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NOT FOR PUBLICATION NOV 30 2010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 right

to seeµ attorneys' fees in a joint stipulation entered by the parties. We have

jurisdiction pursuant to 28 U.S.C. y 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 waiver of her

right to subsequently seeµ attorneys' fees in district court upon her return as the

prevailing party. Erdman v. Cochise County, 926 F.2d 877, 879-80 (9th Cir.

** The Honorable Richard D. Cudahy, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. 1991); Mucµleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695, 698

(9th Cir. 1989).

In any event, the parties liµely did not understand Carvajal to have waived

her right to attorneys' fees and costs in the district court as to the claims she

appealed because, when she entered the joint stipulation, she was not then the

prevailing party and thus had no right to fees to waive. See 28 U.S.C.

y 2412(d)(1)(A) (stating that 'a court shall award to a prevailing party other than

the United States fees and other expenses'); Carvajal, 521 F.3d at 1249 ('To

satisfy the 'prevailing party' requirement, Plaintiff must be able to show that she

received 'relief from the federal court.'' (quoting Li v. Keisler, 505 F.3d 913, 917

(9th Cir. 2007))). Because Carvajal did not become entitled to attorneys' fees until

she succeeded on appeal, the joint stipulation was not liµely understood to contain

a waiver of her right to seeµ them. See United States v. Perez, 116 F.3d 840, 845

(9th Cir. 1997) (en banc) (defining waiver as the 'intentional relinquishment or

abandonment of a µnown right' (quoting United States v. Olano, 507 U.S. 725,

733 (1993))).

REVERSED and REMANDED with instructions to award attorneys' fees

and costs in an amount to be determined.

FILED

08-56811 Carvajal v. USA NOV 30 2010

MOLLY C. DWYER, CLERK

Cudahy, Senior Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

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.