UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARIANA DURAN GARCIA,

Plaintiff, No. 15-12714

vs. Hon. Gerald E. Rosen

JEH CHARLES JOHNSON, Secretary,

Department of Homeland Security, et al.,

Defendants.

________________________________/

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS FOR MOOTNESS

At a session of said Court, held in

 the U.S. Courthouse, Detroit, Michigan

on October 26, 2016

PRESENT: Honorable Gerald E. Rosen

 United States District Judge

This 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 granted.

Plaintiff Mariana Duran Garcia filed this action seeking de novo review of the

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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.

In 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.

Plaintiff, 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.

Plaintiff, 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 seq.

The 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

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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).

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. 1990).

EAJA fee proceedings, however, generally are post-judgment proceedings:

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 [30] days after the entry of

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judgment.”) A final judgment for EAJA purposes includes a judgment of dismissal on

mootness grounds. Shu Chen, 842 F. Supp. at 598.

The foregoing makes clear that Plaintiff’s request that the Court consider

awarding her attorneys’ fees pursuant to the EAJA is no bar to Defendants’ request for

dismissal of this action on mootness grounds. Therefore,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss for Mootness

[Dkt. # 14] is GRANTED. Accordingly,

Plaintiff’s Petition for Judicial Review of Final Administrative Denial of N-400

Naturalization Application [Dkt. #1] is DISMISSED in its entirety as moot, without

prejudice to Plaintiff’s right to apply for fees and costs in accordance with the provisions

of the EAJA.

SO ORDERED.

s/Gerald E. Rosen 

United States District Judge

Dated: October 26, 2016

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

counsel of record on October 26, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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