly construed. Appellee contends that the "within thirty days of final judgment" language should be interpreted to require a party to apply for attorney fees after entry and within thirty days of final judgment. Therefore, Marsh argues, Auke Bay's motion for attorney fees was untimely.

Auke Bay argues that its motion should not have been dismissed as premature, but should have been considered as "pending" before the district court. Auke Bay contends that to require renewal of its motion for an award of attorney fees after entry of final judgment elevates form over substance, and defeats the remedial purpose behind the EAJA.

In construing a provision allowing fee awards against the government, care must be taken not to enlarge the waiver of immunity beyond what a fair reading of the statute requires. Lauritzen v. Lehman, 736 F.2d 550, 555-56 (9th Cir. 1984) (interpreting section 2412(b) of the EAJA). Furthermore, the thirty day limitation period under the EAJA for submitting fee applications is jurisdictional. Cf. Columbia Manufacturing Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir. 1983). We hold that a fair reading of the thirty day limitation provision indicates that motions are to be filed after entry and within thirty days of final judgment. Therefore, Auke Bay's motion was filed prematurely.

Although the United States would suffer no prejudice or be unfairly surprised, cf. McQuiston, 707 F.2d at 1084, the motion for attorney fees will not be treated as if filed after the entry of judgment. See Firchau v. Diamond National Corp., 345 F.2d 269, 271 (9th Cir. 1965) (notice of appeal filed after order dismissing complaint and before entry of final judgment regarded filed after final judgment, since court is liberal in accepting notice of appeal and no substantial rights are affected). Canons of statutory construction for waivers of sovereign immunity dictate a strict interpretation of the thirty-day provision and Auke Bay's technical defect in filing prevents its recovery.

The judgment of the distric court is

AFFIRMED.

* The Honorable Myron Donovan Crocker, United States District Judge for the Eastern District of California, sitting by designation.

1. In the district court's Memorandum and Order, it stated that final judgment was entered on August 9, 1983. However, the Civil Docket Sheet indicates judgment was entered August 11, 1983.