     07-1615-cv
     M a v. Chertoff


 1                                UNITED STATES COURT OF APPEALS
 2
 3                                        FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                           August Term, 2008
 8
 9   (Argued: Oct. 24, 2008                                               Decided: November 4, 2008)
10
11                                         Docket No. 07-1615-cv
12
13
14                                               ZHAOXI MA ,
15
16                                                                                  Plaintiff-Appellant,
17
18                                                   –v.–
19
20      MICHAEL CHERTOFF, as Secretary of the United States Department of Homeland Security,
21     EMILIO T. GONZALEZ, as Director of the United States Citizenship and Immigration Service,
22                    DENIS RIORDAN , as Director of CIS Connecticut Office,
23
24                                                                                Defendant-Appellees.
25
26
27
28   Before:
29                     Wesley and Hall, Circuit Judges, and Oberdorfer, District Judge.*
30
31          Appeal from an order of the United States District Court for the District of Connecticut
32   (Kravitz, J.), entered on March 20, 2007, denying appellant’s application for attorney’s fees and
33   costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).
34
35             AFFIRMED .
36
37


        *
         The Honorable Louis F. Oberdorfer, United States District Court for the District of
     Columbia, sitting by designation.
 1                   JASON A. NIELSON , Law Offices of Joe Zhenghong Zhou & Associates PLLC,
 2                         Flushing, New York, for Plaintiff-Appellant.
 3
 4                   SANDRA S. GLOVER , Assistant United States Attorney (Victoria S. Shin, Assistant
 5                        United States Attorney, on the brief), for Kevin J. O’Connor, United States
 6                        Attorney for the District of Connecticut, New Haven, Connecticut, for
 7                        Defendant-Appellees.
 8
 9
10
11   PER CURIAM :

12           Appellant, Zhaoxi Ma, appeals from a March 20, 2007 order of the United States District

13   Court for the District of Connecticut (Kravitz, J.), denying his application for attorney’s fees and

14   costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). We find that

15   Ma is not a “prevailing party” within the meaning of the EAJA and thus affirm the judgment of

16   the district court.

17                                              Background

18           Ma, a native and citizen of China, filed the underlying suit in this action on October 19,

19   2006, seeking a declaratory judgment and mandamus to compel the Defendants to adjust Ma’s

20   status to that of a lawful permanent resident, claiming that United States Citizenship and

21   Immigration Services (“CIS”) erroneously denied his application for permanent resident status.

22   On December 15, 2006, Defendants filed their response to the court’s order to show cause,

23   reporting that on December 11, 2006, CIS had adjusted Ma’s status to that of lawful permanent

24   resident in accordance with his request, had provided him with a temporary green card until his

25   permanent card was processed, and that Ma had already filed adjustment applications for his

26   family as derivative beneficiaries of his lawful permanent resident status.

27           After receipt of the Response, the court held an on-the-record phone conference with the
 1   parties, during which Ma’s counsel did not contest any of the representations of Defendants.

 2   Accordingly, on January 31, 2007, the district court dismissed the case as moot based upon the

 3   uncontested representations of Defendants. Thereafter, on February 9, 2007, Ma timely filed a

 4   Motion for Attorney’s Fees and Costs Pursuant to the EAJA. The district court rejected Ma’s

 5   claim for fees, finding (1) that the Supreme Court’s decision in Buckhannon Bd. & Care Home,

 6   Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) applied to the EAJA, thus

 7   providing the controlling definition of “prevailing party;” and (2) that Ma was not a “prevailing

 8   party” within the meaning of that term as it is used in EAJA. This appeal followed.

 9                                               Discussion

10            The EAJA provides that “a court shall award to a prevailing party other than the United

11   States fees and other expenses, in addition to any costs awarded . . . incurred by that party in any

12   civil action (other than cases sounding in tort), including proceedings for judicial review of

13   agency action, brought by or against the United States . . .” 28 U.S.C. 2412(d)(1)(A). Thus, a

14   threshold requirement for a party seeking fees is to establish that he is a “prevailing party” within

15   the Act’s definition. See, e.g., Pres. Coal. v. Fed. Transit Admin., 356 F.3d 444, 450 n.2 (2d Cir.

16   2005).

17            In Buckhannon, the United States Supreme Court held that a party who has achieved the

18   desired result because his lawsuit brought about a voluntary change in the defendant’s conduct,

19   but who failed to secure a judgment on the merits, is not a “prevailing party” under the

20   Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Fair Housing

21   Amendments Act (“FHAA”), 42 U.S.C. § 3601 et seq.. Buckhannon, 532 U.S. at 601, 605.

22   While Buckhannon arose in the context of the FHAA and ADA, this Court has recognized that its
 1   definition of “prevailing party” extends well beyond those two statutes. See, e.g., Dattner v.

 2   Conagra Foods, Inc., 458 F.3d 98, 102 (2d Cir. 2006) (requests for costs under Rule 54 of the

 3   Federal Rules of Civil Procedure); Pres. Coal. v. Fed. Transit Admin., 356 F.3d 444, 452 (2d Cir.

 4   2004) (National Historic Preservation Act); Union of Needletrades v. Immigration &

 5   Naturalization Serv. (“UNITE”), 336 F.3d 200, 205 (2d Cir. 2003) (Freedom of Information

 6   Act); J.C. v. Reg’l School Dist., 278 F.3d 119, 123, 125 (2d Cir. 2002) (Individuals with

 7   Disabilities Education Act and Rehabilitation Act of 1973); N.Y. Fed’n of Taxi Drivers v.

 8   Westchester County Taxi & Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir. 2001) (fees in

 9   constitutional claims under 42 U.S.C. § 1988). Further, we find nothing in the language or

10   structure of the EAJA to indicate that the term “prevailing party” should bear a different meaning

11   than it has been given in other, similar contexts. Therefore, we join all of the Circuit Courts to

12   have considered this issue and hold that Buckhannon’s definition of “prevailing party” applies to

13   fee requests under the EAJA. See, e.g., Goldstein v. Moatz, 445 F.3d 747, 752 (4th Cir. 2006);

14   Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006); Morillo-Cedron v. U.S.

15   Citizenship & Immigration Serv., 452 F.3d 1254, 1257-58 (11th Cir. 2006); Scherer v. United

16   States, 88 Fed. App’x 316, 320 (10th Cir. 2004); Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492

17   n.1 (D.C. Cir. 2003); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379-81

18   (Fed. Cir. 2002); Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002).

19          Under Buckhannon, to be considered a prevailing party, a plaintiff “must not only achieve

20   some material alteration of the legal relationship of the parties, but the change must also be

21   judicially sanctioned.” Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003) (quoting N.Y. State

22   Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm’n, 272 F.3d 154, 158
 1   (2d Cir. 2001) (internal quotation marks omitted); Buckhannon, 532 U.S. at 604. In this case, the

 2   Defendants voluntarily gave Ma the relief he sought. Indeed, after the Defendants’ actions, the

 3   district court dismissed Ma’s complaint as moot and entered no order on his behalf. Thus, Ma

 4   clearly does not fit the definition of a “prevailing party” as set out in Buckhannon, and is

 5   therefore ineligible for an award of attorneys fees and costs under the EAJA.

 6

 7                                               Conclusion

 8          The district court’s order of March 20, 2007, denying appellant’s application for

 9   attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), is

10   hereby AFFIRMED .

11
