Cruz v. Scialabba et al

Filing 16

ORDER denying 14 Motion for Attorney Fees by Judge R. Brooke Jackson on 11/18/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 14-cv-00889-RBJ
SILVIA CRUZ,
Petitioner,
v.
LORI SCIALABBA, Acting Director, United States Citizenship and Immigration Services,
LAURA ZUCHOWSKI, Acting Director, Vermont Service Center, United States Citizenship and
Immigration Services,
JEH JOHNSON, Secretary of the Department of Homeland Security,
Respondents.

ORDER

This case is before the Court on Petitioner’s Motion for Attorney’s Fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 [ECF No. 14]. For the reasons laid out
below, the motion is denied.
I. FACTS
This case involves a much-delayed decision from the government approving Petitioner
Silvia Cruz’s application for Temporary Protected Status (“TPS”), an immigration status
awarded to aliens who cannot safely return to their home countries because of natural disasters or
other unsafe conditions. Mrs. Cruz is a citizen of El Salvador. ECF No. 1 at ¶ 1. In July of
2013, she filed two applications with United States Citizenship and Immigration Services
(“USCIS”): an I-765, Application for Employment Authorization, and an I-821, an application to

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renew her registration for Temporary Protected Status. Id. at ¶ 2. Mrs. Cruz’s I-765 application
was denied on October 7, 2013, but she did not receive any decision on her I-821 application.
ECF No. 1 at ¶ 3. This delay was an error on the part of USCIS, apparently caused by a
misplaced or overlooked record. See ECF No. 15 at 2. In any event, USCIS voluntarily
approved Mrs. Cruz’s I-821 application soon after she commenced this litigation. See ECF No.
14 at ¶ 5.
This Court played no role in the application’s ultimate approval. The Court held a status
conference with the parties on April 28, 2014, which lasted for five minutes. ECF No. 11.
Following the conference, the Court ordered that petitioner file a status report or dismissal
paperwork in the beginning of June of 2014. Id. The parties subsequently filed a joint motion to
dismiss because USCIS had voluntarily approved Mrs. Cruz’s I-821. ECF No. 12. On June 5,
2014, the Court denied the parties’ joint motion to dismiss, commenting that the Court would
“enter a final judgment of dismissal when all remaining issues concerning fees and costs have
been resolved.” ECF No. 13. Petitioner now moves for an award of attorney’s fees under the
EAJA; the government opposes her request.
II. DISCUSSION
The Equal Access to Justice Act (“EAJA”) provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing
party other than the United States fees and other expenses . . . incurred by that party in
any civil 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). Thus, to prevail under the EAJA, a party must show that (1) it was
the prevailing party, (2) the position of the United States was not substantially justified, and (3)
there are no special circumstances that make an award unjust.
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The government contends that Mrs. Cruz was not the prevailing party in this action, and
the Court agrees. 1 The Supreme Court has held that, in construing the term “prevailing party,”
“respect for ordinary language requires that a petitioner receive at least some relief on the merits
of his claim before he can be said to prevail.” Buckhannon Bd. & Care Home, Inc. v. W.
Virginia Dep’t of Health & Human Res., 532 U.S. 598, 603–04 (2001) (internal quotations,
citations, and alterations omitted). Furthermore, “[a] defendant’s voluntary change in conduct,
although perhaps accomplishing what the petitioner sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change. Our precedents thus counsel against holding that
the term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding
alteration in the legal relationship of the parties.” Id. at 605 (emphasis in original). The Tenth
Circuit has explicitly held that the Buckhannon analysis applies to the “prevailing party”
determination in EAJA cases. Iqbal v. Holder, 693 F.3d 1189, 1194 (10th Cir. 2012) cert.
denied 133 S. Ct. 1603 (2013).
Here, following the parties’ status conference on April 28, 2014, the Court ordered that
petitioner file a status report or dismissal paperwork in the beginning of June of 2014. ECF No.
11. On June 5, 2014, the Court denied the parties’ joint motion to dismiss, commenting that the
Court would “enter a final judgment of dismissal when all remaining issues concerning fees and
costs have been resolved.” ECF No. 13. Neither of these orders altered the legal relationship
between the parties. Indeed, the government voluntarily approved Mrs. Cruz’s I-821 application
without the Court’s intervention. This is precisely a situation in which “[a] defendant’s
voluntary change in conduct” accomplished “what the petitioner sought to achieve by the
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Because this finding is dispositive, the Court does not address the government’s additional argument that its
position was substantially justified.

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lawsuit,” without the judicial imprimatur necessary to consider the petitioner a prevailing party.
See Buckhannon, 532 U.S. at 603–04. Thus Mrs. Cruz was not a prevailing party in this action,
and the Court will not award attorney’s fees.
The petitioner argues that she is the prevailing party “by virtue of the fact that [the] Court
granted her petition to retain jurisdiction over the case until adjudication was complete.” ECF
No. 14 at ¶ 7. This statement mischaracterizes petitioner’s own request for relief. What the
petitioner requested was that the Court order the government to adjudicate her I-821 and “retain
jurisdiction during the adjudication of the I-821 petition in order to ensure compliance with the
Court’s orders.” ECF No. 1 at 5. The Court, however, never ordered USCIS to adjudicate the I821 form. Consequently, neither did the Court state that it would retain jurisdiction to assure the
government comply with such an order. Furthermore, the fact that the Court retained jurisdiction
did nothing to alter the legal relationship of the parties or provide petitioner relief on the merits;
thus the act of retaining jurisdiction cannot be a basis for deeming one party to have prevailed
under Buckhannon. See 532 U.S. at 603–04. For these reasons, the petitioner’s argument on this
point rests on factual and legal inaccuracies, and the Court finds it without merit.
For the foregoing reasons, the Court finds that the petitioner was not a prevailing party in
this action and thus is not entitled to attorney’s fees.
ORDER
Petitioner’s Motion for Attorney’s Fees under the Equal Access to Justice Act [ECF No.
14] is DENIED. The Court now enters a final judgment of dismissal.
DATED this 18th day of December, 2014.
BY THE COURT:
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___________________________________
R. Brooke Jackson
United States District Judge

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