           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 23, 2008

                                     No. 08-20034                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


NEDAL OTHMAN

                                                  Plaintiff-Appellant
v.

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND
SECURITY; EMILIO GONZALEZ; SHARON HUDSON; ROBERT
MUELLER

                                                  Defendants-Appellees



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:07-MC-352


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This is an appeal from the denial of attorneys’ fees under the Equal Access
to Justice Act. We AFFIRM.
       On February 16, 2006, Nedal Othman, who had been a lawful permanent
resident alien since May 2001, filed an application for naturalization to become
a United States citizen with Citizenship and Immigration Services (“CIS”), a


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-20034

bureau within the Department of Homeland Security.           CIS is required to
interview each applicant. Once that interview takes place, CIS has 120 days to
decide whether the applicant will be granted citizenship. 8 U.S.C. §§ 1446-1447.
CIS interviewed Othman on May 12, 2006, but a determination was not made
within the 120-day deadline. See Walji v. Gonzales, 500 F.3d 432, 433 (5th Cir.
2007) (the 120 day period begins to run after the application interview).
      Accordingly, on June 27, 2007, Othman filed suit in the district court,
asserting his statutory right to judicial intervention:
      If there is a failure to make a determination [on the application for
      naturalization] 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 [CIS] to determine the matter.

8 U.S.C. § 1447(b). After the district court accepted jurisdiction, the government
requested that the district court remand the case to CIS. Othman did not oppose
that motion. The district court remanded and instructed CIS to rule on the
application no later than January 25, 2008. The government informed the court
that Othman’s application had been approved on November 9, 2007.
      Othman subsequently filed a motion in the district court for an entry of
final judgment and for an award of attorneys’ fees. The district court denied
Othman’s request for a final judgment, explaining that the “order of remand is
not a judgment.” The district court also denied Othman’s request for attorneys’
fees without explanation. Othman appealed to this court. We issued a stay and
ordered a limited remand because it was unclear whether the district court had
entered a final judgment. On July 17, 2008, the district court entered an order
of final dismissal, noting that Othman’s naturalization claim was now moot



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because he previously had been granted citizenship. His request for attorneys’
fees was again denied. This appeal followed.
                                    Discussion
      The district court rejected Othman’s request for attorneys’ fees under the
Equal Access to Justice Act. The statute provides that
      [e]xcept as otherwise specifically provided by statute, a court shall
      award to 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 against the United States in
      any court having jurisdiction of that action, brought by or 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). We review a district court’s decision on attorneys’ fees
under the statute for an abuse of discretion. United Bhd. of Carpenters &
Joiners of Am., Local 2848 v. NLRB, 891 F.2d 1160, 1162 (5th Cir. 1990).
However, whether a party prevailed for purposes of the statute is a legal issue
reviewed here de novo. Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005).
      To receive prevailing-party status, a plaintiff “must (1) obtain actual relief,
such as an enforceable judgment or a consent decree; (2) that materially alters
the relationship between the parties; and (3) modifies the defendant’s behavior
in a way that directly benefits the plaintiff at the time of the judgment or
settlement.” Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir. 2002)
(citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
      We need look no further than the first consideration to determine that
Othman was not a prevailing party in this litigation. 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

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confer prevailing-party status on Othman. See Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).
      Othman suggests that an opinion by the First Circuit compels a different
result. See Aronov v. Chertoff, 536 F.3d 30 (1st Cir. 2008). In Aronov, the
plaintiff and the government filed a joint motion requesting that the court
“remand this matter to USCIS so that it can grant plaintiff’s application for
naturalization and schedule plaintiff for an oath ceremony . . . .” Id. at 33.
Thus, the court ordered a particular result to be reached by CIS. Id. at 35.
Here, the district court did not enter any decision about the merits of Othman’s
naturalization application. The government only received Othman’s background
report – a statutory prerequisite for naturalization – from the FBI after the case
was remanded. Othman is not entitled to fees under the Act.
      The district court’s order is AFFIRMED.




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