Mercedez Carvajal v. United States

FILED

NOT FOR PUBLICATION NOV 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

MERCEDEZ CARVAJAL, an individual, No. 08-56811

Plaintiff - Appellant, D.C. No. 2:05-cv-07124-PA-E

v.

MEMORANDUM *

UNITED STATES OF AMERICA,

Substituted as Defendant in place and instead of individual Federal Defendants Bett Kelly, Steven Norµus,III, David Siµorra and Luµe Yoo,

Defendant - Appellee,

and

CITY OF LOS ANGELES; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted October 5, 2010 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: CUDAHY,** WARDLAW and W. FLETCHER, Circuit Judges.

Mercedez Carvajal appeals the district court's denial of her motion for

attorneys' fees under the Equal Access to Justice Act ('EAJA'), 28 U.S.C. y 2412.

Carvajal asserts that the district court erred in concluding that she waived her…

Mercedez Carvajal appeals the district court’s denial of her motion for attorneys’ *107 fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 . Carvajal asserts that the district court erred in concluding that she waived her right to seek attorneys’ fees in a joint stipulation entered by the parties. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse.

As to four of the claims alleged in the complaint, the joint stipulation clearly states that the claims will be dismissed with prejudice and that “[e]ach party shall bear its own costs and attorney’s fees in the District Court.” As to the four claims dismissed with prejudice by the district court, the stipulation preserves Carvajal’s right to appeal and states that “issues of costs on appeal and attorney’s fees on appeal are reserved by plaintiff Mercedez Carvajal and defendant United States until the final completion of this action.” The stipulation does not address the scenario that did in fact occur: Carvajal succeeded on appeal and the case was remanded to the district court. Carvajal v. United States, 521 F.3d 1242, 1249 (9th Cir.2008). Thus, the district court erred in finding an unambiguous…

dissenting:

The language of the stipulated waiver of fees in the District Court is clear and unambiguous and I see no basis for interpretation or modification based on subsequent events on appeal. I therefore respectfully dissent.