Front Range Nesting Bald Eagle Studies v. United States Fish and Wildlife Service

          ORDER GRANTING MOTION TO RECONSIDER

          William J. Martinez United States District Judge.

         Under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), a prevailing party has thirty days from “final judgment” (defined to mean “a judgment that is final and not appealable”) to file a motion for attorneys' fees. See id. § 2412(d)(1)(B) & (d)(2)(G). This case became “not appealable” on March 26, 2019, when the Tenth Circuit issued its mandate. (ECF No. 69.) Twenty-nine days later, Plaintiff filed a motion for attorneys' fees (“EAJA Motion”). (ECF No. 70.) That same day, Plaintiff also filed its Motion to Hold in Abeyance Further Proceedings in Connection with Petitioner's Motion for Attorneys' Fees and Costs (“Motion to Stay”). (ECF No. 71.)

         Later that day, the Court issued an order that reads, in relevant part, as follows:

The Motion to Stay explains that the EAJA Motion “was filed to avoid any possible issue regarding the motion's timeliness, ” but that the parties desire “an opportunity to explore the possibility of settling the fee issue without further involvement by the Court.” But, “[s]hould settlement negotiations prove unsuccessful, [Plaintiff] will file an amended [EAJA Motion], as well as additional or amended supporting documentation.” Under the circumstances described, such an amended motion would not be permissible as of right. Nonetheless, the Court would likely permit it. If success of settlement discussions would moot the original EAJA Motion and failure would lead to an amended motion, there is no need for an original motion and then to hold proceedings in abeyance. It is simpler to extend the deadline for filing an EAJA motion. Accordingly, the EAJA Motion is DENIED WITHOUT PREJUDICE as premature, the Motion to Stay is DENIED AS MOOT, and the Court sua sponte extends Plaintiff's deadline to file an EAJA motion until July 23, 2019.

(ECF No. 72 (citations omitted; some formatting removed).)

         Even later that same day, Plaintiff filed the motion currently before the Court requesting reconsideration (“Motion to Reconsider”). (ECF No. 73.) Plaintiff argues that the EAJA is a waiver of sovereign immunity and so courts construe its thirty-day deadline strictly. (Id. at 2.) “Because of this strict deadline, ” Plaintiffs say,

[parties] seeking fees under EAJA routinely file the sort of “placeholder” motion that Petitioner filed here on April 24, 2019. The “placeholder” motion is a common way of proceeding in cases such as this one because a timely-filed fee motion under EAJA can be later amended to relate back to the original filing date. This allows the parties time for negotiation and for the often time-consuming process of obtaining necessary approvals from different agencies and supervisors, and normally results in the parties settling fees-while at the same time ensuring that the fee motion is unambiguously “timely filed” under EAJA.

(Id. at 2-3.) Plaintiff accordingly requests that the Court vacate its order extending the EAJA deadline, reinstate the original EAJA Motion, and grant the Motion to Stay. (Id. at 3.)

         The Court then entered the following order calling for Defendants' response:

The thirty-day deadline in 28 U.S.C. § 2412(d)(1)(B) is a claim-processing rule, not a jurisdictional requirement. Scarborough v. Principi, 541 U.S. 401, 413-14 (2004). At a minimum, then, it may be waived by the Government. See, e.g., Vasquez v. Barnhart, 459 F.Supp.2d 835, 836 (N.D. Iowa 2006). If it may be waived by the Government, it follows that the Government may agree to extend the deadline. If the Court understands Plaintiff correctly, however, the lingering worry is that the attorneys' fees provision is nonetheless a waiver of sovereign immunity and so, although the thirty-day deadline may be waived or extended by the Government, the Court itself may not grant an extension, at least not over the Government's objection. Scarborough suggests otherwise. See 541 U.S. at 420-23. But rather than tackling that question, the Court DIRECTS the Government to respond to Plaintiff's [Motion to Reconsider] no later than Monday, April 29, 2019, stating whether it opposes a 90-day extension of the deadline set forth in 28 U.S.C. § 2412(d)(1)(B).

(ECF No. 74 (some formatting removed).)

         The Court has received Defendants' response. (ECF No. 75.) Quite remarkably, they will not consent to a 90-day extension of the EAJA deadline because they prefer this bizarre dance of a motion for fees accompanied by a motion for stay, followed by settlement discussions, followed by a supplemental motion if needed:

[Plaintiff's] preferred approach of filing a “placeholder” motion, with briefing on the motion stayed to permit settlement discussions regarding fees, is a common approach utilized in EAJA litigation. The United States regularly does not oppose this approach. . . .

Expanding a Congressional waiver of sovereign immunity on a case-by-case basis is not done lightly. Given that there is an alternative procedural mechanism by which Petitioner can pursue fees under EAJA, there is no compelling reason to expand ...