Benjamin Lizardi v. Robert Wilkinson

Opinion

FILED FOR PUBLICATION FEB 10 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. AMENDED 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. Under the EAJA, the

deadline to file for attorney’s fees is 30 days after a final judgment–that is, 30 days

after the date when a petition for a writ of certiorari would be untimely. Zheng v.

Ashcroft, 383 F.3d 919, 920 (9th Cir. 2004); Li v. Keisler, 505 F.3d 913, 916–17 (9th Cir. 2007). However, a party need not wait until the judgment is final to move

for attorney’s fees. Auke Bay Concerned Citizen's Advisory Council v. Marsh, 779

F.2d 1391, 1393 (9th Cir. 1986). Lizardi’s motion is timely because he has already

“prevailed.” Id.

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.