Arulampalam v. Ashcroft

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SASETHARAN ARULAMPALAM, 

Petitioner, No. 02-71267

v.

 Agency No.

A79-144-413

ALBERTO GONZALES,* Attorney

General, ORDER

Respondent.



Filed March 1, 2005

Before: Harry Pregerson, Ferdinand F. Fernandez, and

Marsha S. Berzon, Circuit Judges.

Order;

Concurrence by Judge Fernandez

COUNSEL

Judith L. Wood and Jesse A. Moorman, Law Office of Judith

L. Wood, Los Angeles, California, for the petitioner.

Francis W. Fraser, Department of Justice, Civil Division,

Office of Immigration Litigation, Washington, D.C., for the

respondent.

*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as

Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2).

2345

2346 ARULAMPALAM v. GONZALES

ORDER

When this case was last before us, petitioner Sasetharan

Arulampalam’s petition for review was granted and the matter

was remanded to the Board of Immigration Appeals for fur-

ther proceedings. See Arulampalam v. Ashcroft, 353 F.3d 679

(9th Cir. 2003). On April 6, 2004, we denied respondent’s

petition for rehearing. On August 9, 2004, Arulampalam filed

a motion for attorney’s fees. Concerned that the motion was

untimely, we requested briefing from the parties on the issue

of timeliness. We now conclude that Arulampalam’s motion,

to be timely, should have been filed, rather than mailed, on or

before August 4, 2004, 120 days after our denial of the peti-

tion for rehearing.

DISCUSSION

The relevant provision of the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d)(1)(B) states that: “A party

seeking an award of fees and other expenses shall, within

thirty days of final judgment in the action, submit to the court

an application for fees and other expenses . . . .” We have held

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,” Al-Harbi v. INS, 284 F.3d 1080, 1083-84 (9th Cir.

2002); that “EAJA’s 120-day clock begins to tick when our

judgment or order is issued,” Zheng v. Ashcroft, 383 F.3d 919,

921 (9th Cir. 2004) (order); and that “[b]ecause filing a peti-

tion for rehearing or a petition for rehearing en banc tolls the

time period for filing a petition for a writ of certiorari, see

Sup. Ct. R. 13(3), it follows that the EAJA clock [is] similarly

tolled.” Id. at 921 n.3.

In this case, our final judgment was rendered on July 5,

2004, ninety days after we denied the petition for rehearing.

The EAJA deadline in Arulampalam’s case was therefore 30

days after July 5, 2004, which was August 4, 2004.

ARULAMPALAM v. GONZALES 2347

Arulampalam submits that because his motion was mailed

on August 4, 2004, it qualifies as having been “submit[ted]”

for the purposes of 28 U.S.C. § 2412(d)(1)(B). The Supreme

Court and the Ninth Circuit have, however, both paraphrased

EAJA’s submission requirement to mean that the application

must be filed within the thirty-day period. See Scarborough v.

Principi, 541 U.S. 401, 124 S. Ct. 1856, 1860 (2004)

(“Section 2412(d)(1)(B) specifies as the time for filing the

application ‘within thirty days of final judgment in the

action.’ ”); Al-Harbi, 284 F.3d at 1082 (“Under the EAJA,

applications for awards of attorneys’ fees must be filed

‘within 30 days of final judgment.’ ”). Under the Federal

Rules of Appellate Procedure, filing, except for a brief or

appendix, “is not timely unless the clerk receives the papers

within the time fixed for filing.” Fed. R. App. P. 25(a)(2)(A).

Were we writing on a blank slate, it might be reasonable to

interpret “submit to the court” to mean “send to the court,”

rather than “file.” Cf. United States v. Ray, 375 F.3d 980, 990

n.11 (9th Cir. 2004) (“The word ‘submit’ means ‘to send or

commit for consideration, study, or decision . . . to present or

make available for use or study,’ WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2277 (1993), or ‘to present or pro-

pose to another for review, consideration or decision,’

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, TENTH EDITION

1169 (1993).”).

We are not presented with a tabula rasa, however, for inter-

preting 28 U.S.C. § 2412(d)(1)(B). We have held that “the

thirty day limitation period under the EAJA for submitting fee

applications . . . should be narrowly construed,” as it is a

waiver of sovereign immunity. See Auke Bay Concerned Citi-

zen’s Advisory Council v. Marsh, 779 F.2d 1391, 1392-93

(9th Cir. 1986).

Moreover, our precedents have upheld a National Labor

Relations Board interpretation of a similarly-worded attor-

2348 ARULAMPALAM v. GONZALES

ney’s fees provision contained in 5 U.S.C. § 504(a)(2),1 which

is part of EAJA. This provision states in relevant part that: “A

party seeking an award of fees and other expenses shall,

within thirty days of a final disposition in the adversary adju-

dication, submit to the agency an application . . . .” The

NLRB regulation construing the provision reads:

An application may be filed after entry of the final

order establishing that the applicant has prevailed in

an adversary adjudication proceeding or in a signifi-

cant and discrete substantive portion of that proceed-

ing, but in no case later than 30 days after the entry

of the Board’s final order in that proceeding. The

application for an award shall be filed in triplicate

with the Board in Washington, DC . . . .

29 C.F.R. § 102.148(a). The statutory word “submit” in this

context was construed as “file” by the NLRB. See 46 Fed.

Reg. 48086, 48086 (Sept. 30, 1981).

1

That statute provides:

A party seeking an award of fees and other expenses shall,

within thirty days of a final disposition in the adversary adjudica-

tion, submit to the agency an application which shows that the

party is a prevailing party and is eligible to receive an award

under this section, and the amount sought, including an itemized

statement from any attorney, agent, or expert witness represent-

ing or appearing in behalf of the party stating the actual time

expended and the rate at which fees and other expenses were

computed. The party shall also allege that the position of the

agency was not substantially justified. When the United States

appeals the underlying merits of an adversary adjudication, no

decision on an application for fees and other expenses in connec-

tion with that adversary adjudication shall be made under this

section until a final and unreviewable decision is rendered by the

court on the appeal or until the underlying merits of the case have

been finally determined pursuant to the appeal.

5 U.S.C. § 504(a)(2).

ARULAMPALAM v. GONZALES 2349

In Columbia Mfg. Corp. v. NLRB, 715 F.2d 1409 (9th Cir.

1983) (per curiam), we concluded, in a case where a fees

application was filed thirty-three days after the agency’s final

disposition, that “the NLRB’s strict construction of the thirty-

day time limit was correct.” Id. at 1410. We later dismissed

a due process challenge to the NLRB’s interpretation of “sub-

mission” in Lord Jim’s v. NLRB, 772 F.2d 1446 (9th Cir.

1985), noting that:

The EAJA requires only that a party seeking attor-

ney’s fees “submit” an application within thirty days,

5 U.S.C. § 504(a)(2); neither it nor the legislative

history defines the term. The NLRB, under 29

C.F.R. § 102.148(a) (1984), interpreted “submit” to

mean “file,” which under NLRB regulations . . .

means that the application “must be received by the

Board. . . .” The Eighth Circuit in Monark Boat [Co.

v. NLRB, 708 F.2d 1322, 1328-29 (8th Cir. 1983)],

upheld this interpretation as consistent with cases

holding that a document is filed in a court only when

it is received, not when it is mailed.

Id. at 1449.2

2

Lord Jim’s noted that contemporary Federal Communications Com-

missions (“FCC”) and Occupational Safety & Health Administration

(“OSHA”) regulations applying 5 U.S.C. § 504(a)(2) were to the contrary.

772 F.2d at 1449. Both agencies appear subsequently to have amended

their regulations to require filing, rather than mailing, of fee applications.

With respect to the FCC, see 47 C.F.R. § 1.7 (“[P]leadings and other docu-

ments are considered to be filed with the [FCC] upon their receipt at the

location designated by the Commission.”); Id. § 1.1514(a) (“An applica-

tion [under EAJA] may be filed whenever the applicant has prevailed in

the proceeding or in a significant and discrete substantive portion of the

proceeding, or when the demand of the [FCC] is substantially in excess

of the decision in the proceeding, but in no case later than 30 days after

the Commission’s final disposition of the proceeding.”); Id. § 1.1521

(“Any application for an award or other pleading relating to an application

shall be filed and served on all parties to the proceeding in the same man-

2350 ARULAMPALAM v. GONZALES

In general, “[t]here is a long established set of reasons for

rejecting mailbox rules and requiring receipt for critical

papers where dates are jurisdictional.” Sheviakov v. INS, 237

F.3d 1144, 1147 (9th Cir. 2001).

[A] rule other than one based on receipt by the clerk

would result in confusion and controversies; and we

would have a clash of oral testimonies with the evi-

dence in the hands of the party who claimed to have

done something on time. It would be undesirable to

have the date of filing be determined by an evidenti-

ary hearing on when lawyers and their employees

actually deposited papers in the mail.

Id. (citation and internal quotation marks omitted). While the

EAJA provision at issue is not, strictly speaking, jurisdic-

tional, see Scarborough, 124 S. Ct. at 1865 (“the provision’s

30-day deadline for fee applications and its application-

content specifications are not properly typed ‘jurisdiction-

al’ ”), we find no compelling reason to interpret “submit” dif-

ferently from “file” for purposes of 28 U.S.C.

§ 2412(d)(1)(B)’s deadline. Cf. Grivois v. Brown, 7 Vet. App.

100, 101 (Vet. App. 1994) (interpreting 28 U.S.C. § 2412(d)

(1)(B) to mean that “to timely ‘submit’ an EAJA application,

it must be received by the Court within 30 days of final judg-

ment.” (citing Lord Jim’s)). We therefore deny Arulam-

ner as other pleadings in the proceeding . . . .” ); 59 Fed. Reg. 44340,

44340 (Aug. 29, 1994) (“The [FCC] has adopted a new rule that explicitly

provides that all documents are considered filed with the Commission

upon receipt at the location designated by the Commission.”). With

respect to OSHA, see 29 C.F.R. § 2204.301 (“An EAJA application is

deemed to be filed only when received by the [Occupational Safety and

Health Review] Commission.”); 62 Fed. Reg. 35961, 35963 (July 3, 1997)

(“The [Occupational Safety and Health Review] Commission also pro-

posed amending EAJA Rule 301 to conform to its [1991] decision . . .

which held that applications for EAJA awards must be received by the

Commission within thirty days of the final order date.”).

ARULAMPALAM v. GONZALES 2351

palam’s motion for fees under 28 U.S.C. § 2412(d) as

untimely.

In Arulampalam’s response to our briefing order, counsel

made an alternative motion for attorney’s fees under 28

U.S.C. § 2412(b).3 The government contends that, under Cir-

cuit Rule 39 1.6 (“the Rule”), the “alternative motion is

clearly untimely.” We agree.

The Rule states in relevant part: “Absent a statutory provi-

sion to the contrary, a request for attorneys fees . . . shall be

filed with the Clerk . . . within 14 days after the court’s dispo-

sition of [a petition for rehearing].” Arulampalam relies on

McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), to estab-

lish timeliness. See id. at 1084 (“Subsection (b) contains no

explicit time limit for filing an application for fees. In the

absence of a specific time restriction, a request is timely if

filed within a reasonable period after entry of judgment and

if it does not unfairly surprise or prejudice the affected party.”

(emphasis added)). McQuiston’s holding was based, however,

on case law establishing that local rules trump the reasonable-

ness standard of timeliness. See id. (citing Metcalf v. Borba,

681 F.2d 1183, 1187 (9th Cir. 1982) (“In the absence of a

controlling local rule, we find appellee’s fee request was filed

within a reasonable period after entry of judgment and was

therefore timely.” (emphasis added)) and White v. N.H. Dep’t

3

This provision states:

Unless expressly prohibited by statute, a court may award rea-

sonable fees and expenses of attorneys, in addition to the costs

which may be awarded pursuant to subsection (a), to the prevail-

ing party in any civil action brought by or against the United

States or any agency or any official of the United States acting

in his or her official capacity in any court having jurisdiction of

such action. The United States shall be liable for such fees and

expenses to the same extent that any other party would be liable

under the common law or under the terms of any statute which

specifically provides for such an award.

28 U.S.C. § 2412(b).

2352 ARULAMPALAM v. GONZALES

of Employment Sec., 455 U.S. 445, 454 (1982) (“the district

courts remain free to adopt local rules establishing timeliness

standards for the filing of claims for attorney’s fees”)). Our

local rules now provide a time restriction. We therefore also

deny Arulampalam’s § 2412(b) motion as untimely.

DENIED.

FERNANDEZ, Circuit Judge, concurring:

I concur in the first three paragraphs, in the last two para-

graphs, and in the result. Thus, I join in those portions of the

Order.

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