Benjamin Lizardi v. Robert Wilkinson

986 F.3d 1294

Opinion

FILED FOR PUBLICATION FEB 9 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENJAMIN LIZARDI, No. 18-72576

Petitioner, Agency No. A205-530-611

v. ORDER ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

Before: THOMAS, Chief Judge, and SCHROEDER and BERZON, Circuit Judges.

The respondent’s motion to stay proceedings is DENIED. The respondent’s

motion for an extension of time to respond to petitioner Lizardi’s motion for

attorney’s fees is GRANTED. The response to the motion for fees is due February

25, 2021.

Lizardi’s motion for attorney’s fees under the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412(d)(1)(B), is not premature. Although judgment is not

yet final in this case until the time to seek certiorari expires, Zheng v. Ashcroft, 383

F.3d 919, 920 (9th Cir. 2004), Lizardi’s motion is nonetheless timely because he

has already “prevailed,” Auke Bay Concerned Citizen's Advisory Council v. Marsh, 779 F.2d 1391, 1393 (9th Cir. 1986). The EAJA grants parties a 120-day clock to

file for attorney’s fees after the filing of a disposition, not a 30-day clock beginning

after the certiorari deadline passes. See Zheng, 383 F.3d at 920–21; Li v. Keisler,

505 F.3d 913, 917 (9th Cir. 2007).

To receive an extension of time to respond to an attorney’s fees motion

based on the deadline for seeking certiorari, the government should indicate that it

is actually contemplating filing a petition for a writ of certiorari. As there is no

such indication here, we grant a more limited extension.