The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM AND ORDER Re: Motion to Intervene
In 1995, plaintiff Daniel Bernstein filed an action against the United
States Department of State seeking declaratory and injunctive relief from
enforcement of the Arms Export Control Act and the International Traffic
in Arms Regulations. After several years of litigation and a trip to the
Ninth Circuit, the case was resolved on summary judgment when on July
28, 2003, this court granted defendants' summary judgment motion on
plaintiff's second amended complaint, concluding that plaintiff lacked
standing. Now before the court is a motion to intervene by plaintiff's
former attorneys, McGlashan & Sarrail, the First Amendment Project, Lee
Tien, Cindy A. Cohn, and Robert Corn-Revere ("applicants"). Applicants
seek to recover attorneys' fees under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412. After having considered the parties'
arguments, and for the reasons stated herein, the court rules as
Bernstein is an associate professor in the Department of Mathematics,
Statistics, and Computer Science at the University of Illinois at
Chicago. His research interests include cryptography, a field of applied
mathematics that uses computer programs to encrypt electronic
communications. Encryption converts a set of data into code, and a strong
encryption system can ensure data integrity, authenticate users, link
messages to their senders, and maintain confidentiality. In June 1992,
Bernstein submitted source code for an encryption algorithm he called
"Snuffle," together with papers explaining the program, to the Department
of State. Under the then-current Arms Export Control Act ("AECA"),
22 U.S.C. § 2278, and the International Traffic in Arms Regulations
("ITAR"), 22 C.F.R. § 120-30, the Department of State determined that
"Snuffle" was a "defense article" subject to limited export of encryption
items and that it required a license for export under the United States
Munitions List ("USML"). Bernstein v. Dep't of Commerce, No. 95-0582
(N.D. Cal. July 28, 2003) (order granting defendant's motion for summary
In 1994, plaintiff entered into a Pro Bono Representation Agreement
("Agreement") with applicant McGlashan & Sarrail for the purposes of
seeking declaratory and injunctive relief against the United States. The
Agreement includes three clauses concerning the disposition of attorneys'
fees in the plaintiff's case. Section 2 of the Agreement provides:
2. Attorney's Fees. Our office will not bill you
for the legal services which we perform on your
behalf. We have decided to take this case on a pro
bono basis. We will, however, pursue the recovery
of attorneys fees, and costs and other expenses
under applicable law.
Section 7 further specifies:
7. Withdrawal or Termination. We and any other
attorney we have associated on this matter may
withdraw from your representation at any time after
giving you reasonable notice. You may also terminate
our services at any time. If we withdraw from
representing you or are terminated by you, we shall be
entitled, upon successful conclusion of the case, to
pursue the recovery of attorneys fees, under any
applicable law equal to the reasonable value of the
services we have performed up to the date of our
Agmt § 7 (emphasis in original). The Agreement also provides that
other associated attorneys have the right to seek recovery of attorneys'
5. Association of Other Attorneys. We may, at our
sole discretion and expense, associate any other
attorneys in the representation of your claim. The
terms of such association, if any, will be disclosed to you. Such associated
attorneys may also pursue recovery of attorneys
fees. At this time, it appears that Lee Tien and
also Shari Steele of the EFF will act as either
associated counsel or legal consultants.
The First Amendment Project and Robert Corn-Revere subsequently became
associated attorneys on plaintiff's case.
Plaintiff originally brought this action against the Department of
State seeking declaratory and injunctive relief from defendants'
enforcement of the AECA and the ITAR, contending that the export controls
were unconstitutional both on their face and as applied. After transfer
of enforcement responsibility to the DOC, several revisions to the
contested export regulations, years of litigation, and an appeal to the
Ninth Circuit,*fn2 the court held in July 2003 that plaintiff no longer
had standing in light of particular revisions to the export regulations
and several DOC advisory opinions; these advisory opinions informed
plaintiff that, because of the regulation revisions, he was no longer
subject to prosecution based on the export restrictions at issue.
Accordingly, the court entered summary judgment for the defendants on
July 28, 2003. Bernstein v. Dep't of Commerce, No. 95-0582 (N.D. Cal.
July 28, 2003) (Patel, C.J.).
Plaintiff filed a motion for reconsideration on August 6, 2003, which
this court denied on August 18, 2003. The period during which plaintiff
could have appealed the denial expired on October 17, 2003. See
Fed.R.App.P. 4(a)(1)(B) & 4(a)(4)(A)(iv). Thirty-one days later, on
November 17, 2003,*fn3 applicants filed an ex parte Miscellaneous
Administrative Request to Extend Time seeking to extend the deadline for
filing motions for attorneys' fees to December 15, 2003. The court
granted the request on November 21, 2003. On December 15, 2003, the
applicants 1) entered a stipulation with the parties extending the time to
file motions regarding applicants' eligibility for attorneys' fees,*fn4
and 2) moved to intervene under Federal Rule of Civil Procedure 24(a)(2)
as plaintiffs in the present action for the purposes of collecting
attorneys' fees under the EAJA, 28 U.S.C. § 2412. LEGAL STANDARD
Under Federal Rule of Civil Procedure 24, a non-party may move to
intervene in a federal action either as a matter of right or with the
court's permission. Fed.R.Civ.P. 24(a) & (b). To intervene as a matter
of right, a non-party must show: 1) that it has a significant protectable
interest relating to the property or transaction that is the subject of
the action; 2) that the disposition of the action may, as a practical
matter, impair or impede the applicants' ability to protect their
interest; 3) that the application is timely; and 4) that the existing
parties may not adequately represent the applicants' interest. S. Cal.
Edison Co. v. Lynch, 307 F.3d 794, 802 (9th Cir. 2002) (citing United
States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)); see
also League of United Latin Am. Citizens v. Wilson 131 F.3d 1297, 1302
(9th Cir. 1997) (holding that all four requirements must be satisfied).
Applicants have a "significant protectable interest" in an action if 1)
they assert an interest that is protected under some law, and 2) there is
a "relationship" between their legally protected interest and the
plaintiff's claims. S. Cal. Edison, 307 F.3d at 803 (citing Donnelly v.
Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). The interest at stake need
not be a specific legal or equitable interest, but the would-be
intervenor must be able to show "a protectable interest of sufficient
magnitude to warrant inclusion in the action." Smith v. Pangilinan,
651 F.2d 1320, 1324 (9th Cir. 1981).
Under the EAJA, a prevailing party has thirty days from the date of
final judgment in an action to file an application for attorneys' fees.
Section 2412(d)(1)(B) of the EAJA provides, in relevant part:
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 which shows that the party is a
prevailing party and is eligible to receive an award
under this subsection. . . .
A "final judgment" includes any "judgment that is final and not
appealable." 28 U.S.C. § 2412(d)(2)(G). The parties do not contest that
the judgment in this action became final on October 17, 2003. Rather, the
parties dispute whether the court may extend the EAJA thirty-day filing
deadline past November 17, 2003.
The court starts with the principle that the EAJA is a statute that
waives sovereign immunity. Auke Bay Concerned Citizen's Advisory Council
v. Marsh, 779 F.2d 1391, 1392-93 (9th Cir. 1986). Such waivers are
bounded by the explicit terms of the statute. See, e.g., Ardestani v.
INS, 502 U.S. 129, 137 (1991) (strictly construing the EAJA partial waiver of sovereign immunity
in favor of the United States according to the terms of the statute). In
this case, the EAJA's thirty-day limitation period for submitting fee
applications is jurisdictional. Yang v. Shalala, 22 F.3d 213, 216 n.4 (9th
Cir. 1994) (stating that EAJA thirty-day limitation is jurisdictional for
purposes of filing for attorneys' fees against an agency under
5 U.S.C. § 504); Auke Bay, 779 F.2d at 1393 (9th Cir. 1986) (holding that
the thirty-day limitation period under EAJA is jurisdictional).
"[A]litigant's failure to clear a jurisdictional hurdle can never be
`harmless' or waived by a court." Torres v. Oakland Scavenger Company,
487 U.S. 312. 317 n.3 (1988). Thus, a failure to file an application for
fees under the EAJA within thirty days of a final judgment deprives the
court of jurisdiction to consider an application for attorneys' fees.
See, e.g., Columbia Mfg. Corp. v. Nat'l Labor Relations Bd., 715 F.2d 1409
(9th Cir. 1983) (holding that, because the EAJA filing deadline was
jurisdictional, the NLRB was compelled to apply the thirty-day limit
strictly to fee applications under 5 U.S.C. § 504). Neither the court nor
the parties may create subject matter jurisdiction where none exists.
In this case, the applicants did not comply with the EAJA's
jurisdictional time limit. The last day for the applicants to file an
application for fees under the EAJA was November 17, 2003. On that date,
the applicants filed a Miscellaneous Administrative Request to Extend
Time for the purpose of allowing the applicants and the existing parties
to complete the meet and confer process required by Civil Local Rule
54-5.*fn5 While the court granted this request, it had no authority to
do so because the EAJA time limit is jurisdictional. For the same
reason, moreover, the parties could not stipulate to extend the
deadline. See id. at 1409. Thus, the applicants did not then and cannot
now file their application for fees within the jurisdictional time
The applicants argue that the court should equitably toll the EAJA
filing deadline. This court need not decide whether equitable tolling
would be available to extend the EAJA's jurisdictional time limit because
the applicants have not put forth a sufficient equitable basis for
invoking the doctrine. Equitable tolling generally applies when
"extraordinary circumstances beyond [applicants'] control made it
impossible to file the claims on time." Seattle Audubon Soc'y v.
Robertson, 931 F.2d 590, 595 (9th Cir. 1991), rev'd on other grounds.
503 U.S. 429 (1991). Courts apply the doctrine of equitable tolling
"sparingly." Scholar v. Pacific Bell, 963 F.2d 264, 268 (9th Cir. 1992).
Equitable tolling may apply "in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading
during the statutory period, or where the complainant has been induced or tricked by his adversary's
misconduct into allowing the filing deadline to pass." Irwin v. Dep't ...