                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-10919             DECEMBER 7, 2011
                                        Non-Argument Calendar           JOHN LEY
                                      ________________________           CLERK

                                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
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opinion in this case is withdrawn and the following opinion is substituted in its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 decision1 and so in January 2010 he filed a lawsuit, proceeding pro se,

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


         1
             The decision was sent to the wrong address.

                                                  2
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



       2
         Because Gray is proceeding pro se, we read his briefs liberally. Harris v. United Auto
Ins. Group, 579 F.3d 1227, 1231 n.2 (11th Cir. 2009).

                                               3
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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