10th Cir. upholds fees in naturalization case

The Tenth Circuit held that an individual who obtained a court order instructing that he be naturalized was a prevailing party entitled to attorneys’ fees, even though the Government claimed his naturalization was the voluntary result of their processing his application while the litigation proceeded.

 The court reasoned that the critical fact for prevailing-party status was that plaintiff obtained relief after a court judgment on the merits. Al-Maleki v. Holder, --- F.3d ----, 2009 WL 692612 (10th Cir. Mar. 18, 2009) (No. 07-4260).

 

          Al-Maleki sued under 8 U.S.C. § 1447(b), claiming Citizenship and Immigration Services (CIS) failed to process his application within the 120-day statutory deadline. The court rejected the defense that an outstanding name-check request to the FBI excused compliance. CIS then said the name-check had been completed and it likely would naturalize Al-Maleki soon; the district court ordered it to do so by a date certain. The Government argued that the suit had merely been a catalyst for CIS’s voluntary actions, and Al-Maleki was not a prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Hum. Res., 532 U.S. 598 (2001).

 

          The court emphasized that Buckhannon demanded a “judicial imprimatur” on a change in relationship between the parties. In Biodiversity Conservation Alliance v. Stem, 519 F.3d 1226 (10th Cir. 2008) (O'Connor, J. (Ret.)), the court held that this imprimatur was not created by a preliminary injunction, followed by a finding of mootness expressly conditioned on the Forest Service’s commitment not to revive a project. Similarly, fees were not warranted in a case where a court order “merely recognized the fact of the parties’ agreement and dismissed the case because there was no longer a dispute before it.” Bell v. Bd. of County Comm'rs of Jefferson Ct., 451 F.3d 1097 (10th Cir. 2006). Accordingly, in both these cases there was no substantive victory plaintiffs could seek to enforce.

 

          The panel distinguished these cases, holding that the order instructing CIS to naturalize Al-Maleki was a judgment on the merits that conferred prevailing-party status. This was true regardless of whether CIS had “concurrent jurisdiction” with the district court, and regardless of whether CIS continued to actively process Al-Maleki’s application during the litigation; the critical fact that the naturalization occurred after a court order on the merits.

 

          The court further held that the government’s position was not substantially justified. It noted that both CIS’s prelitigation actions and the Government’s litigation positions were relevant. Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007). In the present case, both lacked substantial justification.