Sasetharan Arulampalam, Petitioner, v. Alberto Gonzales,* Attorney General, Respondent, 399 F.3d 1087 (9th Cir. 2005)

Order; Concurrence by Judge FERNANDEZ.

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 further 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 petition 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 petition 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 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, 158 L. Ed. 2d 674 (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 propose 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 interpreting 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 Citizen'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 attorney'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 adjudication, 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 significant and discrete substantive portion of that proceeding, 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).

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 "submission" in Lord Jim's v. NLRB, 772 F.2d 1446 (9th Cir. 1985), noting that:

The EAJA requires only that a party seeking attorney'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 

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 evidence 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 evidentiary 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, jurisdictional, 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 `jurisdictional'"), we find no compelling reason to interpret "submit" differently from "file" for purposes of 28 U.S.C. § 2412(d) (1) (B)'s deadline. Cf. Grivois v. Brown, 7 Vet. App. 100, 101 (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 judgment." (citing Lord Jim's)). We therefore deny Arulampalam'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 Circuit Rule 39-1.6 ("the Rule"), the "alternative motion is clearly untimely." We agree.

The Rule states in relevant part: "Absent a statutory provision to the contrary, a request for attorneys fees ... shall be filed with the Clerk ... within 14 days after the court's disposition of [a petition for rehearing]." Arulampalam relies on McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), to establish 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 reasonableness 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 of Employment Sec., 455 U.S. 445, 454, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (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 paragraphs, and in the result. Thus, I join in those portions of the Order.