Free Motion for Attorney Fees - District Court of Federal Claims - federal

Case 1:00-cv-00428-CCM

Document 117

Filed 06/12/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

INTERNATIONAL AIR RESPONSE, 22000 South Price Road Chandler, Arizona 85248, Plaintiff, vs. THE UNITED STATES, Defendant.

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Case No. 00-428C (Assigned to the Honorable Christine O.C. Miller)

E-Filed June 12, 2007

PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES Plaintiff IAR submits this Application out of an abundance of caution to ensure its timeliness. The relevant facts are as follows: 1. matter. 2. On May 9, 2007, the Government filed a Notice of Appeal from the March On March 12, 2007, the Court issued an Order in favor of IAR in this

12, 2007 ruling. 3. IAR's ability to request attorneys' fees and costs under the EAJA, 28

U.S.C. § 2412(d)(1)(A) must be filed within "thirty days of final judgment in the action." Id. § 2412(d)(1)(B). 4. The EAJA defines a "final judgment" as a judgment that is "not

appealable." Id. § 2412(d)(2)(G). Courts have routinely interpreted this provision to mean that the thirty-day period does not run while an appeal is pending. See, e.g., Pierce v. Barnhart, 440 F.3d 657, 661-62 (5th Cir. 2006) (good discussion). 1
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Case 1:00-cv-00428-CCM

Document 117

Filed 06/12/2007

Page 2 of 2

5.

An application for fees under the EAJA may be filed prior to the entry of

final judgment. See, e.g., Gonzalez v. United States, 44 Fed. Cl. 764, 767 (1999). 6. Because the Government's appeal has not yet been resolved or dismissed,

IAR files this application out of an abundance of caution should there be further clarification or alteration of the rules governing the timeliness of EAJA fee petitions. There is no need for the Court to act on this Application, or for the Government to respond to it, prior to resolution of the Government's appeal and subsequent supplementation by IAR of this Application. Respectfully submitted,

Date: June 12, 2007

By: s/ Randy Papetti Randy Papetti Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 602-262-5337 Telephone 602-734-3865 Facsimile Attorney of Record for Plaintiff International Air Response

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