Benjamin Lizardi v. Robert Wilkinson

FILED
FOR PUBLICATION
FEB 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN LIZARDI, No. 18-72576
Petitioner, Agency No. A205-530-611
v.
AMENDED ORDER
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit
Judges.
The respondent’s motion to stay proceedings is DENIED. The respondent’s
motion for an extension of time to respond to petitioner Lizardi’s motion for
attorney’s fees is GRANTED. The response to the motion for fees is due February
25, 2021.
Lizardi’s motion for attorney’s fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d)(1)(B), is not premature. Under the EAJA, the
deadline to file for attorney’s fees is 30 days after a final judgment–that is, 30 days
after the date when a petition for a writ of certiorari would be untimely. Zheng v.
Ashcroft, 383 F.3d 919, 920 (9th Cir. 2004); Li v. Keisler, 505 F.3d 913, 916–17
(9th Cir. 2007). However, a party need not wait until the judgment is final to move
for attorney’s fees. Auke Bay Concerned Citizen's Advisory Council v. Marsh, 779
F.2d 1391, 1393 (9th Cir. 1986). Lizardi’s motion is timely because he has already
“prevailed.” Id.To receive an extension of time to respond to an attorney’s fees motion
based on the deadline for seeking certiorari, the government should indicate that it
is actually contemplating filing a petition for a writ of certiorari. As there is no
such indication here, we grant a more limited extension.
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