Hajro et al v. United States Citizenship and Immigration Services et al

Filing 98

NOTICE OF WITHDRAWAL OF PLAINTIFFS' ALTERNATIVE MOTION FOR ATTORNEY'S FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT 28 U.S.C § 2412(d) AND ORDER, granting 97 Notice (Other) filed by James R. Mayock, Mirsad Hajro. Signed by Judge Paul S. Grewal on 6/13/2012. (ofr, COURT STAFF) (Filed on 6/13/2012)

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Kip Evan Steinberg (SBN 096084)
LAW OFFICES OF KIP EVAN STEINBERG
Courthouse Square
1000 Fourth Street, Suite 600
San Rafael, CA 94901
Telephone: [phone]
Facsimile: 415-456-1921
[e-mail]

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Attorney for Plaintiffs MIRSAD HAJRO and JAMES R. MAYOCK

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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)
)
Plaintiffs,
) No. C 08-1350 PSG
)
v.
)
UNITED STATES CITIZENSHIP
)
AND IMMIGRATION SERVICES,
)
T. DIANE CEJKA, Director
) Notice Of Withdrawal Of
USCIS National Records Center,
) Plaintiffs’ Alternative
ROSEMARY MELVILLE,
) Motion For Attorney’s Fees
USCIS District Director of San Francisco,
) And Costs Under The Equal
MICHAEL CHERTOFF, Secretary
) Access To Justice Act
Department of Homeland Security,
) 28 U.S.C. § 2412(d)
MICHAEL B. MUKASEY, Attorney General
) And [Proposed] Order
Department of Justice
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)
Defendants
)
________________________________________________)
On June 5, 2012, Plaintiffs filed a Motion For Attorney’s Fees And Costs

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Pursuant To the Freedom Of Information Act (“FOIA”)(5 U.S.C. § 552(A)(4)(E)

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and, alternatively, under the Equal Access To Justice Act (“EAJA”) (28 U.S.C. §

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2412(d)) (Dkt.93 and 94). Plaintiffs now withdraw the alternative motion for

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attorneys’ fees and costs under EAJA after determining that the EAJA motion

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was premature.

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MIRSAD HAJRO, JAMES R. MAYOCK

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Hajro v. USCIS C 08-1350 PSG
Pl. Withdrawal of Alternative EAJA Motion

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EAJA states “A party seeking an award of fees and other expenses shall,

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within thirty days of final judgment in the action, submit to the court an

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application for fees and other expenses...” 28 U.S.C. § 2412(d)(1)(B). The term

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“final judgment” is defined in the statute as “a judgment that is final and not

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appealable”. 28 U.S.C. § 2412(d)(2)(G). (“[W]e...construe the Act’s definition of

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‘final judgment’ as designating the date on which a party’s case has met its

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final demise, such that there is no longer any possibility that the district

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court’s judgment is open to attack.” (internal punctuation omitted) Al-Harbi v.

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INS, 284 F.3d 1080, 1084 (9th Cir. 2002). Since the Court’s decision in this

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case is currently on appeal in the Ninth Circuit, the judgment is not yet “final”

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and therefore the filing of the alternative EAJA motion was premature.

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Plaintiffs’ counsel apologizes for any confusion caused by this incorrect filing.

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However, no such rule applies to a motion for attorney’s fees and costs

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under FOIA. Therefore, Plaintiffs’ motion for attorney’s fees and costs under

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FOIA (5 U.S.C. § 552(A)(4)(E)) should remain on calendar for a hearing on July

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24, 2012 at 10 a.m.

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Dated: June 9, 2012

Respectfully submitted,

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_________/s/______________
Kip Evan Steinberg
Attorney for Plaintiffs

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Hajro v. USCIS C 08-1350 PSG
Pl. Withdrawal of Alternative EAJA Motion

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[Proposed] Order

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Plaintiffs’ alternative motion for attorney’s fees and costs under the Equal

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Access To Justice (28 U.S.C. § 2412(d)) is withdrawn. Plaintiffs’ motion for

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attorney’s fees and costs under the Freedom Of Information Act (“FOIA”)(5

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U.S.C. § 552(A)(4)(E) remains on the Court’s calendar for July 24, 2012 at 10

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a.m.

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IT IS SO ORDERED.

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DATED:

______________________
Paul S. Grewal
United States Magistrate Judge

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Hajro v. USCIS C 08-1350 PSG
Pl. Withdrawal of Alternative EAJA Motion

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