# Petition for Writ of Certiorari — District of Columbia Board of Elections & Ethics v. Turner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1764%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 817 ## Text Supreisie: Court. | / Q3lL647 JUN 200 No In the Supreme Court of the Anited States OCTOBER TERM, 2003 DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Petitioner, v. WAYNE TURNER, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI ROBERT J. SPAGNOLETTI Attorney General EDWARD E, SCHWAB Deputy Attorney General DONNA M. MURASKY* Senior Litigation Counsel *Counsel of Record OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4” Street, N.W. 6" Floor South Washington, D.C. 20001 (202) 724-5667 TIMOTHY K. ARMSTRONG STACEY H. KING HOWREY SIMON ARNOLD & WHITE 1299 Pennsylvania Avenue, NW Washington, D.C. 20004 (202) 783-0800 Attorneys for Petitioner QUESTION PRESENTED More than one hundred federal fee-shifting statutes give district courts “discretion” to fashion a “reasonable attorney’s fee.” The question presented is whether, as most Circuits have ruled, these fee-shifting statutes allow district courts to apportion a fee award among defendants, even when a prevailing plaintiff receives less than a fully compensatory fee award, or whether, as the D.C. Circuit has held, district courts have no discretion to apportion in this circumstance and must hold responsible for the entire fee award a relatively nonculpable defendant, even a defendant who aligned itself with plaintiff throughout the litigation. ) ot. PARTIES TO THE PROCEEDING Pursuant to Supreme Court Rule 14.1(b), petitioner states that the parties to the proceeding are as follows: District of Columbia Board of Elections and Ethics, Petitioner; Wayne Turner, Respondent; Yes on 59, Respondent; Cornelius Baker, Respondent; Steve Pardieck, Respondent; Jim Graham, Respondent. - ill - TABLE OF CONTENTS GPR REe Se GIEY PURINE HEED vovssecacseessoveresesessesesorservovevereeeerexsvere i PARTIES TO THE PROCEEDING. ...........cccccccssssscessssosecsceee il BAERS FE AU THORITIFG. cssecessssssosesecevesosetssceveveseneserssseees Vv IE MEI OY kccsssevevecvesceyscenseveséveeesesnsuvesenseveseeenesesevenes l sac baniinabindeiiinsscsbeniewdecsnrvisoaniiaboriniieinmenboveres 2 STATUTORY PROVISIONS AT ISSUE ........ccccccccecceseseeees 2 Pe RMIENET S OE BBO CAINE occ ecsesnssaseversessosesseovecsssasesosers 2 REASONS FOR GRANTING THE WRIT ...........ccccceseseeeee 8 I. THE D.C. CIRCUIT IS IN CONFLICT WITH OTHER CIRCUITS AS TO WHETHER FEDERAL FEE-SHIFTING STATUTES ALLOW A DISTRICT COURT TO APPORTION ATTORNEY'S FEEG...........ccccccsceceseeeeeee 10 II. THE D.C. CIRCUIT'S DECISION DISALLOWING FEE APPORTIONMENT DOES NOT COMPORT WITH THIS COURT'S PR PEPIN Is: vasesinssecvovenesvexvessesnntionsovvoriveerecreeonves 16 I ios bas esihinictipinipeusteecesaitinnesovetivinaencsincsssolentele 20 INDEX TO APPENDICES Opinion of the United States Court of Appeals for the District of Columbia Circuit dated January 23, _____ FESS SRS NATE ee |e ee Na ee la -iv- Order of the United States Court of Appeals for the District of Columbia Circuit on Denial of Petition for Rehearing En Banc, March 10, 2004............. cee 17a District Court’s Memorandum and Order, January 8, Ua asoesiissiesdibicaicassdodpcinneaacdaaadadmiataaainiatlapeiniiats 18a District Court’s Order, February 14, 2003 0.0... eee 23a Magistrate Judge’s Memorandum Opinion, October : Bs EE sauiichcnadbicedaacieaadshualoniniibeaanamneamMats 25a Magistrate Judge’s Memorandum Opinion, July 24, MITT ‘cdivnisbiscicinihadeancatieinad bicanititaainidiideadibaaenmadbiaiesiaieiammniaiulanael 40a Magistrate Judge’s Memorandum Opinion, March 21, RA ee a RR DSO NOE ey OOO LED 57a 7 Text of Pertinent Statutory Provisions ...............csccceseeeees 67a | EIR ARGO PRT ROR TABLE OF AUTHORITIES CASES Blanchard v. Bergeron, 489 U.S. 87 (1989) ........... 18 Corder v. Gates, 947 F.2d 374 (9th Cir. 1991)....... 15 Council for Periodical Distributors Ass’ns v. Evans, 827 F.2d 1483 (11th Cir. 1987)..... 14, 15 Farrar v. Hobby, 506 U.S. 103 (1992).............. 16, 17 Firebird Society v. Members of Board of Fire Commissioners, 556 F.2d 642 GE. ie tosis ctrtediesinhebicaitaaalacanann 13, 14 Hen.ey v. Eckerhart, 461 U.S. 424 PD iiscitnnshetinieiataictaicieamneine 16, 17, 18 Herbst v. Ryan, 90 F.3d 1300 (7th Cir. 1996)... 12, 13 Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989)... ceeceeseseeees 3, 16 Jones v. Espy, 10 F.3d 690 (9th Cir. 1993)....... 11,12 Knights of Ku Klux Klan v. East Baton Rouge Parish School Board, 735 F.2d 895 EPI TD iscsi cvicsiaibaeibeisibicalbsnieabbedgidaatiasadiaess 15 Koster v. Perales, 903 F.2d 131 II I sichietinianiciidiidi es 14 Little Rock School District v. Pulaski County Special School District, 787 F.2d 372 ° Vie CO Sai SEI wincuvssscscensscintaiiceseeseistieianimnneenciens 15 Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986)... 2 Sable Communications, Inc. v. Pacific Telephone & Telegraph Co., 890 F.2d 184 COIN GAN. DEI sncetnnsrecuisessevsiceninceniienninediodieniicnen 12 Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981)... ee eeeees 10, 11 STATUTES Be IA... & TR Pviccsicinsibesnincivninheeiadnimiaremens 2 20 UB, 9 BUC iticiictmnneaonion 2, 6, 11 GO UB, © FOO vrnscnienisiinienananiindiaiianaiin 2, 6, 11 Pub. L. No. 105-277, § 171, 112 Stat. 2681 (1998)... 4 5. 42... EOTED .nicnmisnbociedamansiaa 2 heer ae i RIB TRG ALIN OO ce WK dG ws We tar Sata el ge er Ae OES Jn the Supreme Court of the United States DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Petitioner, Vv. WAYNE TURNER, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI Petitioner District of Columbia Board of Elections and Ethics respectfully petitions for a writ of certiorari to review a decision of the United States Court of Appeals for the District of Columbia Circuit. OPINIONS BELOW The opinion of the United States Court of Appeals for the District of Columbia Circuit (App. 1a) is reported at 354 F.3d 890. The order denying the petition for rehearing and for rehearing en banc (App. 17a) is reported at No. 03-7030, 2004 U.S. App. LEXIS 4658. The opinion of the district court relating to the attorney’s fees at issue in this petition (App. 18a) and granting plaintiffs’ motion to reconsider and awarding fees of $61,529 against the Board of Elections. The opinions of the magistrate judge relating to these fees itn (App. 25a) are reported at 170 F. Supp. 2d 1, No. 98-2634, 2001 U.S. Dist. LEXIS 23437, and at 183 F. Supp. 2d 22. JURISDICTION The decision of the United States Court of Appeals was issued on January 23, 2004. Petitioner filed a timely petition for rehearing and rehearing en banc on Monday, February 23. It was denied on March 10, 2004. This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS AT ISSUE The statutory provisions at issue are reproduced in the Appendix pursuant to S. Ct. R. 14.1(f). (App. 67a). They are the Civil Right Attorneys’ Fee Act of 1976 (42 U.S.C. § 1988), and the Equal Access to Justice Act (28 U.S.C. § 2412(d)). STATEMENT OF THE CASE Congress has enacted more than 100 federal fee- shifting statutes granting district courts “discretion” to award a “reasonable attorney’s fee” to prevailing parties. Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 562 (1986). Until the decision for which review is sought here, the Circuits, consistently with this Court’s jurisprudence, had uniformly interpreted the language of the typical federal fee-shifting statute to permit district courts to apportion fees among defendants, based on considerations such as relative culpability and the relative time a plaintiff spent litigating against each defendant. The Circuits applied such an approach even when a district court determined that a reasonable attorney’s fee was less than a fully compensatory fee. Fad CRN RS eg YS The D.C. Circuit has now ruled as a matter of law that district courts do not have discretion to apportion in this circumstance. It thus has departed from the approach of its sister Circuits and has ignored this Court’s admonition that “nothing” in federal fee-shifting statutes gives prevailing plaintiffs “hegemony over all the other rights and equities that exist in the world.” /ndep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 764 n.4 (1989). And it has done so in a particularly compelling case for apportionment. Here, the defendant being held responsible for all fees not only aligned itself with plaintiffs from the outset of the litigation but also requested and received the relief it, along with plaintiffs, sought. It is being held fully responsible, moreover, because plaintiffs negligently failed to file a timely fee petition against the defendant which enacted the legislation causing plaintiffs harm; intervened as a defendant; and litigated to the hilt in the district court unsuccessful arguments against both plaintiffs and the defendant aligned with them. A. The D.C. Medical Marijuana Initiative and the Barr Amendment On September 17, 1998, the District of Columbia Board of Elections and Ethics (“the Board”) certified Initiative 59, the District of Columbia Medical Marijuana Initiative, for placement on the November 3, 1998, District of Columbia general election ballot.! In response, on October 21, 1998, Congress enacted Section 171 of the District of Columbia Appropriations Act 1 This Initiative was designed to allow chronically ill individuals to obtain and use marijuana for medical purposes under the care of a physician without violating the District of Columbia Uniform Controlled Substances Act. eS for fiscal year 1999. Section 171, known as the Barr Amendment, specifically targeted Initiative 59, providing: None of the funds contained in [the District of Columbia Appropriations Act] may be used to conduct any ballot initiative which seeks to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act... or any tetrahydrocannabinols derivative. Pub. L. No. 105-277, § 171, 112 Stat. 2681-150 (1998). Because the ballots had already been printed and mailed, however, Initiative 59 remained on the ballot and was favorably voted upon by District residents in the election. B. The District Court Proceedings is Filing of the Lawsuit On October 30, 1998, just four days before the election, Wayne Turner and others (“Turner”) filed a complaint challenging the Barr Amendment on First Amendment grounds. Turner further argued that the Barr Amendment did not apply to expenditures on post-election activities, and thus permitted the Board to release and certify the election results. Following the election, the Board did not tabulate the votes on Initiative 59, based on the belief that such action would violate the Barr Amendment. As a result, the Board moved on November 6 for a declaratory judgment that the Barr Amendment was unconstitutional. The Board also requested expedited review and leave to tabulate and 7 2 announce the results in time for the November 18 Board meeting where all the election results were to be certified. On November 6, Turner applied for a temporary restraining order and moved for a preliminary injunction directing the Board to release the results of the vote on Initiative 59. The Board did not oppose Turner’s application or motion. On November 9, the United States filed an opposition to Turner’s requests. After a hearing, the district court denied Turner’s requests. ys The United States’ Intervention as Defendant On November 23, 1998, the United States moved to intervene as a defendant in the case. The court granted the motion on November 30. That same day, all three parties moved for summary judgment. Both the Board and Turner urged that the Barr Amendment was unconstitutional and requested leave to announce and certify the election results. The United States, however, argued that the Barr Amendment was constitutional as a valid exercise of Congressional authority over the District of Columbia. On December 10, both the Board and Tumer filed oppositions to the United States’ motion for summary judgment, and the United States filed an opposition to both of their motions for summary judgment. On December 16, all three parties filed reply briefs. Again both the Board and Turner directed their reply briefs entirely to arguments opposing the United States’ motion, and the United States argued against both their motions. 3. The District Court’s Merits Decision. ~* On September 17, 1999, the district court construed the Barr Amendment as not prohibiting counting, releasing, or certifying the results of the vote on Initiative 59. A contrary construction, the district court reasoned, would have required it to invalidate the Amendment on constitutional grounds. The court granted the Board’s November 6, 1998, motion for an order authorizing it to announce and certify the election results. Finally, the court granted Turner’s motion for summary judgment insofar as it argued that the Barr Amendment did not prevent the Board from computing and certifying election results. The United States did not appeal the decision. 4. Turner’s Application for Attorney’s Fees and the Magistrate’s Decision On March 31, 2000, Turner filed a petition for attorney’s fees from the Board pursuant to 42 U.S.C. § 1988 and from the United States under 28 U.S.C. § 2412(d)(1)(A), the Equal Access to Justice Act (““EAJA”). Turner’s request was referred to a magistrate judge who, on July 24, 2001, denied it under the EAJA because it had been filed three and a half months after the deadline for filing a fee request had run, and thus fell outside the “limited waiver’ of federal sovereign immunity found in the EAJA. = Turner did not appeal the magistrate’s decision but instead sought joint and several recovery of all legal fees from the Board. Turner argued that, irrespective of the United States’ liability for attorney’s fees, the Board was fully liable under section 1988 for all the fees he had incurred throughout the litigation. The Board opposed on the grounds that it had been a defendant in name only and, in fact, both it and Turner had been aligned throughout the proceedings and had prevailed. i7. The magistrate judge, on October 23, 2001, apportioned responsibility and expressly declined to impose joint and several liability. The magistrate found the United States was responsible for initially suppressing the election results and reasoned that it would be unfair to impose joint and several liability simply because Turner had failed to make a timely fee request against the United States. The magistrate found the Board liable for $4,113 in fees. 5. The District Court’s Order Apportioning Fees Turner appealed the magistrate’s apportionment of fees. He argued that the magistrate judge erred in apportioning attorney’s fees and asked that the Board be found jointly and severally liable for all attorney’s fees. On January 8, 2003, the district court on de novo review found that Turner cvuld have received a fully compensatory fee had he timely filed a request for fees from the United Sates under the EAJA. The court agreed that apportionment in this situation was a fair result. The court did, however, increase the amount of fees the Board would be required to pay based on what the court determined were the three phases of the litigation: (1) the time period up to November 6, 1998, when the Board filed its first pleading; (2) post-November 6, 1998; and (3) the fee- application stage. For the period up to November 6, the court found the Board responsible for 87% of Turner’s fees. The court determined the Board was not wholly responsible because the United States was “solely responsible” for enacting the Barr Amendment, and thus was significantly responsible for os causing the election results to be suppressed and for instigating the litigation. For the period after November 6, when the Board and Turner were allied in seeking to overturn the Barr Amendment, the court determined that the Board was not responsible for any fees because all further litigation was instigated solely by the United States. Finally, for the fee-application stage, the court apportioned 47% of Turner’s attorney’s fees to the Board. The apportionment was based on the percentage of pages devoted to obtaining fees from the Board in Turner’s application for fees. C. The District of Columbia Circuit’s Decision Turner appealed. The D.C. Circuit ruled, as a matter of law, that district courts do not have discretion to apportion fee responsibility when apportionment would result in less than a fully compensatory fee award for a prevailing plaintiff. This factor, according to the court, trumps all other factors that district courts might otherwise fairly and equitably take into account. Accordingly, it held the Board jointly and severally liable for all of Turner’s fees for the merits litigation. REASONS FOR GRANTING THE WRIT There is a conflict among the Circuits on the question whether a district court has discretion to apportion attorney’s fees under the typical federal fee-shifting statute when apportionment results in a plaintiff not being fully compensated. Although other Circuits have determined that attorney’s fees can be apportioned even where a plaintiff will obtain less than a full award, the D.C. Circuit has now held that such apportionment cannot occur. Tn Se ee ee = ig ee «9. Before this case, district courts had discretion in fashioning a reasonable fee award to take into account not only plaintiff's interest in receiving fees for a meritorious claim but also countervailing rights and equities. The courts strove to ensure not only that plaintiffs received a just award, but also that defendants were not held responsible for fees attributable to other defendants. The fact-specific case-by- case balancing of these competing values has been respected by the Circuits that review a district court’s decision for a abuse of discretion. | The D.C. Circuit’s decision upsets this traditional analysis in two related, but individually erroneous, respects. First, the D.C. Circuit held that failure to grant an award jointly and severally, resulting in plaintiff not being fully compensated, is an error of law despite other Circuits’ holdings to the contrary. Second, the D.C. Circuit failed to take into account the language of the typical federal fee- shifting statute, this Court’s prior holdings, and considerations of fairness and justice, instead applying a mechanistic rule. In both of these respects, the D.C. Circuit’s decision departs from the considered views Quinlivan requested a formal settlement proposal from plaintiffs. T. at 15, 16. Quinlivan also testified that sometime in early January, Boyd referenced the parties’ October 8, 1999 Order holding all fees’ issues in abeyance 4 Markowitz recalls that he likely told Boyd about his successor on or before December 14, 1999, as Markowitz’s last day at the DOJ was December 15, 1999. T. at 60, In. 12-14. Boyd testified that his best recollection was that he learned of Quinlivan’s entry into the case in late December 1999 or early January 2000, T. at 15, In. 8-9, although, he testified, it could have been before December 20, 1999. T. at 35, In. 19-20. > Quinlivan recalls having his first conversation with Boyd sometime during the second week of January 2000, T. at 80, In. 5-8. Boyd estimates that he learned who Markowitz’s successor would be in late December or early January, though possibly before December 20, 1999. . at 15, 35. According to Boyd, he called Quinlivan immediately after learning Quinlivan would be taking over the case for the government, and they talked within a day or two after that. T. at 15, In. 12-16, 46a pending settlement efforts, and Quinlivan thereafter reviewed the consent order. T. at 87, In. 20-25. Quinlivan testified that the first time he focused on the relationship between the October 8, 1999 Order and the EAJA deadline in the case was “sometime in January”. T. at 87, In. 18-25, T. at 88, In. 1-5, On January 21, 2000, the parties held a conference call in which plaintiffs’ attorneys Graham Boyd and Arthur Spitzer, the government’s attorney, Quinlivan, and a lawyer for the D.C. Board, discussed the possibility of settling the fee issue. T. at 17. The parties were unable to reach a resolution, and on February 4, 2000, they filed a report with Judge Roberts proposing a schedule for the fee petition. T. at 17-18. In drafting the proposed schedule for fees, attorney Quinlivan specifically asked for a notation which indicated that the government reserved its right to object to the timeliness of plaintiffs fee petition, although he did not specify on what grounds.® T. at 18, In. 3-8; T. at 82, In. 22- 24. Pursuant to the parties’ proposed schedule, Judge Roberts issued an Order on February 14, 2000 directing plaintiffs to file their fees’ motion on or before March 24, 2000. Order of February 14, 2000 at 1. After a subsequent © Quinlivan recalls raising the timeliness issue the first time he and Boyd spoke about the case, which Quinlivan estimates to be the second week in January 2000. T. at 80, In. 16-18. He testified that he also spoke with Boyd about the timeliness issue during the January 21, 2000 conference. T. at 82. During that conference, according to Quinlivan, the government told Boyd that the fee petition was untimely. Id. at In. 6-7. Quinlivan recalls Boyd opposing this, mentioning the parties’ consent order of October 8, 1999, and stating the parties had agreed to hold the fees’ issue in abeyance. Id. at In. 7-10. Quinlivan also recalls in the same conversation mentioning to Boyd that this case may not be a suit “against the United States” under 28 U.S.C.A § 2412(d\1)(A). T. at 82, In. 12-14. OO 47a extension, plaintiffs filed their fee petition on March 31, 2000, approximately three and one-half months after the EAJA deadline had run. ANALYSIS The EAJA Filing Deadline EAJA provides in relevant part: 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 which show that the party is a prevailing party and is eligible to receive an award under this subsection, and the amounts sought... 28 U.S.C.A. § 2412(d)(1)(B)(1998) (emphasis added). Meeting | this thirty-day EAJA deadline is a jurisdictional prerequisite to government liability under EAJA. See Action on Smokin Health v. Civil Aeronautics Bd. 724 F.2d 211, 225 (D.C. Cir. 1984): American Ass'n of Retired Persons v. EEOC, 873 F.2d 402, 407 (D.C. Cir. 1989); Bryan vy. OPM, 165 F.3d 1315, 1321 (10" Cir. 1999) (“The thirty-day time limitation is jurisdictional in nature.”); Bazalo v. West, 150 F.3d 1380, 1383 (Fed. Cir. 1998) (“We have unequivocally held that the thirty-day time limit for filing an EAJA application after final disposition of an adversary adjudication is a jurisdictional prerequisite to an award of attorney fees.”); Yang v. Shalala, 22 F.3d 213, 215 n. 4 (9" Cir.); Welter v. Sullivan, 941 F 2d 674, 675 (8° Cir. 1993); Myers v. Sullivan, 916 F.2d 659. 666 (11" Cir. 1990) (same); Taylor v. United States, 749 48a F.2d 171, 174 (3d. Cir. 1984) (same); Allen v. Secretary of HHS, 781 F.2d 92, 93 (6 Cir. 1986). Because the thirty-day requirement is jurisdictional, neither the Courts nor the parties may waive it. See Howitt v. U.S. Department of Commerce, 897 F.2d 583, 583-84 (1" Cir. 1990) (“The circuit courts have unanimously agreed that the statute’s 30- day time limit is jurisdictional, and therefore that neither they parties nor the courts may waive it.”) (citing Adam Sommerrock Holzbau, Gmbh v. United States, 866 F.2d 427, 430 (Fed.Cir.1989); MacDonald Miller Co. v. NLRB, 856 F.2d 1423, 1425 (9th Cir.1988); J-I-J_ Construction Co. v. United States, 829 F.2d 26, 29 (Fed. Cir.1987); Western Newspaper Publishing Co. v. NLRB, 821 F.2d 459, 460 (7 Cir.1987); Sonicraft. Inc. v. NLRB, 814 F.2d 385, 386 (7th Cir.1987); cf. Long Island Radio Co. v. NLRB, 841 F.2d 474, 477 (2d Cir.1988) (30-day time limitation in 5 U.S.C. § 504(a)(2) for filing an initial application for attorney’s fees = agency proceedings under EAJA is jurisdictional), Clifton Heckler, 755 F.2d 1138, 1144-45 (5 Cir.1985) cama 30day time limitation in 28 U.S.C. § 2412(d)(1)(B) regarding initial EAJA application in civil actions is jurisdictional); Action on Smoking & Health v. CAB, 724 F.2d 211, 225 (D.C. Cir.1984) (same); Columbia Mfg. Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir.1983) (per curiam) (5 U.S.C. § 504(a)(2) imposes jurisdictional limit); Monark Boat Co. v. NLRB, 708 F.2d 1322, 1326-27 (8" Cir.1983) (same)). The claim of untimeliness is an affirmative defense and therefore the defendant bears the burden of pleading it. See Bowden v. U.S., 106 F.3d 433, 437 (D.C. Cir. 1997). However, once the defendant has met its burden, the plaintiff must then plead and prove facts which support equitable avoidance of the result of its untimely filing. Id. Defendant has met its burden of untimeliness. It is undisputed that . nal judgment in this case was entered on November 16, 1999. ee 49a Judge Robert’s Order granting plaintiffs’ motion for summary judgment was entered on September 17, 1999, see Turner, 77 F.Supp.2d at 35, and the United States’ time for appeal lapsed on November 16, 1999, See Fed. R. App. P. 4(a)(1). Because the United States did not appeal Judge Roberts’ Order, the date of final judgment for this matter was November 16, 1999, Accordingly, under 28 U.S.C.A. § 2412(d)(1)(B), the plaintiffs had until December 16, 1999 to file their fee petition.” Plaintiffs filed their motion for fees over three months later, on March 31 , 2000. Plaintiffs argue that principles of equitable tolling excuse their admittedly late filing. They rely upon the Supreme Court’s ruling in Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95 (1990), which held that equitable tolling is applicable to jurisdictional deadlines where Congress has already waived the federal government’s sovereign immunity. Plaintiffs’ Reply in Support of Plaintiff's Motion for_Attorney’s Fees and Expense (“Pl. Reply”) at 12. Plaintiffs reason that because Congress waived sovereign 7 There is minor discrepancy between the parties’ recitation of these relevant dates and the actual deadlines. In its Opposition to plaintiffs’ motion for fees, the United States indicates that Judge Roberts’ Order granting plaintiffs’ motion for summary judgment was entered on September 20, 1999. Uni w ition t intiff Motion for Attorneys’ Fees an Ex (“U.S. Memo Opp.”) at 7. This date does not accord with the date of Judge Robert’s published Opinion and Order, Tumer v. D.C. f Elections and Ethics, 77 F.Supp.2d 25, nor with the docket sheet in this case, which both list September 17, 1999 as the date of judgment. Because the United States lists September 20, 1999 as the date of final judgment, they calculate that the time for appeal lapsed on November 19, 1999, and consequently, they claim plaintiffs’ fee petition under EAJA was due on December 20, 1999. See U.S. Memo Opp. at 7. This Court will use the date that appears on Judge Roberts’ Order and the court’s docket sheet, September 17, 1999, as the starting point for its analysis. 50a immunity in enacting EAJA, EAJA’s provisions are subject to the principles of equitable tolling. Id. The issue before the Court in Irwin was whether the plaintiff's late-filing in a Title VII suit barred the court from hearing plaintiff's claim. Id. at 93. The Court held that it did not, and in so doing, stated that the case “affords us an opportunity to adopt a more general rule” regarding the applicability of equitable tolling in cases against the federal government. Id. at 95. The Court concluded that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States...” id. at 95, 96, thereby specifically rejecting its past ad hoc approach to these cases, which had the “disadvantage of continuing unpredictability.” Id. at 95. Prior to Irwin, the D.C. Circuit, as discussed above, held that EAJA’s filing deadline was jurisdictional and could not be waived. See, e.g., Action on Smoking, 724 F.2d at 225. After Irwin, both the Supreme Court and this Circuit have been silent as to whether EAJA is subject to equitable tolling.8 The Court need not decide that issue today. Even assuming the § 2412(d)(1)(B) filing deadline is subject to equitable tolling, the circumstances of this case do not warrant its application. Analysis of Equitable Tolling Equitable tolling can apply in several circumstances. In Irwin, the Supreme Court noted that equitable tolling 8 Two post-Irwin cases in this Circuit give, at best, uncertain guidance. See Scott v. National Transportation Safety Board, 114 F.3d 305 (D.C. Cir. 1997) (EAJA deadline jurisdictional but no discussion of equitable tolling); Washington v. Washington Metropolitan Area Transit Authority, 160 F.3d 750 (D.C. Cir. 1998), cert. denied, 527 U.S. 1038 (1999) (applying equitable tolling to Title VII deadline). Sla applies in situations “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the Statutory period” or where he has been “induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin at 96. This Circuit has indicated that equitable tolling is appropriate where “a claimant has received inadequate notice, ... where a motion for appointment of counsel is pending and equity would justify tolling the Statutory period until the motion is acted upon, ... where the court has led the plaintiff to believe that she had done everything required of her, ... [or] where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction.” Bull, S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995) (citing Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988) (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam)). Further, a plaintiff's justifiable reliance on the advice of a governmental official may also excuse the plaintiff's failure to meet a filing deadline. See Bull, S.A. at 681 (quoting Jarrell v. United States Postal Service, 753 F.2d 1088, 1092 (D.C. Cir. 1985). Nonetheless, equitable tolling is only available in “extraordinary and carefully circumscribed instances,” Smith-Haynie v. District of Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998), and courts have been unwilling to apply it to “a garden variety claim of excusable neglect.” Washington v. WMATA, 160 F.3d 750, 753 (quoting Irwin, 498 U.S. at 96). Plaintiffs do not assert, nor could they make the claim, that they “actively pursued” their judicial remedies by “filing a defective pleading during the statutory period.” 52a Plaintiffs made no filing in this case until March 31, 2000, approximately three and one-half months after the EAJA deadline had passed. Furthermore, plaintiffs have shown no affirmative wrongdoing on the part of defendants. Indeed, plaintiffs conceded at the evidentiary hearing on this matter that the defendants have engeged in no affirmative misconduct or trickery that would justify equitable tolling. T. at 92, In. 12-19; T. at 29, In. 23. Instead, plaintiffs contend that equitable tolling should apply because the government induced plaintiffs to allow the EAJA deadline to pass when the government agreed to a consent order holding all fees issues in abeyance while the parties tried to settle the fees’ claim, and then subsequently pursued an untimeliness defense after the EAJA deadline had passed. Pl. Reply at 12-13. Courts may excuse late filing when the plaintiff was misled by their adversary’s actions about the running of the filing period, see Bowden v. United States, 106 F.3d 433, 438 (D.D.C. 1997), or induced by their adversary’s misconduct into allowing the deadline to pass. Irwin at 96, fn.4 (citing Glus v. Brooklyn Eastern Terminal (adversary’ misrepresentation caused plaintiff to allow filing deadline to lapse; Holmberg v. Armbrecht, 327 U.S. 392 (1946) (same)). Plaintiffs here were not induced or misled by defendant’s conduct. Both the pleadings before me and the testimony presented at the hearing indicate that the parties mutually agreed to hold all fees’ issues in abeyance pending settlement discussion. The parties did so without ever discussing the EAJA deadline. T. at 29, In. 7-9; T. at 58, In. 2. Further, the government at no time represented to plaintiffs that the EAJA deadline would be waived. Indeed, government attorney Markowitz testified that he not even aware of the EAJA deadline. T. at 70, In. 10-11. Given that the government’s attorney was unaware of the EAJA 53a deadline when he agreed with plaintiffs’ attorney to hold fees’ issues in abeyance, and made no representations whatsoever as to EAJA, I cannot reach the conclusion that defendants somehow induced or lulled plaintiffs into missing the deadline. Furthermore, while Markowitz’s successor, Quinlivan, testified that he was familiar with EAJA and its filing deadlines, T. at 80, he also testified that he did not focus on the relationship between the parties’ October 8, 1999 consent order and the applicable EAJA deadline until early January 2000. T. at 87, In. 18-25. Had Quinlivan been simultaneously aware of the consent agreement and the approaching EAJA deadline, plaintiffs may have a case for misconduct or a misleading of plaintiffs into missing the deadline, because this would show that the government allowed the deadline to pass knowing that the parties agreed to hold all issues with respect to fees in abeyance while they tried to settle the matter. However, plaintiffs offered no evidence to refute Quinlivan’s testimony, or to suggest that Quinlivan was aware of the consent agreement between the Parties prior to the time the EAJA deadline passed. Therefore, on the evidence before me, I cannot agree with plaintiffs’ assertion that the government misled plaintiffs into missing the EAJA deadline. Plaintiffs also contend that equitable tolling is appropriate here because they reasonably relied on the advice of a govemment official. Plaintiff's Reply in Support of Their Renewed Motion for Attorneys’ Fees and Expenses at 4. In support of this argument, plaintiffs cite to Jarrell v. United States Postal Service, 753 F2d 1088 (D.C. Cir. 1985), which held that a filing deadline may be excused where a pro se claimant failed to contact an EEO counselor in a timely manner because the claimant relied on the assurances of an EEO officer that the officer was attempting to have certain 54a information expunged from the claimant’s records. Id. at 1092. Plaintiffs’ case, however, is readily distinguishable. Unlike the claimant in Jarrell, plaintiffs here were not proceeding pro se, but were instead represented in the fees’ negotiations by a nationally-renowned legal organization, the ACLU. Significantly, plaintiffs were represented by the ACLU when plaintiffs and the government jointly agreed to hold all fees issues in abeyance. The ACLU continued to try to negotiate a settlement on behalf of the plaintiffs throughout the relevant period. In contrast with the claimant in Jarrell, the plaintiffs here, represented at all times by counsel, cannot claim their lateness in filing was justifiable. The ACLU has a distinguished history of engaging in the most significant civil mghts and civil liberties litigation in American history. See www.aclu.org/library/Freedomls. Why.pdf. It routinely engages in litigation against the United States government, and its attorneys should have known, or made themselves aware, of the appropriate filing deadlines under EAJA, irrespective of any agreement entered into by the ACLU and the’government attorneys. Cf. Battle v. Rubin, 121 F. Supp.2d 4, 9 (D.D.C. 2000). The Supreme Court has “generally been much less forgiving in receiving late filings where claimant failed to exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at 96. In sum, I conclude that the circumstances of this case do not warrant equitable tolling. I reach this result with some regret; disposition on the merits is always preferable to a procedural default. Nevertheless, if one construes Boyd’s equivocal testimony, see n. 4 supra, in ACLU’s favor, its best case is that its attorney (Boyd) and the government’s attorney (Markowtiz) were mutually ignorant of a jurisdictional deadline when they agreed to postpone Judge Roberts’s consideration of the a petition pending the parties’ 55a attempt to negotiate fees. At the risk of patronizing them, one has to say that those lawyers ought to know that deadlines, inexorable and sometimes devastating to their clients’ interests, are a litigating lawyer’s life and she ignores them at her peril. To excuse the ACLU’s failure to learn of the EAJA deadline because government’s counsel was equally ignorant of it is unprecedented, unsanctioned by any legal authority, and a contortion of the history and purpose of the concept of “equitable tolling.” Mutual ignorance of a deadline by the government and its opponent cannot invoke a principle designed to prevent government sharp dealing and to permit justified reliance on the statements of government officials which could lead a reasonable person to believe that a deadline is being waived or does not apply until another event occurs. —d It must also not be forgotten that EAJA is a waiver of sovereign immunity which must be construed strictly in favor of the sovereign. In re Sealed Case, 2001 WL 739819 * 4 (D.C. Cir. July 3, 2001). To excuse the ACLU’s failure to meet a jurisdictional deadline because its attorneys were as ignorant of it as the government is to violate that principle in the most obvious way. It would be hard to imagine a more generous construction of that waiver of sovereign immunity than to waive it because a lawyer was ignorant of it. CONCLUSION Accordingly, this court will deny plaintiffs’ Renewed Motion for Attorneys’ Fees as to the United States. An Order will be issued accompanying this Memorandum Opinion which will deny plaintiffs’ motion for fees against the United States. The ACLU also seeks fees against defendant D.C. Board of Elections. It is the ACLU’s position that the United States and the D.C. Board share joint and several liability for 56a “expenses and for fees up to the amount compensable under EAJA”. Plaintiffs’ Motion for Attorneys’ Fees and Expenses (“Pl. Mot.) at 23. As plaintiffs state: “Here, the shared liability should apply to plaintiffs’ expenses and to the amount of fees awarded under EAJA. The D.C. defendants should be solely liable for any amount of fees awarded under § 1988 that exceeds the amount awarded under EAJA.” PI. Mot. at 23-24. Obviously, my determination today denying any award of fees against the United States may substantially impact plaitiffs’ position on fees vis-a-vis the D.C. Board. Therefore, in fairness to the parties, I will grant the ACLU and the D.C. Board the opportunity to address the validity of any recovery of fees against the D.C. Board in light of my determination. Accordingly, I will permit the ACLU to file, within fourteen (14) days of the date of this Order, a statement which addresses whether, in light of the determination denying fees as to the United States, an award of fees against the D.C. Board is valid. The D.C. Board shall have fourteen (14) days thereafter to respond, and the ACLU seven (7) days thereafter to file a reply. /s/ John M. Facciola John M. Facciola United States Magistrate Judge 57a UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 98-2634 WAYNE TURNER, ET AL. V. D.C. BOARD OF ELECTIONS AND ETHICS Before: FACCIOLA, United States Magistrate Judge. (Filed March 21, 2001) MEMORANDUM OPINION AND ORDER FACCIOLA, United States Magistrate Judge. Plaintiffs seek attorneys fees against the District of Columbia Board of Elections and Ethics (“the Board”) and the United States. . Before I can resolve the merits of plaintiffs’ fee petition, I must address several outstanding issues. A. Award of Fees Against DC Board of Elections Plaintiffs assert fees against the Board pursuant to 42 U.S.C.A. § 1988 (1998). Section 1988 reads in relevant part: In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title LX of Public Law 92-318 [20 U.S.C.A. § 1681 58a et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs... 42 U.S.C.A. § 1988(b)(1998). As the plain language of Section 1988 indicates, plaintiffs are only entitled to fees in an “action” specifically enumerated in Section 1988. While plaintiffs in their petition refer offhandedly to this case as a Section 1983 case,! I can find no indication, either in the pleadings in this case or in the opinion rendered by Judge Roberts, indicating that this matter was “... [an] action... to enforce a provision of section(s]... 1983.” Plaintiffs’ onginal and amended complaint state causes of action under the First and Fifth Amendments (see Plaintiffs’ Amended Complaint at 7). Plaintiffs Motion for Summary Judgment challenges the Barr Amendment on First Amendment grounds. Neither the complaint nor the motion for summary judgment therefore specifically identify the cause of action as an action under one of the statutes enumerated in Section 1988. ! Plaintiffs state: “When, in cases such as this one, plaintiffs obtain relief on civil rights claims under 42 U.S.C. § 1983, the court must award them attorneys’ fees pursuant to 42 U.S.C. § 1988 unless special circumstances would render the award unjust.” (See Pls.” Mtn. Fees at 5) (emphasis added). 59a I cannot reach the merits of plaintiffs’ Section 1988 claim without first addressing the threshold issue of whether the case before me presents a cause of action under Section 1983, or any of the other statutes enumerated in Section 1988. I therefore will order that plaintiffs file a supplemental statement indicating whether the matter before me in fact States a cause of action under any of the statutes enumerated in Section 1988. The Board shall have an opportunity to respond to plaintiffs’ statement. Only after parties have briefed this issue can I reach the merits of plaintiff's petition insofar as it seeks fees against the Board. B. Award of Fees Against the United States Plaintiffs also assert a claim of attorneys’ fees against the United States pursuant to the Equal Access to Justice Act ("EAJA”), 42 US.C.A. § 2412(d)(1)(A) (1998). EAJA provides in relevant part: Except as otherwise provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . Incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. § 2412(d)(1)(A). The United States raises two jurisdictional hurdles to plaintiffs’ claim. First, they argue that plaintiffs’ fee petition is untimely and therefore the court lacks subject matter 60a jurisdiction over the petition. (United States’ Opp. at 5-10). Second, they argue that because the United States was not named as a defendant in this case, but rather intervened to defend the constitutionality of the Barr Amendment, the plain language of § 2412(d)(1)(A) of EAJA and 28 U.S.C.A. § 2403(a)(1998), the statute authorizing intervention, provide no basis for an award of fees against the United States. I will first consider the United States’ positional claim, and then address its Section 2403(a) and timing issues. 1. No Cause of Action Against the United States The United States argues that Section 2412(d)(1)(A) provides for fees and other expenses incurred in a civil action “brought... against the United States” and this suit is not an action against the United States because the United States was never named as a defendant. (U.S. Opp. at 10-11) (emphasis added). Rather, the United States argues, it was merely an intervenor and therefore the plain language of EAJA provides no authority for an award of fees against the Untied States. Id. Emphasizing its status as intervenor rather than defendant for the purposes of concluding that plaintiffs’ action is not an action against the United States is hair- splitting. Fed. R. Civ. P. 24(c) requires a party desiring to intervene to file a pleading “setting forth the claim or defense for which intervention is sought.” The rule obviously requires that the intervenor intervene as a party; a motion which seeks intervention solely to stay an action is insufficient. Further, the intervening party must file to intervene as a party plaintiff of defendant. Kamerman v. Steinberg, 681 F. Supp. 206,211 (S.D.N.Y. 1988). See also Williams & Humbert Ltd. v. W.& H. Trade Marks (Jersey) Ltd., 840 F.2d 72 , 75 (D.C. Cir. 1988) (intervening party 6la must tender legally sufficient claim or defense): Rhode Island Federation of Teachers, AFL-CIO vy. Norberg, 630 F.2d 850, 854-55 (1" Cir. 1980). Moreover, once intervention is permitted, the intervening plaintiff or defendant is a party to the lawsuit, bound by the judgment, and entitled to the same rights as the Original Parties. Alvarado v. J.C. Pennev Co., 997 F.2d 803, 805 (10 Cir. 1993). Thus, from the moment it intervened to the end of the lawsuit, the United States was a party defendant to this action just as if it had been originally sued. From the moment it intervened as of right and opposed the relief plaintiff sought, the action plaintiff brought was as “against the United States” as if plaintiff had originally sued the United States. To argue otherwise would ignore the reality that the United States entered this lawsuit as a party defendant and had that status from beginning to end. EAJA therefore expressly authorizes the fees plaintiffs seek. Furthermore, EAJA was enacted to remove financial disincentives for persons “defending against unjustified governmental action” and therefore “deter the unreasonable exercise of Government authority.” Ardestani v. I.N.S 502 U.S. 129, 138 (1991) (quoting Congressional Findings and Purposes, 94 Stat. 2325, note following 5 U.S.C. § 504; H.R.Rep. No. 96-1418, pp. 10, 12 (1980); S.Rep. No. 96- 253. supra, at 5; Commissioner, INS v. Jean, 496 U.S. 154, 163. (10 S.Ct. 2316. 2321, 110 L.Ed.2d 134 (1990)). Drawing a distinction in the interpretation of EAJA between the United States as original defendant and as intervening defendant is to draw a distinction that defeats EAJA’s purposes. 2. Scope of United States’ Liability 62a The United States also argues that 28 U.S.C.A. § 2403(a)( 1994) limits the government’s liability to court costs only. Section 2403(a) provides: In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. (emphasis added) The United States argues that the language of section 2403(a) necessarily excludes an award of attorneys’ fees under EAJA because the principle of expressio unius est exclusio alterius (the mention of one thing implies the exclusion of another thing) controls here. (U.S. Opp. at 12). The United States reads the phrase “subject to all liabilities of a party as to court costs” in 2403(a) as limiting the government’s liability here to court costs, and necessarily excluding the award of attorneys fees. Even assuming that the phrase “court costs” can be read narrowly to exclude attorneys’ fees, I cannot view 63a Section 2403(a) in a vacuum. Subsection (a) of Section 2403 was enacted when the law was initially passed, on June 25, 1948. 28 U.S.C. § 2403(a), ch. 646, 62 stat. 97] (1948). By contrast, the subsection of EAJA related to fees, subsection (d), was not enacted unti! 1980 by § 204(a) of Pub. L. 96- 481, effective October 1, 1981. 28 U.S.C. § 2412 (Supp. IV 1980).