UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

RAHEEL BEHNAM POTRIS, 

 Case No. 2:15-cv-11309 

 Plaintiff, Judge Paul D. Borman 

v. Magistrate Judge Anthony P. Patti 

 

SECRETARY OF DEPARTMENT 

OF HOMELAND SECURITY, 

 Defendant. 

_______________________________/ 

REPORT AND RECOMMENDATION REGARDING PLAINTIFF’S 

APPLICATION FOR FEES, COSTS AND OTHER EXPENSES UNDER 

THE EQUAL ACCESS TO JUSTICE ACT (DE 9) 

I. RECOMMENDATION: The Court should deny Plaintiff’s application for 

fees, costs, and other expenses under the Equal Access to Justice Act. (DE 9.) 

II. REPORT: 

A. Factual Background 

Raheel Behnam Potris became a permanent resident of the United States of 

America on January 14, 2008. (DE 1 at 3 ¶ 5.) On or about November 6, 2012, 

she filed a U.S. Citizenship Application (Form N-400) with the United States 

Citizenship and Immigration Service (USCIS). (DE 11-1 at 2 ¶ 4.) Ms. Potris was 

interviewed on February 28, 2013 by the USCIS, Detroit District Office. (DE 1 at 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 1 of 22 Pg ID 215
2 

3 ¶ 5.) Thus, a determination on her application was due on or about June 28, 

2013. (DE 9 at 3.)1

Ms. Potris’s case was referred to the USCIS Fraud Detection and National 

Security (FDNS) unit on March 1, 2013, where it remained until approximately 

March 11, 2014. (DE 11-1 at 2 ¶¶ 7-8.) On March 17, 2014, her case was received 

by the Adjudications Unit. (DE 11-1 at 2 ¶ 10.) On July 18, 2014, it was 

discovered that Ms. Potris’s fingerprints had expired. DE 11-1 at 3 ¶ 11. She was 

fingerprinted on December 15, 2014. DE 11-1 at 3 ¶ 12. 

B. Procedural History 

Nearly four months later, on April 8, 2015, Plaintiff, via counsel, filed a 

petition for naturalization on the basis that her application “has been pending for 

over 120 days thus vesting jurisdiction with this court under 8 U.S.C. § 1447[,]” 

and alleging that Defendant is in violation of the Administrative Procedure Act 

(APA). DE 1 at 5 ¶¶ 13, 15. Plaintiff’s complaint sought three specific forms of 

                                                            

1

 “A decision to grant or deny the application shall be made at the time of the 

initial examination or within 120-days after the date of the initial examination of 

the applicant for naturalization under § 335.2.” 8 C.F.R. § 335.3. “If there is a 

failure to make a determination under [8 U.S.C. §] 1446 . . . before the end of the 

120-day period after the date on which the examination is conducted under such 

section, the applicant may apply to the United States district court for the district in 

which the applicant resides for a hearing on the matter. Such court has jurisdiction 

over the matter and may either determine the matter or remand the matter, with 

appropriate instructions, to the Service to determine the matter.” 8 U.S.C. § 

1447(b) (“Request for hearing before district court”). 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 2 of 22 Pg ID 216
3 

relief: assume jurisdiction over this case and naturalize the Plaintiff pursuant to 8 

U.S.C. § 1447(b); award Plaintiff reasonable attorney fees; and alternatively, 

remand to USCIS with instructions to adjudicate the application within a time 

certain. (DE 1 at 5-6 ¶¶ A-C.) 

Beginning May 19, 2015, through June 12, 2015, counsel for the parties 

exchanged electronic mail regarding the terms of a stipulated order. (DE 11-2.) In 

pertinent part, these e-mails consisted of the following communications: 

Defense counsel (5/19/15): “USCIS has reviewed the complaint and 

is willing to adjudicate Ms. Potris’ application as you request. Please 

advise whether I have your consent to submit the attached stipulated 

order remanding the matter to USCIS to the court. 

* * * 

Plaintiff’s counsel (5/27/15): “We can agree to the remand within a 

time specified because that is the relief we requested in our complaint 

so basically, your client is agreeing to grant the relief we requested. 

We cannot agree to the mootness because at this point, only the court 

has jurisdiction. We cannot agree to bear our costs and attorneys fees. 

(DE 11-2.) 

On June 15, 2015, Judge Borman entered a stipulated order remanding the 

matter to U.S. Citizenship and Immigration Services. In its entirety, it provides: 

Upon the stipulation of the parties, through their respective counsel, 

this action is remanded, without prejudice, to U.S. Citizenship and 

Immigration Services for adjudication of Plaintiff’s naturalization 

application within twenty-one (21) days of entry of this order. The 

issue of attorney’s fees and costs are preserved by the parties. 

(DE 8) (emphasis added). 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 3 of 22 Pg ID 217
4 

The following day, on June 16, 2015, Plaintiff’s naturalization application 

was approved by the USCIS. DE 11-1 at 3 ¶ 14. Her “Notice of Naturalization 

Oath Ceremony” is dated June 18, 2015, and it notified her to appear on Monday, 

July 6, 2015. (DE 9-1.) Plaintiff was naturalized on that date. (DE 9 at 4.) 

C. Instant Motion 

Currently before the Court is Plaintiff’s July 13, 2015 application for fees, 

costs, and other expenses under the Equal Access to Justice Act (EAJA). (DE 9.) 

In the instant motion, Plaintiff seeks an award of EAJA fees in the amount of 

$2,614.79, comprised of $2,136.00 for attorney fees, $450.00 in filing fees, and 

$28.79 in certified mail costs. (DE 9 at 14.) The government has filed a response, 

and Plaintiff has filed a reply. (DEs 11, 13.) 

Judge Borman has referred this motion to me for report and 

recommendation. (DE 10.) On August 11, 2015, a hearing on this matter was 

noticed for September 22, 2015. (DE 12.)2

 On the date set for hearing, attorneys 

Caridad Pastor Cardinale and Assistant United States Attorney Jennifer L. Newby 

appeared. 

                                                            

2

 On September 17, 2015, Plaintiff filed a statement of resolved and unresolved 

issues. (DE 14.) As framed by the statement of resolved and unresolved issues, 

those which remain to be decided are: (1) Whether the Plaintiff is entitled to 

Attorneys Fees and Costs pursuant to EAJA, and (2) What is the appropriate 

formula for calculating the Attorneys Fees and Costs. (DE 14 at 2.) 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 4 of 22 Pg ID 218
5 

D. The Equal Access to Justice Act (EAJA) 

“In separate provisions, the EAJA allows a prevailing party other than the 

United States to recover fees and expenses incurred ‘in any civil action’ brought by 

or against the United States, 28 U.S.C. § 2412(d)(1)(A), or in an ‘adversary 

adjudication’ conducted by an agency of the United States, 5 U.S.C. § 504.” TriState Steel Const. Co., Inc. v. Herman, 164 F.3d 973, 977 (6th Cir. 1999). Plaintiff 

filed the instant request pursuant to 28 U.S.C. § 2412(d). (DE 9 at 1.) 

“Under the EAJA, ‘a court shall award to a prevailing party’ in a civil action 

against the United States ‘fees and other expenses ... unless the court finds that the 

position of the United States was substantially justified or that special 

circumstances make an award unjust.’” Glenn v. Commissioner of Social Sec., 763 

F.3d 494, 498 (6th Cir. 2014) (quoting 28 U.S.C. § 2412(d)(1)(A); DeLong v. 

Commissioner of Social Sec. Admin., 748 F.3d 723, 725 (6th Cir. 2014)) (emphasis 

added). In other words, under 28 U.S.C. § 2412(d)(1)(A), an award of fees 

requires that 1) the plaintiff was the prevailing party, 2) the government’s position 

was not substantially justified, and 3) no special circumstances make an award of 

fees unjust. 

“The EAJA renders the United States liable for attorney’s fees for which it 

would not otherwise be liable, and thus amounts to a partial waiver of sovereign 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 5 of 22 Pg ID 219
6 

immunity.” Ardestani v. I.N.S., 502 U.S. 129, 137 (1991). “Any such waiver must 

be strictly construed in favor of the United States.” Id. 

E. The Court Should Deny Plaintiff’s Application. 

1. Plaintiff is not entitled to an award of attorney fees under 

the EAJA. 

a. She is not a prevailing party as contemplated by 28 

U.S.C. § 2412(d)(1)(A). 

As a threshold matter, the Court must first consider whether Plaintiff is a 

prevailing party as contemplated by 28 U.S.C. § 2412(d)(1)(A). “‘Prevailing 

party’ is not some newfangled legal term invented for use in late-20th-century feeshifting statutes.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of 

Health and Human Resources, 532 U.S. 598, 610 (2001) (Scalia, J., concurring). 

According to Black’s Law Dictionary, a “prevailing party” is defined as “[a] party 

in whose favor a judgment is rendered, regardless of the amount of damages 

awarded,” which further notes that, ”in certain cases, the court will award 

attorney’s fees to the prevailing party,” which is also termed the “successful 

party.” Black’s Law Dictionary 1298 (10th ed. 2014). 

The seminal case on this issue is Buckhannon, in which the Supreme Court 

held that “prevailing party” does not include “a party that has failed to secure a 

judgment on the merits or a court-ordered consent decree, but has nonetheless 

achieved the desired result because the lawsuit brought about a voluntary change in 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 6 of 22 Pg ID 220
7 

the defendant’s conduct.” Buckhannon, 532 U.S. at 600. In that case, the court 

began by recognizing that “[i]n the United States, parties are ordinarily required to 

bear their own attorney’s fees—the prevailing party is not entitled to collect from 

the loser.” Id. at 602. However, after acknowledging that Congress has authorized 

attorney fees awards to the “prevailing party” in numerous statutes and noting that 

“prevailing party” is a legal term of art, the court pointed out that “[i]n addition to 

judgments on the merits, we have held that settlement agreements enforced through 

a consent decree may serve as the basis for an award of attorney’s fees.” Id. at 

602-604 (emphasis added). By contrast, the Supreme Court stated that “the 

‘catalyst theory’ falls on the other side of the line from these examples.” Id. at 605 

(emphasis added). The “catalyst theory” refers to “[a] defendant's voluntary 

change in conduct, [which] although perhaps accomplishing what the plaintiff 

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. (emphasis in original). 

i. The June 15, 2015 stipulated order remanding 

matter to USCIS is not a judgment on the 

merits. 

It is clear that the Judge Borman’s June 15, 2015 stipulated order remanding 

this matter to USCIS (DE 8) is not a judgment on the merits. A judgment on the 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 7 of 22 Pg ID 221
8 

merits “completely disposes of the underlying cause of action... or determines that 

the plaintiff has no cause of action.” Harper Plastics Co. v. Amoco Chems. Corp., 

657 F.2d 939, 943 (7th Cir. 1981). Here, the Court made no such determinations. 

In fact, the stipulated order at issue expressly states that the case is being remanded 

“for adjudication” of the plaintiff’s naturalization application; the order itself does 

not actually grant the application. Ordering the USCIS to merely make a decision 

within a certain timeframe, without directing the outcome of that decision, is 

nothing more than a remand to a lower tribunal for additional administrative 

proceedings. In this case, that remand resulted from an agreement, not from 

judicial deliberation. “The net effect is merely to return the parties to the forum 

where the plaintiff initially elected to have his case tried.” F & L Drug Co. v. 

American Central Ins. Co., 200 F. Supp. 718, 724 (D. Conn. 1961). As such, it is 

“in no sense a final judgment on the merits.” Id. 

Moreover, the stipulated order in question states that “this action is 

remanded, without prejudice . . . .” (emphasis added). Any dismissal order that is 

entered without prejudice “ordinarily does not preclude a subsequent action on the 

same claim,” and thus has no res judicata effect because it is not a judgment on the 

merits. 18 More’s Federal Practice 3D, §131.30[3][a] (citing Cooter & Gell v. 

Hartmarx Corp., 496 U.S. 384. 396 (1990) (“[D]ismissal...’without prejudice’ is a 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 8 of 22 Pg ID 222
9 

dismissal that does not ‘operate as an adjudication on the merits.’”); see also, Fed. 

R. Civ. P. 41(b)). 

ii. The June 15, 2015 stipulated order remanding 

matter to USCIS is not a consent decree 

What is less clear is whether the stipulated remand order is a consent decree 

as contemplated by Buckhannon, 532 U.S. at 600. Here, the Court recognizes that 

the dictionary definition of “consent decree” is not terribly helpful: “A court 

decree that all parties agree to. – Also termed consent order.” Black’s Law 

Dictionary 498 (10th ed. 2014). Therefore, at the conclusion of the September 22, 

2015 hearing, I invited counsel for the parties to submit supplemental briefs, no 

longer than six (6) pages in length, which discuss whether the June 15, 2015 

stipulated order remanding matter to USCIS (DE 8) is a “consent decree” and, by 

extension, to identify cases involving remand and prevailing party status. The 

parties did so on October 2, 2015. (DEs 15, 16.) 

As to what constitutes a consent decree, each of the parties relies upon the 

Supreme Court’s decision in United States v. Armour & Co., 402 U.S. 673 (1971), 

which instructs that: 

Consent decrees are entered into by parties to a case after careful 

negotiation has produced agreement on their precise terms. The 

parties waive their right to litigate the issues involved in the case and 

thus save themselves the time, expense, and inevitable risk of 

litigation. Naturally, the agreement reached normally embodies a 

compromise; in exchange for the saving of cost and elimination of 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 9 of 22 Pg ID 223
10 

risk, the parties each give up something they might have won had they 

proceeded with the litigation. 

Armour, 402 U.S. at 681 (emphasis added). The Court should conclude that its 

June 15, 2015 stipulated order remanding the case to USCIS (DE 8) is not a 

consent decree. Notwithstanding the fact that Plaintiff alleges the parties engaged 

in “careful negotiation” (see DE 16 at 2-3), the nine (9) electronic mails dated 

May 19-20, May 26-27, June 9 and June 12, which are offered as evidence of the 

negotiations, reveal simple discourse regarding the possible addition of “with 

prejudice” language, reservation of the issue of fees and costs, whether Plaintiff’s 

complaint is mooted by USCIS’s willingness to adjudicate Plaintiff’s application, 

and a time-frame for adjudication. (See DE 11-2, DE 16 at 2.) Here, it is 

noteworthy that, according to the Government, “Plaintiff did not negotiate the 

terms of the remand or the timeframe, nor were they set by the Court.” (DE 15 at 

2.) Instead, the timeframe set for completion of the administrative process was 

proposed by the Government, and accepted wholeheartedly by the Plaintiff. (DE 15 

at 12, DE 11-2, DE 11-3.) 

Second, Plaintiff herself admits that “the court remanded the case back to the 

Defendants to provide the exact relief that the Plaintiff was requesting.” (DE 16 at 

3.) Therefore, the agreement lacked compromise; Plaintiff did not give up 

something she might have won if she had proceeded with the litigation and been 

successful on her complaint. See Armour, 402 U.S. at 681; see also, Lorain 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 10 of 22 Pg ID 224
11 

NAACP v. Lorain Board of Education, 979 F.2d 1141, 1148 (6th Cir. 1992) (A 

consent decree “is at once ‘a voluntary settlement agreement which could be fully 

effective without judicial intervention’ and ‘a final judicial order ... plac[ing] the 

power and prestige of the court behind the compromise struck by the parties.’”) 

(quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983), Vulcan, Inc. v. 

Fordees Corporation, 658 F.2d 1106, 1111 (6th Cir. 1981) (“negotiations for a 

consent decree invariably call for reciprocal compromises each party relinquishes 

something it might have won had it proceeded with the litigation.”) (citation 

omitted)). Nor is there a waiver of the plaintiff’s right to litigate the matter further, 

if necessary. 

I also note Plaintiff’s observation that “the stipulation for remand of the 

Plaintiff’s case to USCIS was within the jurisdiction of this Court.” (DE 16 at 4.) 

The significance of the Court’s jurisdiction merits some comment here. Four days 

after the parties filed their supplemental briefs, the Sixth Circuit issued its decision 

in Pedreira v. Sunrise Children’s Services, Inc., 802 F.3d 865 (2015). In Pedreira, 

the Sixth Circuit considered whether “the district court’s incorporation of the 

settlement agreement into its dismissal order converted the order into a consent 

decree[.]” Pedreira, 802 F.3d at 871. The court explained: 

“A consent decree is essentially a settlement agreement subject to 

continued judicial policing.” Williams v. Vukovich, 720 F.2d 909, 920 

(6th Cir.1983). Consent decrees typically have two key attributes that 

make them different from private settlements. First, when a court 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 11 of 22 Pg ID 225
12 

enters a consent decree, it retains jurisdiction to enforce the decree. 

Id. In contrast, the parties to a private settlement typically must bring 

another suit (for breach of contract) to enforce it. See Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 381–82, 114 S.Ct. 1673, 

128 L.Ed.2d 391 (1994). Second, a consent decree puts “the power 

and prestige of the court behind the compromise struck by the 

parties.” Williams, 720 F.2d at 920. The same is not true of a 

dismissal order that does not incorporate the parties’ terms. 

Pedreira, 802 F.3d at 871 (emphasis added). The court then observed, “Both of 

these key attributes are present here: the court expressly retained jurisdiction to 

enforce compliance with the settlement's terms; and by incorporating the 

settlement into the court's own dismissal order, the court gave its imprimatur to the 

settlement's terms.” Id. 

Here, Plaintiff admits that “the Court transferred its jurisdiction to USCIS. . 

. . This Court did not retain jurisdiction in this matter.” (DE 16 at 6.) This 

admission and the language of the order itself demonstrate that the Court did not 

retain jurisdiction. Compare, Marshall v. Commissioner of Social Security, 444 

F.3d 837, 841 (6th Cir. 2006) (a social security case which involved a motion for a 

Sentence 6 remand, reversed a district court’s ruling that the plaintiff was not a 

“prevailing party” under the EAJA, and in which the Sixth Circuit reasoned that: 

“[b]y granting Marshall’s ‘motion to affirm decision on remand,’ the district 

court’s opinion acknowledges that jurisdiction was retained.”),3 Almudallal v. 

                                                            

3 I note that social security remand cases are somewhat of a “different beast.” “No 

holding of this Court has ever denied prevailing-party status (under § 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 12 of 22 Pg ID 226
13 

USCIS, No. 3:07-cv-2040 (N.D. Ohio May 5, 2008) (“a lawsuit under Section 

1447(b) allows the USCIS to maintain jurisdiction over the naturalization 

application and the order for remand does not constitute a final judgment[,]” “the 

Court remanded with instructions to allow the process to be completed[,]” and the 

order did not confer prevailing party status upon Plaintiff.). Likewise, there is 

nothing in the order to suggest that this Court put its “power and prestige . . . 

behind the compromise struck by the parties.” Williams, 720 F.2d at 920. 

Moreover, the Sixth Circuit instructed in Pedreira that “Before entering a 

consent decree,” the district court must: (1) “determine, among other things, that 

the agreement is ‘fair, adequate, and reasonable, as well as consistent with the 

public interest[,]’” and must (2) “allow anyone affected by the decree to ‘present 

evidence and have its objections heard[.]’” Pedreira, 802 F.3d at 872. None of 

this occurred here. Far from being a “consent decree” of the ilk one might see in a 

school desegregation or environmental clean-up case, in this instant matter, the 

parties agreed to a simple remand order. 

 Therefore, in accordance with Armour and Pedreira, the Court should 

conclude that its June 15, 2015 stipulated order remanding case to USCIS (DE 8) is 

                                                                                                                                                                                               

2412(d)(1)(B)) to a plaintiff who won a remand order pursuant to sentence four of 

§ 405(g).” Shalala v. Schaefer, 509 U.S. 292, 300 (1993); see also, Turner v. 

Commissioner of Soc. Sec., 680 F.3d 721 (6th Cir. 2012). “[A] district court retains 

jurisdiction when remanding a social security claimant's case pursuant to sentence 

six.” Marshall, 444 F.3d at 841. 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 13 of 22 Pg ID 227
14 

not a consent decree, because the agreement lacked compromise and the Court has 

neither retained jurisdiction nor put its “power and prestige” behind it. 

iii. Instead, the instant lawsuit brought about a 

voluntary change in Defendant’s conduct and, 

thus, lacks the necessary judicial imprimatur to 

conclude that Plaintiff is entitled to “prevailing 

party” status under the EAJA. 

The case at bar amounts to a mere “catalyst” for Defendant’s voluntary 

change in conduct and lacks the judicial imprimatur contemplated in Buckhannon, 

532 U.S. at 605. My decision is informed by Al-Maleki v. Holder, 558 F.3d 1200, 

1206 (10th Cir. 2009), a case in which the district court had granted the parties’ 

joint motion for remand. In concluding that “[t]he order is a judgment on the 

merits that conferred prevailing party status upon Al–Maleki[,]” the 10th Circuit 

explained: 

On the basis of the parties' stipulations, the district court resolved Al–

Maleki's claims in his favor, concluding he was entitled to be 

naturalized and ordering USCIS to administer the oath on a date 

certain. The order, therefore, also provided the judicial imprimatur 

which is indispensable to the prevailing party determination. The 

order placed the weight of judicial authority behind USCIS's 

stipulation that Al–Maleki was entitled to be naturalized by imposing 

a judicially enforceable obligation on USCIS to naturalize Al–Maleki 

by a date certain. If USCIS failed to comply with the order, Al–

Maleki could petition for relief in district court. 

Al-Maleki, 558 F.3d at 1206 (emphasis in original). By comparison, the stipulated 

order to remand in Ms. Potris’s case required the USCIS to adjudicate her 

naturalization application within a certain period. (DE 8 at 1.) It does not 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 14 of 22 Pg ID 228
15 

“conclude” that Ms. Potris “is entitled to be naturalized” and does not order the 

USCIS “to administer the oath.” Rather, the stipulated remand order at issue in 

Plaintiff’s case is more like the order at issue in Aronov v. Napolitano, 562 F.3d 84 

(1st Cir. 2009), as it “. . . did not resolve a dispute between the parties, it merely 

returned jurisdiction to the agency to allow the parties to carry out their 

agreement.” Aronov, 562 F.3d at 92; see also, Othman v. Chertoff, 309 F.App’x 

792, 794 (5th Cir. Dec. 23, 2008) (“The district court entered neither an 

enforceable judgment nor a consent decree. Instead, the court simply remanded the 

action to CIS and ordered that a determination be made by January 25, 2008. This 

action lacked the ‘judicial imprimatur’ necessary to confer prevailing-party status 

on Othman.”). 

A conclusion that the stipulated remand order at issue here lacks sufficient 

judicial imprimatur is also buttressed by several cases from this district. For 

example, in Mansour v. Johnson, No. 14-14139 (E.D. Mich. May 8, 2015) (Levy, 

J.) – a case in which the petitioner is the current plaintiff’s husband – the Court 

entered both a judgment and an order granting defendant’s motion to remand 

Plaintiff’s application for naturalization to USCIS for re-adjudication. In denying 

the motion for attorney fees, Judge Levy reasoned, “it was an order granting 

defendants’ request to voluntarily give plaintiff the very relief he sought.” Also, in 

Chebli v. Chertoff, No. 07-10750, 2007 WL 2571967 (E.D. Mich. Sept. 4, 2007) 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 15 of 22 Pg ID 229
16 

(Friedman, J.), the Court entered an opinion and order denying Defendant’s motion 

to dismiss and order scheduling a § 1447(b) hearing, followed by an order of 

dismissal without prejudice. Thereafter, in denying Plaintiff’s motion for costs and 

attorney’s fees and other expenses, the Court reasoned: “the parties negotiated a 

private settlement that, presumably, included the completion of the stalled 

background check and the favorable processing of plaintiff’s naturalization 

application. Upon being informed that the matter was resolved, the court issued an 

order dismissing the complaint without prejudice.” Chebli v. Chertoff, No. 07-

10750, 2008 WL 203317 (E.D. Mich. Feb. 4, 2008) (Friedman, J.) Finally, in 

DeLeon v. City of Ecorse, No. 05-70187, 2007 WL 2259331, *4 (E.D. Mich. Aug. 

3, 2007) (Cleland, J.), the Court entered an order dismissing claims and retaining 

jurisdiction for attorney fees and costs. In denying Plaintiff’s motion for attorney 

fees and costs, the Court reasoned: “the settlement terms incorporated into the 

court's order granted no substantive relief, but rather, merely submitted Plaintiff's 

claims to arbitration. The court is not convinced that such terms constitute relief on 

the merits of Plaintiff's claims which materially alters the legal relationship of the 

parties. Nor does the fact that this court retained jurisdiction for the limited 

purpose of determining a motion for attorney fees and costs establish Plaintiff as a 

prevailing party.” 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 16 of 22 Pg ID 230
17 

Plaintiff’s case warrants a similar conclusion. As in Mansour, Defendant 

here voluntarily gave Plaintiff the alternative relief she sought – remand with 

instructions to adjudicate within a time certain. See DE 1 at 6 ¶ C. Moreover, as in 

DeLeon, here, the parties’ legal relationship was not materially altered by the 

stipulated order to remand. Thus, the stipulated consent order does not have the 

necessary or sufficient judicial imprimatur to render Plaintiff a “prevailing party” 

as contemplated by the EAJA. 

 In sum, this lawsuit amounts to a mere “catalyst” for Defendant’s voluntary 

change in conduct and lacks the judicial imprimatur contemplated in Buckhannon, 

532 U.S. at 605. Furthermore, even if the Court finds that the issue of whether its 

stipulated order for remand “has sufficient judicial imprimatur to make Plaintiff a 

prevailing party” is a close call, I agree with the Government that the Court should 

find in the Government’s favor. DE 15 at 5-6. As noted above, “The EAJA 

renders the United States liable for attorney’s fees for which it would not otherwise 

be liable, and thus amounts to a partial waiver of sovereign immunity. Any such 

waiver must be strictly construed in favor of the United States.” Ardestani, 502 

U.S. at 137 (citations omitted). 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 17 of 22 Pg ID 231
18 

b. The Court need not address the issues of whether the 

Government’s position was substantially justified, 

whether special circumstances make an award unjust, 

or whether Plaintiff is entitled to attorney fees in 

excess of the statutory maximum. 

Plaintiff also argues that the Government’s position was not substantially 

justified, no special circumstances would make an award of fees unjust, and her 

counsel “is entitled to fees in excess of the statutory hourly rate . . . .” (DE 9 at 8-

10, 11-13.) The Government has responded to two of these arguments. (DE 11 at 

13-14, 15-17.) 

I am sympathetic to Plaintiff’s position in reply, where she alleges that 

“Defendants have a pattern and practice of failing to adjudicate Naturalization 

cases within the statutory 120 days, only to adjudicate these Naturalization cases 

within several weeks after a Federal action is filed[,]” citing six cases from the 

Eastern District,4

 in addition to Mansour, Case No. 14-14139 (E.D. Mich.),5 where 

                                                            

4 Plaintiff specifically cites Awad v. Chertoff, No. 2:06-14412 (E.D. Mich. 2006); 

Khalife v. Chertoff, No. 2:06-cv-14887 (E.D. Mich. 2006); El Amm v. Chertoff, No. 

2:08-cv-10293 (E.D. Mich. 2008); Ilamoud v. Chertoff, No. 2:08-cv-10946 (E.D. 

Mich. 2008); Guerrero v. Napolitano, No. 2:09-cv-13062 (E.D. Mich. 2009); and 

Aoun v. Napolitano, No. 2:11-cv-11298 (E.D. Mich. 2011). (DE 13 at 9.) 

5 Plaintiff’s supplemental brief states that “[b]y agreeing to the remand, the Plaintiff 

was trying to avoid the result in her husband’s case in which fees and costs were 

denied because the Judge felt that by not agreeing to a remand, the Plaintiff’s 

counsel frustrated the process.” DE 16 at 6. In her order denying Mansour’s 

motion for attorney fees, Judge Levy acknowledged that the EAJA’s purpose “is 

not to encourage those attorneys to frustrate the settlement process, delay the relief 

that might otherwise be afforded their clients, and require the Court to enter an 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 18 of 22 Pg ID 232
19 

the Plaintiffs were allegedly naturalized within 6 to 12 weeks of the filing of the 

complaint. (See DE 13 at 8-10.) It must be frustrating when, as Plaintiff argues, 

“Defendants are always able to naturalize federal Plaintiffs within a few weeks of 

the filing of the Complaint despite ‘investigations’ of fraud, FBI security checks, 

etc.” According to Plaintiff, this pattern and practice results in costs in addition to

the $680 in fees for an N-400 filing. (DE 13 at 10.) 

Nonetheless, if the Court agrees with my foregoing recommendation that 

Plaintiff is not a prevailing party as contemplated by 28 U.S.C. § 2412(d)(1)(A), 

then it need not consider whether the United States’ delay in adjudicating 

Plaintiff’s naturalization application was substantially justified, whether special 

circumstances make an award unjust, what is the appropriate formula for 

calculating the attorney fees and costs, or whether Plaintiff is entitled to attorney 

fees in excess of the statutory maximum under 28 U.S.C. § 2412(d)(2)(A)(ii). 

                                                                                                                                                                                               

order so that plaintiff’s counsel may then claim to have represented a prevailing 

party.” Case No. 5:14-cv-14139-JEL-RSW (E.D. Mich. May 8, 2015). Here, I 

do not doubt Plaintiff’s sincerity in this regard, nor do I endorse a “darned if you 

do; darned if you don’t” outcome; nonetheless, for the reasons stated elsewhere in 

this report, I recommend the Court conclude Plaintiff is not a prevailing party as 

contemplated by the EAJA.

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 19 of 22 Pg ID 233
20 

2. Plaintiff’s filing fees and certified mail costs are not 

compensable under 28 U.S.C. § 1920. 

Plaintiff also seeks reimbursement for $478.79 in costs, which is comprised 

of $450.00 in filing fees and $28.79 for certified mail. (DE 9 at 14.) Defendant 

does not appear to contest the calculation of $478.79 in costs. (DE 11.) 

Although 28 U.S.C. § 2412(d) is the only statute in the instant motion upon 

which Plaintiff seeks reimbursement, Plaintiff’s request for costs likely seeks such 

relief under 28 U.S.C. § 2412(a)(1), which provides: 

Except as otherwise specifically provided by statute, a judgment for 

costs, as enumerated in section 1920 of this title, but not including the 

fees and expenses of attorneys, may be awarded to the prevailing 

party in any civil action brought by or against the United States or any 

agency or any official of the United States acting in his or her official 

capacity in any court having jurisdiction of such action. A judgment 

for costs when taxed against the United States shall, in an amount 

established by statute, court rule, or order, be limited to reimbursing in 

whole or in part the prevailing party for the costs incurred by such 

party in the litigation. 

28 U.S.C. § 2412(a)(1) (emphasis added). Thus, a conclusion that Plaintiff here is 

not a prevailing party is fatal not only to her request for attorney fees but also to 

her request for costs. 

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 20 of 22 Pg ID 234
21 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

 /s/Anthony P. Patti 

 ANTHONY P. PATTI 

 UNITED STATES MAGISTRATE JUDGE 

Dated: November 20, 2015 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 21 of 22 Pg ID 235
22 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on November 20, 2015, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

Acting Case Manager, in the absence 

of Michael Williams 

2:15-cv-11309-PDB-APP Doc # 19 Filed 11/20/15 Pg 22 of 22 Pg ID 236