Gray v. Secretary for the Department of Homeland Security

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 4, 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[DO NOT PUBLISH]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
________________________
(October 4, 2011)

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Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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
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
The decision was sent to the wrong address.1
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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
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
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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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.”). In this case, the government’s position was substantially justified
because USCIS had acted on Gray’s application within 120 days of his
naturalization application and sent a copy of the decision to Gray, although it
never arrived because it was mistakenly addressed. 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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