Jeff Gray v. Secretary for the Department of Homeland Security, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 7, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10919
Non-Argument Calendar
________________________
D.C. Docket No. 9:10-cv-80048-KLR
JEFF GRAY,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF HOMELAND SECURITY,
DIRECTOR OF THE US CITIZENSHIP AND IMMIGRATION SERVICES
(USCIS),
DISTRICT DIRECTOR,
Eastern Region Field Offices, USCIS,
W. PALM BCH. FIELD OFFICE USCIS,
Field Office Director,
lllllllllllllllllllllllllllllllllllllll lDefendants–Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 7, 2011)
ON PETITION FOR REHEARING

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Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
The appellant’s petition for rehearing is granted. The panel’s previous
opinion in this case is withdrawn and the following opinion is substituted in its
place:
Jeff Gray is a lawful-permanent resident of the United States whose
naturalization application was denied in October 2007 by the United States Bureau
of Citizenship and Immigration Services (USCIS). But Gray never received a
copy of that decision and so in January 2010 he filed a lawsuit, proceeding pro se,1
under 8 U.S.C. § 1447(b) because he believed that USCIS had failed to render a
decision within 120 days of his naturalization examination. The district court
agreed and remanded Gray’s case to USCIS so that it could render a decision and
Gray could request a hearing on that decision if his application were denied.
As required by the district court’s remand order, USCIS sent Gray a copy of
his immigration file. The bureau then sent him a letter that said it would not
reopen his case because the grounds on which it had originally denied his
application in October 2007 were still applicable, but that he could request a
hearing on its “decision.” Gray responded by filing a motion for an order to show
The decision was sent to the wrong address.1
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cause. That motion was denied, but the district court ordered USCIS to send Gray
a copy of its “decision” within two days. In August 2010, USCIS sent Gray
another letter denying his application and telling him that he could request a
hearing. Gray then filed another motion for an order to show cause and a motion
for injunctive relief. Finally Gray filed a motion for costs. All of those motions
were denied. Gray then filed this appeal.2
But since Gray appealed, USCIS has once again reviewed Gray’s
naturalization application and issued a new decision. Because USCIS’s actions
have provided Gray the relief he sought in his lawsuit, his appeal from the district
court’s denial of his motion for an order to show cause and his motion for
injunctive relief is moot. Jacksonville Prop. Rights Ass’n v. City of Jacksonville,
635 F.3d 1226, 1274 (11th Cir. 2011). Accordingly, we are without jurisdiction to
consider those aspects of Gray’s appeal and we dismiss them. But we still must
consider whether Gray was entitled to costs under the Equal Access to Justice Act
(EAJA).
We review an order denying costs under the EAJA for abuse of discretion.
United States v. Adkinson, 247 F.3d 1289, 1290 (11th Cir. 2001). Under the
Because Gray is proceeding pro se, we read his briefs liberally. Harris v. United Auto2
Ins. Group, 579 F.3d 1227, 1231 n.2 (11th Cir. 2009).
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EAJA, as a prevailing party, Gray would be entitled to costs, but not fees because
he was proceeding pro se, unless the government’s position in the litigation was
substantially justified. 28 U.S.C. § 2412(d)(1)(A); see also Clarkson v. IRS, 678
F.2d 1368, 1371 (11th Cir. 1982) (“Unlike attorney fees, however, costs of
litigation can be reasonably incurred even by a pro se litigant who is not an
attorney.”). Although the government had not acted on Gray’s application within
120 days of his naturalization examination, its position was still substantially
justified because USCIS had acted on Gray’s application and sent a copy of the
decision to Gray before he filed suit, even though the decision never reached him
because it was sent to the wrong address. Accordingly, the district court did not
abuse its discretion in denying Gray’s application for costs.
DISMISSED in part, AFFIRMED in part.
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