EAJA Timeliness and Prematurity

Every once in a while, a court will enter an order making a party the prevailing party in litigation involving the United States.  The court sometimes does not formally enter judgment.  Because of the 60 days in which to appeal a judgment of a District Court or 90 days in which to seek certiorari from a decision of the Court of Appeals, the intrepid attorneys for the prevailing party may wish to file before the entry of formal judgment or before the expiration of the time in which to appeal.

The Commissioner will complain that the application is premature.  Judgment has not been entered or the time in which to appeal has not expired.  These are spurious arguments designed to extend litigation, creates satellite litigation, and do not assist the Court in management of its docket.  A recent decision from the Court of International Trade, in Former Employee of Marlin Firearms, Co. v. United States Secretary of Labor, says the following about prematurity:

Regardless, the plaintiff did not make his application prematurely. Section 2412(d)(1)(B) requires “[a] party seeking an award of fees and other expenses” to submit its application “within thirty days of final judgment in the action.”  Legislative history and the weight of case law correctly interprets this language as creating only a final deadline for filing, rather than also establishing a time before which applications are premature, i.e., the entry of final judgment. See Equal Access to Justice Act, Extension and Amendment, H.R. Rep. 99-120(I), at 18 n.26 (1985), as reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 (stating that “fee petitions [under the EAJA] may be filed before a ‘final judgment,’” and disavowing “the overly technical approach” of a case holding that applications filed prior to final judgment are premature) (emphasis added); see, e.g., Haitian Refugee Ctr. v. Meese, III, 791 F.2d 1489, 1495 (11th Cir. 1986) (“[S]ince the district court has not entered final judgment, since the thirty-day limit has not begun, and sincethe time to appeal has not run, the application for attorneys’ fees was timely filed.”), vacated on other grounds, 804 F.2d 1573 (11th Cir. 1986); Gonzalez v. United States, 44 Fed. Cl. 764, 767 (1999) (“Congress did not intend to proscribe EAJApetitions filed prior to the start of the 30-daylimitations period.”). But see Perez v. Guardian Roofing, No. 3:15-cv-05623-RJB, 2016 WL898545, at *3 (W.D. Wash. Mar. 9, 2016) (“[Defendant’s] EAJA Counterclaim is premature,because EAJA contemplates that the submission of an EAJA application follows, not precedes, final judgment. This interpretation is supported by use of the word ‘within,’ . . . versus use of words such as ‘before’ or ‘prior to[.]’”). Because the plaintiff did not file the application prematurely, and because, regardless, Labor has waived its objection to the application’s timing,the court will consider the merits of the plaintiff’s motion.

 The prevailing party needs to prevail, not have judgment entered.  Animal Lovers v. Carlucci, 867 F.2d 1224, 1225 (9th Cir. 1989); Marks v. Clarke, 102 F.3d 1012, 1034 (9th Cir. 1996).  The whole idea of a premature EAJA petition is wrong.  Labor was wrong to wrong to raise it in Marlin Firearms but right to waive it.