Choate v. U.S. Army Corps of Engineers

Full title: GUY CHOATE and JEFFREY RICKMAN PLAINTIFFS v. UNITED STATES ARMY CORPS OF…

Court: United States District Court, E.D. Arkansas, Western Division

Date published: Jan 28, 2009

4:07-CV-01170-WRW (E.D. Ark. Jan. 28, 2009)

Opinion

4:07-CV-01170-WRW.

January 28, 2009

ORDER

WILLIAM WILSON JR., District Judge

Pending is Plaintiff's Motion for Attorney Fees and Costs (Doc. No. 63). Defendants have responded.¹

1 Doc. No. 69.

I. BACKGROUND

II. DISCUSSION

^{2 3 4} 28 U.S.C. § 2412 ⁵

2 Doc. No. 52.

3 Doc. No. 54.

4 Doc. No. 69.

5 Doc. No. 64.

Under the EAJA, a prevailing party "seeking an award of fees and other expenses" must do so "within thirty days of final judgment in the action. . . ."⁶ The EAJA defines a final judgment as "a judgment that is final and not appealable. . . ."⁷ Since the November 5, 2008, Order was appealable (and has been appealed) a final judgment has not been entered in this case. Accordingly, Plaintiffs' motion is premature.⁸

6 28 U.S.C.A. § 2412(d)(1)(B).

7 28 U.S.C.A. § 2412(d)(2)(G).

8 See Harmon v. U.S. Through Farmers Home Admin, 101 F.3d 574, 587 (8th Cir. 1996) (holding that when a motion for fees is filed before a final judgment, the Court should refrain from ruling on "the question of attorney fees until the litigation is final for purposes of the EAJA").

CONCLUSION

Because final judgment has not been entered, Plaintiffs' Motion for Attorney Fees and Costs is premature, and is DENIED without prejudice. The motion may be refiled once a final judgment is entered.

IT IS SO ORDERED.