Stephen Yagman v. Erwin Meinberg

FILED
NOT FOR PUBLICATION MAR 14 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN YAGMAN, No. 15-56318
Petitioner-Appellant, D.C. No. 2:10-cv-05860-SVW
v.
MEMORANDUM*
ERWIN MEINBERG,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Stephen Yagman appeals pro se from the district court’s judgment and
challenges the denial of his motion for attorney’s fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, and motions for sanctions. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Even if, as Yagman contends, the district court erred by dismissing his
motions for attorney’s fees and for sanctions as moot, we need not remand for
further proceedings because his motions fail on their merits. See Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008) (we may affirm on any ground
supported by the record).
Yagman contends he is a prevailing party under the EAJA because his
habeas petition resulted in the Bureau of Prisons vacating the challenged
disciplinary hearing. This action, however, was voluntarily undertaken by the
Bureau of Prisons and the habeas petition was ultimately dismissed as moot.
Accordingly, Yagman is not a prevailing party for purposes of the EAJA. See
Buckhannon Bd. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05
(2001); see also Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt.,
589 F.3d 1027, 1031 (9th Cir. 2009) (“To receive what one sought is not enough to
prevail: the court must require one’s opponent to give it.”).
Yagman next contends that the Respondent’s argument, made in opposition
to his motion for attorney’s fees, that Yagman’s habeas petition is not a “civil
action” for purposes of the EAJA is sanctionable under either 28 U.S.C. § 1927,
Rule of Civil Procedure 11, or the court’s inherent authority. We disagree. The
record demonstrates that this argument was not frivolous, vexatious, or otherwise
2 15-56318
brought in bad faith.
In light of this disposition, Yagman’s request for costs on appeal, set forth in
his opening brief, is denied. Yagman’s request for sanctions to be imposed against
appellee on appeal, set forth in his reply brief, is denied.
AFFIRMED.
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