Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

Document 124

Filed 09/02/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

RESPONSE TO PLAINTIFF FRANCISCO JAVIER RIVERA AGREDANO'S APPLICATION FOR AND AWARD OF REASONABLE ATTORNEY FEES AND EXPENSES UNDER 28 U.S.C. SECTION 2412(b) AND/OR (d) Pursuant to Rule 54(d)(2)(D) of the Rules of the United States Court of Federal Claims ("RCFC"), defendant, the United States, respectfully submits this response to plaintiff Francisco Javier Rivera Agredano's ("Mr. Agredano") application for fees and other expenses, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the reasons stated below, defendant respectfully requests that this Court dismiss, without prejudice, plaintiff's the request. Plaintiff's request is premature. A final judgment has been entered in this case for purposes of closing this Court's docket, but that judgment has not yet become "final" for EAJA purposes. A party seeking an award pursuant to EAJA must submit its application "within thirty days of final judgment in the action." 28 U.S.C. § 2412(d)(1)(B). The Act defines "final judgment" as "a judgment that is final and not appealable[.]" 28 U.S.C. § 2412(d)(2)(G). See also Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991) (explaining that "the EAJA filing period should be deemed to begin only after the time for taking an appeal from the district court judgment had expired"). Both parties have filed notices of appeal in this action. See Dkt. Nos. 119, 120. Accordingly, all issues remain open in this case, and neither party has attained the prerequisite

Case 1:05-cv-00608-ECH

Document 124

Filed 09/02/2008

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"prevailing party" status for an award of fees and expenses pursuant to EAJA. Even assuming it were permissible under the statute, to proceed upon the merits of Mr. Agredano's application at this point would be a waste of the Court's and the parties' time and resources. We therefore respectfully request that the plaintiff's application be dismissed, without prejudice, until appellate proceedings in this matter have concluded.

Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit, 8th Floor Washington, DC 20530 Tel. (202) 616-0170 Fax. (202) 305-7644 September 2, 2008 Attorneys for Defendant

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Case 1:05-cv-00608-ECH

Document 124

Filed 09/02/2008

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CERTIFICATE OF FILING I hereby certify that on September 2, 2008, a copy of the foregoing "RESPONSE TO PLAINTIFF FRANCISCO JAVIER RIVERA AGREDANO'S APPLICATION FOR AND AWARD OF REASONABLE ATTORNEY FEES AND EXPENSES UNDER 28 U.S.C. SECTION 2412(b) AND/OR (d)" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. The parties may access this filing through the Court's system.

s/ Devin A. Wolak