Sasetharan Arulampalam v. Alberto Gonzales, Attorney General

399 F.3d 1087 Sasetharan ARULAMPALAM, Petitioner, v. Alberto GONZALES, * Attorney General, Respondent. No. 02-71267. United States Court of Appeals, Ninth Circuit. Filed March 1, 2005. Judith L. Wood and Jesse A. Moorman, Law Office of Judith L. Wood, Los Angeles, CA, for the petitioner. Francis W. Fraser, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent. Before PREGERSON, FERNANDEZ, and BERZON, Circuit Judges. 1 Order; Concurrence by Judge FERNANDEZ. ORDER 2 When this case was last before us, petitioner Sasetharan Arulampalam's petition for review was granted and the matter was remanded to the Board of Immigration Appeals for further proceedings. See Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir.2003). On April 6, 2004, we denied respondent's petition for rehearing. On August 9, 2004, Arulampalam filed a motion for attorney's fees. Concerned that the motion was untimely, we requested briefing from the parties on the issue of timeliness. We now conclude that Arulampalam's motion, to be timely, should have been filed, rather than mailed, on or before August 4, 2004, 120 days after our denial of the petition for…

Order; Concurrence by Judge FERNANDEZ.

ORDER

When this case was last before us, petitioner Sasetharan Arulampalam’s petition for review was granted and the matter was remanded to the Board of Immigration Appeals for further proceedings. See Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir.2003). On April 6, 2004, we denied respondent’s petition for rehearing. On August 9, 2004, Arulampalam filed a motion for attorney’s fees. Concerned that the motion was untimely, we requested briefing from the parties on the issue of timeliness. We now conclude that Aru-lampalam’s motion, to be timely, should have been filed, rather than mailed, on or before August 4, 2004, 120 days after our denial of the petition for rehearing.

DISCUSSION

The relevant provision of the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (d)(1)(B) states that: “A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses.... ” We have held that “the 30-day period during which an applicant can file for EAJA fees begins to run only after the 90-day time for filing a petition for writ of certiorari…

concurring:

I concur in the first three paragraphs, in the last two paragraphs, and in the result. Thus, I join in those portions of the Order.