United States District Court, E.D. Michigan, Southern Division
PRESENT: Honorable Gerald E. Rosen United States District
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR
E. Rosen United States District Judge
case is presently before the Court on an Order to Show Cause
entered on June 7, 2016 directing Plaintiff to show cause in
writing why the Court should not grant the relief requested
in Defendants' Motion to Dismiss for Mootness. Plaintiff
has responded to the Show Cause Order. Having had the
opportunity to review the parties' filings and the
Court's entire record of this matter, for the reasons
stated below, Defendants' Motion to Dismiss will be
Mariana Duran Garcia filed this action seeking de
novo review of the USCIS's denial of her application
for naturalization. After Plaintiff filed her complaint in
this action, the USCIS sua sponte re-opened
Plaintiff's application, and so notified Plaintiff on
March 28, 2016. USCIS approved her application for
naturalization on April 20, 2016, and on May 12, 2016,
Plaintiff appeared, took the oath of citizenship, and became
a United States citizen that day.
light of the foregoing, Defendants moved to dismiss this
action as moot. Because Plaintiff is now a United States
citizen, and it, therefore, appeared to the Court that there
is no longer any case or controversy for this Court to
adjudicate, the Court issued an Order to Show Cause directing
Plaintiff to show cause in writing why the Court should not
grant the relief requested by Defendants and dismiss this
case as moot.
through counsel, has responded. Though Plaintiff does not
dispute that she has been now granted the relief she had
requested in her petition for judicial review of the final
administrative denial of her N-400 Naturalization
Application, Plaintiff maintains that the Court should not
dismiss this action.
however, provides the Court with no legal basis for keeping
this case open other than for the consideration of awarding
her attorneys' fees under the Equal Access to Justice Act
(the “EAJA”), 28 U.S.C. § 2412 et
EAJA provides in relevant part,
Except as otherwise specifically provided by statute, a court
shall award a prevailing party other than the United States
fees and other expenses . . . incurred by that party in any
civil action (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by
or against the United States in any court having jurisdiction
of that action, unless the court finds that the position of
the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
plaintiff may be a “prevailing party” for EAJA
purposes even where, as here, the lawsuit is rendered moot by
the granting of relief, as long as the plaintiff demonstrates
that “it is more probable than not that the government
would not have performed the desired act absent the
lawsuit.” Shu Chen v. Slattery, 842 F.Supp.
597, 598 (D.D.C. 1994) (quoting Public Citizen Health
Research Group v. Young, 909 F.2d 546, 550 (D.C.Cir.
fee proceedings, however, generally are post-judgment
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 which shows that the party
is a prevailing party and is eligible to receive an award
under this subsection, and the amount sought, including an
itemized statement from an attorney... representing or
appearing on behalf of the party stating the actual time
expended and the rate at which fees and other expenses were
computed. The party shall also allege that the position of
the United States was not substantially justified. Whether or
not the position of the United States was substantially
justified shall be determined on the basis of the record
(including the record with respect to the action or failure
to act by the agency upon which the civil action is based)
which is made in the civil action for which fees and other
expenses are sought.
28 U.S.C. § 2412(d)(1)(B). See also Shu Chen v.
Slattery, supra. Cf. Fed. R. Civ. P.
54(d)(2) (“A claim for attorney's fees and related
nontaxable expenses must be made by motion unless the
substantive law requires those fees to be proved at trial as
an element of damages. . . . [T]he motion must be filed no
later than  days after the entry of judgment.”) A
final judgment for ...