                           NOT FOR PUBLICATION                           FILED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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