Mercedez Carvajal v. United States

FILED
NOT FOR PUBLICATION NOV 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MERCEDEZ CARVAJAL, an individual, No. 08-56811
Plaintiff - Appellant, D.C. No. 2:05-cv-07124-PA-E
v.
MEMORANDUM *
UNITED STATES OF AMERICA,
Substituted as Defendant in place and
instead of individual Federal Defendants
Bett Kelly, Steven Norµus,III, David
Siµorra and Luµe Yoo,
Defendant - Appellee,
and
CITY OF LOS ANGELES; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted October 5, 2010
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CUDAHY,** WARDLAW and W. FLETCHER, Circuit Judges.
Mercedez Carvajal appeals the district court's denial of her motion for
attorneys' fees under the Equal Access to Justice Act ('EAJA'), 28 U.S.C. y 2412.
Carvajal asserts that the district court erred in concluding that she waived her right
to seeµ attorneys' fees in a joint stipulation entered by the parties. We have
jurisdiction pursuant to 28 U.S.C. y 1291, and we reverse.
As to four of the claims alleged in the complaint, the joint stipulation clearly
states that the claims will be dismissed with prejudice and that '[e]ach party shall
bear its own costs and attorney's fees in the District Court.' As to the four claims
dismissed with prejudice by the district court, the stipulation preserves Carvajal's
right to appeal and states that 'issues of costs on appeal and attorney's fees on
appeal are reserved by plaintiff Mercedez Carvajal and defendant United States
until the final completion of this action.' The stipulation does not address the
scenario that did in fact occur: Carvajal succeeded on appeal and the case was
remanded to the district court. Carvajal v. United States, 521 F.3d 1242, 1249 (9th
Cir. 2008). Thus, the district court erred in finding an unambiguous waiver of her
right to subsequently seeµ attorneys' fees in district court upon her return as the
prevailing party. Erdman v. Cochise County, 926 F.2d 877, 879-80 (9th Cir.
**
The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, sitting by designation.
1991); Mucµleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695, 698
(9th Cir. 1989).
In any event, the parties liµely did not understand Carvajal to have waived
her right to attorneys' fees and costs in the district court as to the claims she
appealed because, when she entered the joint stipulation, she was not then the
prevailing party and thus had no right to fees to waive. See 28 U.S.C.
y 2412(d)(1)(A) (stating that 'a court shall award to a prevailing party other than
the United States fees and other expenses'); Carvajal, 521 F.3d at 1249 ('To
satisfy the 'prevailing party' requirement, Plaintiff must be able to show that she
received 'relief from the federal court.'' (quoting Li v. Keisler, 505 F.3d 913, 917
(9th Cir. 2007))). Because Carvajal did not become entitled to attorneys' fees until
she succeeded on appeal, the joint stipulation was not liµely understood to contain
a waiver of her right to seeµ them. See United States v. Perez, 116 F.3d 840, 845
(9th Cir. 1997) (en banc) (defining waiver as the 'intentional relinquishment or
abandonment of a µnown right' (quoting United States v. Olano, 507 U.S. 725,
733 (1993))).
REVERSED and REMANDED with instructions to award attorneys' fees
and costs in an amount to be determined.
FILED
08-56811 Carvajal v. USA NOV 30 2010
MOLLY C. DWYER, CLERK
Cudahy, Senior Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
The language of the stipulated waiver of fees in the District Court is clear
and unambiguous and I see no basis for interpretation or modification based on
subsequent events on appeal. I therefore respectfully dissent.