Arulampalam v. Ashcroft ( 2005 )

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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