Xuan Li Zheng v. John Ashcroft, Attorney General
Opinion
Opinion
ORDER
Petitioner Zheng moved on July 1, 2004, for an award of attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d). Respondent, the federal government, argues that the motion is untimely and must be dismissed. We agree that the motion is untimely, but for reasons explained below, we deny the motion rather than dismissing it.
After a “final judgment,” a petitioner has thirty days to file a motion for attorney’s fees under the EAJA. Id. We have interpreted “final judgment” for EAJA purposes as the date on which a petition for certiorari would be untimely. See Al-Harbi v. INS, 284 F.3d 1080, 1083-1085 (9th Cir.2002). A party has ninety days to file a petition for certiorari after “the date of entry of the judgment or order sought to be reviewed.”
See Sup.Ct. R. 13(3). For this reason, EAJA’s 120-day clock begins to tick when our judgment or order is issued. For purposes of this case, that clock began ticking February 24, 2004, when we issued our memorandum disposition. See Zheng v. Ashcroft, 89 Fed.Appx. 76 (9th Cir.2004) (unpublished). The 120 days to file a motion seeking attorney’s fees under EAJA expired on June 23, 2004.