Immigration – Applicant granted remand order not entitled to attorneys’ fees

Where a district court directed the U.S. Citizenship and Immigration Services, or USCIS, to adjudicate the plaintiff’s naturalization application within 45 days and retained jurisdiction to hear the case if the agency failed to comply, the plaintiff did not qualify as a prevailing party because the remand order was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.”

Background

Junfei Ge commenced this action, requesting that the district court grant his application for citizenship through naturalization, or, alternatively, that the court remand the matter to USCIS with instructions “to adjudicate the application immediately and to schedule and administer an Oath Ceremony by a date certain.”

In response, the district court entered a remand order directing USCIS to “adjudicate the plaintiff’s naturalization application within forty-five (45) days of this Order” and retaining jurisdiction to “exercise its authority to hear and decide the case” if the agency failed to comply. Shortly after the court’s remand order, however, Ge reported to the court that he had been sworn in as a U.S. citizen, and the court dismissed Ge’s action with prejudice.

Ge then filed a motion for his attorneys’ fees under the Equal Access to Justice Act, alleging that he was the “prevailing party” in the action and that USCIS’s position was not “justified in law and fact at all stages.” The district court denied his motion, ruling that Ge did not qualify as a prevailing party because its remand order was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.”

Standard

For a plaintiff to be a prevailing party, he must obtain (1) a judgment, consent decree or similar order, (2) that grants him some relief on the merits, (3) that materially alters the legal relationship between him and the defendant and (4) that is enforceable by the court. The district court’s remand order in this case raises questions about the first three factors.

First factor

The court’s remand order in this case was clearly interlocutory and not appealable. It required USCIS to conduct further proceedings within a specified time and retained the court’s jurisdiction to adjudicate the matter on the merits if the agency did not comply. The order did not resolve the matter such that it could be called a “judgment” under any accepted definition of the term. Moreover, the district court’s remand order was not a consent decree, which is normally understood to be a settlement agreement between the parties that is embodied in a court order and subject to judicial approval and oversight. Thus, there was neither an agreement nor the embodiment of an agreement in the remand order to make it a consent decree or the equivalent thereof.

Second factor

The court did not rule on the merits of Ge’s naturalization application but rather remanded the application with instructions that USCIS make a ruling within 45 days. Moreover, the court reserved jurisdiction to enable it to decide the case on the merits should USCIS fail to do so. It is clear, therefore, that in remanding the matter, the court never ruled on the merits. Rather, it established a procedure by which the merits decision could be made promptly.

Ge argues that the remand order was on the merits because it granted the relief explicitly made available by § 1447(b). He relies on the proposition that to be a prevailing party, he “need not prevail on every issue.” While that is true, he must nonetheless prevail on some issue on the merits. Ge’s argument fails to recognize that the district court did not decide the merits of the matter but merely remanded it. Thus, its order was only a procedural order, not an order on the merits.

Third factor

Finally the district court’s remand order did not materially alter the legal relationship of the parties. Ge contends otherwise, arguing that, absent the district court’s remand order, “USCIS would not have had a deadline for adjudication and [he] would not have had the availability to seek further relief (adjudication) in district court.” He thus suggests that even if the remand order could not be characterized as a judgment on the merits or a consent decree, it still satisfied the “material alteration” standard because it forced USCIS to do something (adjudicate Ge’s application by a date certain) that it would not otherwise have been required to do. This argument, however, attributes too broad a sweep to the “material alteration” standard.

Affirmed.

Ge v. United States Citizenship and Immigration Services (Lawyers Weekly No. 001-208-21, 16 pp.) (Paul V. Niemeyer, J.) Case No. 20-1582. Dec. 7, 2021. From E.D. Va. at Richmond (John A. Gibney Jr. S.J.) Trina A. Realmuto for Appellant. Jonathan Holland Hambrick for Appellees.