NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LA LOMA GRANDE, LLC, an Arizona No. 17-15870
limited liability company,
D.C. No. 4:11-cv-00476-RM
Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Argued and Submitted October 18, 2018
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EATON,** Judge.
La Loma Grande, LLC (“LLG”), obtained a judgment against the United
States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. for
the negligent contamination of real property in Nogales, Arizona. LLG then sought
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(b), (d)(1)(A). The district court denied LLG’s application for attorneys’ fees
and awarded costs in an amount lower than LLG sought. We have jurisdiction under
28 U.S.C. § 1291, and affirm.
1. The district court correctly held that LLG was not a “prevailing party”
under § 2412(d)(1)(A) as to the Government’s conditional counterclaim to LLG’s
claims under the Comprehensive Environmental Response, Compensation and
Liability Act (“CERCLA”), 42 U.S.C. § 9607, or as to the Government’s affirmative
defenses in the FTCA action of prescriptive easement and implied consent.
a. LLG’s CERCLA claim was dismissed on summary judgment because it
had incurred no recovery costs. The Government’s conditional counterclaim for
declaratory relief apportioning future recovery costs then became nonviable as a
matter of law. City of Colton v. Am. Promotional Events, Inc.-W., 614 F.3d 998,
1008 (9th Cir. 2010). Therefore, LLG cannot be said to have “gained by
judgment . . . a ‘material alteration of the legal relationship of the parties.’” Perez-
Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002).
b. The affirmative defenses were raised in the FTCA action, which arose out
of tort, and therefore could not be the subject of a fee award under the EAJA. See
28 U.S.C. § 2412(d)(1)(A). Prevailing on a tort claim necessarily means that the
plaintiff has defeated any applicable affirmative defenses, and the prohibition in
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§ 2412(d)(1)(A) against EAJA awards in “cases sounding in tort” necessarily
extends to fees incurred in defeating affirmative defenses in such actions.
3. The district court did not abuse its discretion by denying LLG’s claim
under 28 U.S.C. § 2412(b) because LLG failed to establish that the Government
“acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Rodriguez v.
United States, 542 F.3d 704, 709 (9th Cir. 2008). For the reasons stated in its order,
the district court also did not abuse its discretion in the EAJA costs award.
AFFIRMED.
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