United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2939

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Susan Sherry Sabhari; *

Ali Abdulla Sabhari, *

*

Appellants, *

*

v. * Appeal from the United States

* District Court for the

Denise Frazier, District Director, * District of Minnesota.

Citizenship and Immigration Services; *

Eduardo Aguirre, Director, Citizenship * [UNPUBLISHED]

and Immigration Services; Michael *

Chertoff, Secretary, Department of *

Homeland Security; Alberto Gonzales, *

United States Attorney General, *

*

Appellees. *

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Submitted: May 13, 2010

Filed: July 26, 2010

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Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Susan and Ali Sabhari appeal the district court's determination that their request

for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,

was untimely. We reverse and remand for further proceedings.
After extensive litigation dating back to 1997, the Sabharis succeeded in

obtaining relief against the United States Citizenship and Immigration Services

(USCIS) when the district court directed the government to grant a Form I-130 visa

petition recognizing the validity of the couple's marriage. The government appealed

the district court's decision, however, then asked for a number of extensions of time

in which to file an opening brief while awaiting authorization from the Solicitor

General to proceed with the appeal. This prompted the Sabharis to file a motion to

dismiss the appeal on the grounds it was unauthorized. In the alternative, the Sabharis

asked this court to summarily affirm the district court.

While the Sabharis' motion to dismiss/summarily affirm was pending, the

government filed a motion to dismiss its appeal, voluntarily, pursuant to Rule 42(b)

of the Federal Rules of Appellate Procedure. This court granted the government's

motion and entered a final judgment.

Within 120 days of the final judgment, the Sabharis filed an application in this

court requesting an award of fees under the EAJA. The government moved to dismiss

the fee petition contending it was untimely because it had not been filed within thirty

days of the judgment dismissing the appeal. See 28 U.S.C. § 2412(d)(1)(B) ("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[.]"). In its motion, the government argued the Sabharis did not obtain the

benefit of the additional ninety days in which to file a petition for a writ of certiorari

with the Supreme Court because they did not appeal the district court's decision and

were therefore precluded from filing a petition for a writ of certiorari.

The Sabharis opposed the government's motion, contending they had the right

to seek review in the Supreme Court because their motion to dismiss and/or for

summary affirmance was still pending at the time this court entered final judgment,

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and their rights were adversely affected when we failed to address their motion. The

Sabharis claimed:

[b]y granting Defendants' motion for dismissal and not adjudicating the

Sabharis' motion, this Court did not address the legal issues of whether

Defendants' appeal was frivolous and unauthorized, or whether the

federal district court's decision was legally sound based on the applicable

law and facts. The Sabharis certainly preferred a circuit court precedent

on these crucial issues [because they are relevant in deciding whether

prevailing parties are entitled to fees under EAJA]. As such, they had

the option to pursue this matter further with the Supreme Court.

The Sabharis argued their petition was timely because it was filed within 120

days of the final judgment, i.e., thirty days plus the additional ninety days in which to

file a petition for a writ of certiorari. See Impresa Contsruzioni Geom. Domenico

Garufi v. United States, 531 F.3d 1367, 1372-72 (Fed. Cir. 2008) (concluding the

ninety days for filing a petition for a writ of certiorari is included in the time for filing

an EAJA fee request even in situations where an appeal in a circuit court is voluntarily

dismissed); see also 28 U.S.C. 1254(1) (stating "any party" can petition for a writ of

certiorari from "[c]ases in the courts of appeals"); Latham v. United States, 527 F.3d

651, 652-53 (7th Cir. 2008) ("Section 1254 . . . allows 'any' party, including a

prevailing party, to petition for certiorari. It also allows review whether or not a court

of appeals has issued a final decision. All that is necessary is that a case be 'in' the

court of appeals.") (emphasis added).

After considering the arguments presented by both sides, we denied the

government's motion to dismiss the fee request, effectively deciding the request was

timely. This court went on to address the fee request on the merits. It was determined

the Sabharis were not entitled to the fees they incurred at the appellate court level. 

The matter was remanded to the district court, however, to consider whether the

Sabharis were entitled to the fees incurred in the district court proceedings.

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Instead of addressing the merits of the Sabharis' fee request on remand, the

district court concluded the fee request was untimely. The district court determined

the Sabharis were not entitled to include the additional ninety days in which to file a

petition for a writ of certiorari within the time period for filing their EAJA fee request

because "neither party had a right to file a petition for a writ of certiorari." Sabhari

v. Frazier, Civ. No. 06-196, 2008 WL 2152205, at *1 (D. Minn. May 21, 2008).

The Sabharis filed a timely appeal of the district court's decision. On appeal,

they renew their argument they had the right to petition the Supreme Court for review

of our final judgment, despite the fact the appeal was voluntarily dismissed. As a

result, the Sabharis contend the ninety days for filing a petition for a writ of certiorari

should have been included in determining whether the EAJA fee request was timely.

We addressed the timeliness of the EAJA fee request when we entered the order

denying the government's motion to dismiss. This occurred before the remand to the

district court. The district court therefore erred when it relitigated the issue of

timeliness on remand, because our prior order was the law of the case.

The law of the case doctrine "prevent[s] the relitigation of a settled issue in a

case." Gander Mountain Co. v. Cabela's, Inc., 540 F.3d 827, 830 (8th Cir. 2008). 

"The doctrine 'requires courts to adhere to decisions made in earlier proceedings in

order to ensure uniformity of decisions, protect the expectations of the parties, and

promote judicial economy.'" Id. (quoting United States v. Bartsh, 69 F.3d 864, 866

(8th Cir. 1995)). "[W]hen a court decides upon a rule of law, that decision should

continue to govern the same issues in subsequent stages in the same case." United

States v. Carter, 490 F.3d 641, 644 (8th Cir. 2007) (quoting Arizona v. California, 460

U.S. 605, 618 (1983)). "The doctrine applies to decisions made by appellate courts[.]" 

Gander Mountain, 540 F.3d at 830.

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The government argues the law of the case doctrine does not apply, claiming

Keasler v. United States, 766 F.2d 1227 (8th Cir. 1985), conclusively establishes that

the Sabharis' fee request was untimely. We decline to address this argument. 

Whether "right or wrong," In re Design Classics, Inc., 788 F.2d 1384, 1386 (8th Cir.

1986), the order denying the government's motion to dismiss became the law of the

case and governed the parties in the subsequent proceedings in the district court.

We reverse and remand this case for further proceedings consistent with this

opinion.

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