Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Resrvation v. Department of Interior
Opinion
Opinion
Shubb, J.
MEMORANDUM AND ORDER
The court heard oral argument on August 19, 1991 on plaintiff’s application for attorney fees under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412 . Defendants opposed the application on two grounds. First, defendants contend plaintiff’s application is premature because defendants have appealed. Second, defendants argue that even if the application is timely, an award of fees is not appropriate because the position of defendants was “substantially justified.”
DISCUSSION
A. Timeliness
On August 5, 1991, the defendants filed a notice of appeal as to the court’s judgment and order filed June 7, 1991, (Utu Utu Gwaitu Paiute Tribe v. Dept. of Interior, 766 F.Supp. 842 , 91 D.A.R. 7341 (E.D.Cal.1991)), and the court’s previous order filed December 7, 1990. Under the EAJA,
28 U.S.C. § 2412 (d)(1)(B) (emphasis added). In 1985, when it reenacted the EAJA, Congress defined “final judgment” as “a judgment that is final and not appeal-able....” 28 U.S.C. § 2412 (d)(2)(G). A “final judgment” for purposes of the EAJA, is a judgment which is “no longer contestable through the appellate process.” Shultz v. Crowley, 802 F.2d 498, 511 (D.C.Cir.1986), cert.…