United States District Court, D. Colorado
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 ...