Zheng Liu v. Chertoff, Civil File No. 06-3851 (MJD/SRN).
| Decision Date | 14 March 2008 |
| Docket Number | Civil File No. 06-3851 (MJD/SRN). |
| Parties | ZHENG LIU, Plaintiff, v. Michael CHERTOFF, Secretary, U.S. Department of Homeland Security; Emilio Gonzalez, Director, U.S. Citizenship and Immigration Services; Denise M. Frazier, Director, U.S. Citizenship and Immigration Services, Saint Paul District Office; and Robert S. Mueller, Director, Federal Bureau of Investigation; Defendants. |
| Court | U.S. District Court — District of Minnesota |
Herbert Igbanugo, Igbanugo Partners Int'l Law Firm, PLLC, for Plaintiff.
Friedrich A.P. Siekert, Assistant United States Attorney, for Defendants.
MEMORANDUM OF LAW & ORDER
This matter is before the Court on Plaintiffs Motion for Attorney's Fees and Costs under the Equal Access to Justice Act [Docket No. 30] and on Defendants' Motion to Dismiss as Moot [Docket No. 38].
On July 25, 2005, Plaintiff Zheng Liu filed an N-400 Application for Naturalization with the U.S. Citizenship and Immigration Services ("USCIS"). On August 12, 2005, the USCIS requested the FBI name check on Liu. On December 12, 2005, Liu was interviewed by the USCIS in the Saint Paul District Office. However, no decision on his application was made.
Liu inquired about his status multiple times, but was informed that no decision could be made until his FBI name check was completed. On September 27, 2006, Liu filed a pro se Petition for Hearing on Naturalization Application under 8 U.S.C. § 1447(b) with this Court. Liu requested a Court order adjudicating his naturalization application or remand to the USCIS requiring Defendants to immediately adjudicate his naturalization application.
The Government filed a Motion to Dismiss or Alternatively to Remand. It requested that the Court dismiss Liu's case for lack of jurisdiction. Alternatively, the Government asked the Court to remand the matter to the USCIS with no specific time limit placed on the USCIS and the FBI to complete Liu's background check and naturalization application.
Liu filed a timely pro se response to Defendants' motion to dismiss on February 22, 2007. On March 8, 2007, Liu's newly retained counsel, Herbert Igbanugo, entered his appearance in this matter and filed a supplemental memorandum in opposition to the motion to dismiss.
On March 28, 2007, the parties appeared for oral argument, but the Court heard no oral argument and informed the parties that it had reviewed the matter, had recently issued a ruling in a similar case, and would be remanding the matter. On April 13, 2007, the Court issued its written order and granted in part and denied in part Defendants' Motion to Dismiss or Alternatively, to Remand and remanded the matter to the USCIS to adjudicate Liu's application within 6 months.
In its Order, the Court noted that if the USCIS fails to render a decision within 120 days after the date on which the examination is conducted under § 1446, the applicant may seek immediate judicial review. 8 U.S.C. § 1447(b). The district court "may either determine the matter or remand the matter, with appropriate instructions, to [the USCIS] to determine the matter." Id. The Court noted that USCIS had "a non-discretionary duty to process the application within a reasonable time," and that "[a]t some point, USCIS's delay becomes unreasonable." (Apr. 13, 2007 Order at 7 (citation omitted).) The Court concluded that neither the USCIS nor the Court had the authority to act on Liu's naturalization application while his mandatory background check was pending. (Id. at 5-6.) Instead, the Court concluded that remand was appropriate, so that USCIS could make a final determination on Liu's naturalization application after all background checks have been completed. (Id. at 6.)
Defendants requested that the Court impose no time limit on USCIS's actions, while, in his supplemental memorandum, Liu asked that the Court order the USCIS to resolve his application within thirty days. The Court concluded that, balancing "the heavy workload facing the FBI and the USCIS" with the fact that Liu had already waited so long and had already undergone Government background checks, a six-month time limit was appropriate. Id. at 7. The Court ordered Liu's request for adjudication of his application for naturalization be remanded to the USCIS with instructions that USCIS issue a determination on Liu's naturalization application within six months of the date of its Order. (Id. at 7-8.) Furthermore, the Court ordered that Defendants be ordered to show cause to this Court for any failure to comply with the substance of the Court's Order and to do so within thirty days of the expiration of the six-month deadline set forth in the Order. (Id. at 8.) Finally, Liu's Petition for Hearing on Naturalization Application was stayed during the pendency of the USCIS's compliance with the substance of the Court's Order. (Id.)
At some point before May 11, 2007, Liu's name check was cleared and he was ready for naturalization. (Pl. Ex. 3.) On May 17, 2007, the USCIS sent Liu a Notice of Naturalization Oath Ceremony. (Id.; Siekert Decl. ¶ 4.) On June 12, 2007, Liu became a naturalized citizen of the United States. (Pl. Ex. 4.)
Liu now requests attorney fees and costs in the amount of $16,087.79.
Defendants move to dismiss this action for lack of subject matter jurisdiction because the action is moot. They claim Liu's Petition is moot because he has now been naturalized. Liu does not oppose Defendants' motion to dismiss, but notes that dismissing the case will not preclude the Court from awarding attorney fees and costs. Based on the parties' agreement, the Court will grant Defendants' Motion to Dismiss as Moot. [Docket No. 38].
Liu seeks an award of attorney fees and costs of $16,087.79 under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). U.S. S.E.C. v. Zahareas, 374 F.3d 624, 626 (8th Cir.2004).
In order to recover attorney fees under the EAJA, Liu must show that his net worth did not exceed $2,000,000 at the time he filed the action, and that he was the prevailing party in the action. If Liu meets his burden, the United States has the burden of showing that its position was substantially justified or that special circumstances render an award unjust. Huett v. Bowen, 873 F.2d 1153, 1155 (8th Cir.1989); see also 28 U.S.C. 2412(d)(1)(A), (d)(2)(B).
Liu meets the net worth requirement. He has filed a sworn affidavit providing that his worth has not exceeded $2,000,000 from the time his case was filed through the present. (Liu Aff. ¶ 4.)
Defendants assert that Liu is not entitled to an EAJA fee award because, at the time Liu filed his Petition and his memorandum in opposition to the motion to dismiss, he was proceeding pro se. Pro se litigants are not entitled to EAJA fee awards. Kooritzky v. Herman, 178 F.3d 1315, 1320-21 (D.C.Cir.1999). The Court concludes that this argument does not affect Liu's request for attorney fees. Liu is not seeking fees for work done while he was pro se; he only seeks attorney fees for work done by the attorneys that he hired during the pendency of the case. Liu's initial pro se status does not preclude an attorney fee award.
"[T]o qualify as a `prevailing party,' a plaintiff must obtain actual relief on the merits of his claim [that] materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." John T. v. Iowa Dept. of Educ., 258 F.3d 860, 863-64 (8th Cir.2001) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). In other words, "a plaintiff must secure a `judicially sanctioned change in the legal relationship of the parties' to qualify as a prevailing party." Cody v. Hillard, 304 F.3d 767, 772 (8th Cir.2002) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). "Any relief obtained must directly benefit [the plaintiff] at the time of the judgment or settlement." Drennan v. Pulaski County Special Sch. Dist., 458 F.3d 755, 757 (8th Cir.2006) (citation omitted). Attorney fees are not warranted when the plaintiffs "prevailed on only a very small and technical part of their claim." Id. (citation omitted).
The Court concludes that Liu is a prevailing party because the Court granted him relief that was substantially the relief Liu requested in his Petition. Liu requested that the Court either adjudicate his naturalization application or remand his application to Defendants for immediate adjudication. Although the Court did not order "immediate" adjudication, over Defendants' objections, the Court ordered remand to USCIS to adjudicate Liu's naturalization application within a specific time frame, which was a position Liu did advocate in his opposition to Defendants' motion to dismiss. The Court's ruling altered Liu's legal relationship with Defendants by requiring Defendants to adjudicate his application within a specific time frame. Liu could have moved to enforce the Court's Order if Defendants had failed to comply with it, which is the reason the Court retained jurisdiction over this matter. Although Liu is now naturalized, the adjudication of his naturalization application did not result from a voluntary change in Defendants' conduct. Instead, Defendants acted in compliance...
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