                                                                            FILED
                                                                United States Court of Appeals
                                     PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                    August 21, 2012

                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court


SHAHID IQBAL,

             Plaintiff-Appellant,

v.                                                        No. 11-6231

ERIC H. HOLDER, JR., Attorney
General of the United States; JANET
NAPOLITANO, Secretary of Homeland
Security; ROBERT S. MUELLER, III,
Director, Federal Bureau of
Investigations; JOSE R. OLIVARES,
Oklahoma Field Office Director, United
States Citizenship and Immigration
Services; SANFORD COATS, United
States Attorney, Western District of
Oklahoma,

             Defendants-Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF OKLAHOMA
                     (D.C. No. 5:10-CV-00633-F)


Submitted on the briefs:*

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
E. Vance Winningham, Ken Feagins, of Counsel, Winningham, Stein & Basey,
Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Jeffrey S.
Robins, Assistant Director, Aaron S. Goldsmith, Senior Litigation Counsel,
Katherine E.M. Goettel, Trial Attorney, United States Department of Justice, Civil
Division, Office of Immigration and Litigation, Washington, D.C., for Defendants-
Appellees.



Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


BRORBY, Circuit Judge.


      Shahid Iqbal appeals the district court’s denial of his motion for attorney fees

under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    Background

      Mr. Iqbal is a native and citizen of Pakistan who acquired lawful permanent

residency in the United States in 2002. On July 11, 2008, he filed an application for

naturalization with the United States Citizenship and Immigration Services (USCIS).

On August 17, 2009, he successfully passed a naturalization examination, see

8 U.S.C. § 1446, but the USCIS did not adjudicate his application due to an ongoing

background check by the FBI. On January 11, 2010, Mr. Iqbal met with a USCIS

officer who told him his case remained under review.




                                         -2-
      On June 18, 2010, still having received no decision on his application,

Mr. Iqbal filed the underlying action pursuant to 8 U.S.C. § 1447(b), which

authorizes a petition to the district court for a hearing on a naturalization application

when “there is a failure to make a determination . . . before the end of the 120-day

period after the date on which the examination is conducted under [§ 1446].” The

statute further provides that the district court “has jurisdiction over the matter and

may either determine the matter or remand the matter, with appropriate instructions,

to the Service to determine the matter.” 8 U.S.C. § 1447(b).1

      In his petition, Mr. Iqbal asked the district court (1) to take jurisdiction; (2) to

find that the FBI unreasonably and unlawfully delayed completing the background

check and providing the results to the USCIS; (3) to direct the FBI to complete all

necessary checks within thirty days; (4) to review his application, determine that he

met the citizenship requirements, grant him naturalization, and issue a Certificate of

Citizenship; (5) to order a hearing if necessary; and (6) to provide any further relief

deemed just and necessary.

      On September 13, 2010, the USCIS denied Mr. Iqbal’s naturalization

application on the ground that he had not met the physical presence requirements for


1
       The term “Service” is defined as “the Immigration and Naturalization Service
of the Department of Justice,” 8 U.S.C. § 1101(a)(34), commonly referred to as the
INS. But “[t]he INS ceased to exist on March 1, 2003, and its functions were
transferred to the [USCIS] within the newly formed Department of Homeland
Security.” Batalova v. Ashcroft, 355 F.3d 1246, 1248 n.1 (10th Cir. 2004).
Accordingly, we read the statutory definition of “Service” to mean the USCIS.


                                           -3-
naturalization. Based on the denial, defendants filed a motion to dismiss Mr. Iqbal’s

§ 1447(b) petition as moot. In the alternative, defendants asked the district court to

decline jurisdiction in deference to the agency’s expertise in adjudicating

naturalization applications. The district court denied the motion to dismiss,

concluding that once Mr. Iqbal filed his petition, the USCIS no longer had

jurisdiction to adjudicate the naturalization application. In reaching this conclusion,

the court noted there was no governing Tenth Circuit precedent, so it relied on dicta

in Al-Maleki v. Holder, 558 F.3d 1200 (10th Cir. 2009). In that case, we found

persuasive the reasoning of the Ninth and Fourth Circuits that the filing of a

§ 1447(b) petition vests exclusive jurisdiction over a naturalization application in the

federal district court, but we did not decide the issue ourselves. Id. at 1205 n.2.

Having concluded that it had exclusive jurisdiction, the district court opted to remand

the matter to the USCIS for further proceedings, as provided for in § 1447(b), rather

than determine the merits of Mr. Iqbal’s petition itself. The court stated:

      As the USCIS has already denied plaintiff’s application, the court
      provides the following instructions on remand. The USCIS may
      determine how to best proceed on remand. Nothing in this order is
      intended to require the USCIS to change its earlier determination of the
      merits of the application. The USCIS shall, however, determine
      whether reconsideration of the merits is called for and shall issue an
      order accordingly. If the USCIS finds that reconsideration is
      appropriate, then the USCIS shall reconsider the plaintiff’s application
      and notify the parties of the result. Plaintiff should recognize that even
      if the USCIS decides to reconsider the merits of his application, the
      ultimate result may not change.




                                          -4-
Aplt. App. at 23-24. The remand order was filed on January 4, 2011, and the court

terminated the case on that date.2

      Mr. Iqbal then filed a motion on January 7, 2011, asking the court to amend its

remand order to include a forty-five-day deadline for USCIS action. On January 19,

the USCIS reissued its September 13 decision denying Mr. Iqbal’s naturalization

application. On January 26, Mr. Iqbal filed a motion for summary judgment on his

§ 1447(b) petition. On February 2, the district court denied Mr. Iqbal’s motion to

amend the remand order because the USCIS had already denied Mr. Iqbal’s

naturalization application. The court also struck the motion for summary judgment

based on its conclusion that the remand deprived it of jurisdiction over the merits of

Mr. Iqbal’s naturalization application.

      On April 5, 2011, Mr. Iqbal filed his motion for an award of attorney fees and

expenses under EAJA. In relevant part, EAJA mandates such an award to a

“prevailing party other than the United States . . . 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). Mr. Iqbal argued that he was a

prevailing party because the district court denied the government’s motion to dismiss

for lack of jurisdiction and remanded the case to the USCIS pursuant to § 1447(b) for


2
       In their reply in support of their motion to dismiss, defendants added an
alternative request that the court remand the case to the USCIS out of deference to
the agency’s expertise handling naturalization applications. The district court did not
state whether its remand was based on that request.


                                           -5-
a determination of the merits of his naturalization application. He also argued that

the government’s delay on his application and its position on its motion to dismiss

for lack of jurisdiction were not substantially justified.

       The district court denied the fee motion on July 6, 2011, concluding that

Mr. Iqbal was not a prevailing party because he had obtained no judicial

determination on the merits of his claims, the court had not ordered the USCIS or the

FBI to act within a certain period of time, and the court had not retained jurisdiction

after remanding the matter to the agency. The court concluded in the alternative that

the government’s prelitigation delay was substantially justified on the ground of

public safety and national security, and that its litigation position on the jurisdictional

issue was also substantially justified because of the lack of Tenth Circuit law

concerning whether the USCIS retains jurisdiction to adjudicate naturalization

applications after an applicant files a § 1447(b) petition.

       Meanwhile, Mr. Iqbal filed a motion for reconsideration of his naturalization

application with the USCIS. By letter dated July 1, 2011, the USCIS informed

Mr. Iqbal that it was withdrawing its January 19 denial of his application because he

had overcome the grounds for the denial in his motion for reconsideration. The

USCIS ultimately granted Mr. Iqbal’s application and conferred United States

citizenship upon him on August 26, 2011.




                                           -6-
II.    Discussion

       Mr. Iqbal appeals the district court’s denial of his EAJA motion. As we base

our decision on the district court’s prevailing-party determination, we need not

review its conclusion that the government’s position was substantially justified. We

review the prevailing-party determination de novo. Al-Maleki, 558 F.3d at 1204.

       In determining that Mr. Iqbal was not a prevailing party under 28 U.S.C.

§ 2412(d)(1)(A), the district court applied the standard set out in Buckhannon Board

& Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532

U.S. 598 (2001). In Buckhannon, the Supreme Court rejected the so-called “‘catalyst

theory,’ which posits that a plaintiff is a ‘prevailing party’ if it achieves the desired

result because the lawsuit brought about a voluntary change in the defendant’s

conduct.” Id. at 601. The Court concluded that “prevailing party” is “a legal term of

art,” id. at 603, and it does not “include[] a party that has failed to secure a judgment

on the merits or a court-ordered consent decree, but has nonetheless achieved the

desired result because the lawsuit brought about a voluntary change in the

defendant’s conduct,” id. at 600. Instead, there must be a “material alteration of the

legal relationship of the parties.” Id. at 604 (quotation omitted). A party is not a

prevailing party if its lawsuit does not result in a “judicially sanctioned change in the

legal relationship of the parties.” Id. at 605. There must be some “judicial

imprimatur on the change.” Id. And as we have interpreted Buckhannon, “a court

order that favors one party but does not entitle that party to some method of


                                           -7-
enforcing the merits of the claim is insufficient to qualify that party for attorneys’

fees as a ‘prevailing party.’” Biodiversity Conservation Alliance v. Stem, 519 F.3d

1226, 1230 (10th Cir. 2008).

      Mr. Iqbal correctly points out that Buckhannon was not an EAJA case, and he

argues that this makes a difference because a core purpose of EAJA “is to eliminate

for the average person the financial disincentive to challenge unreasonable

governmental actions,” Astrue v. Ratliff, 130 S. Ct. 2521, 2530 (2010)

(Sotomayor, J., concurring) (quotation omitted). He therefore asks us to apply

Kopunec v. Nelson, 801 F.2d 1226 (10th Cir. 1986), which he categorizes as a

catalyst-theory case, not Buckhannon.

      We decline to do so. Although we have applied the Buckhannon interpretation

of “prevailing party” in two published EAJA cases, we have not expressly explained

why it was proper to do so. See Al-Maleki, 558 F.3d at 1204-06; Biodiversity

Conservation Alliance, 519 F.3d at 1229-31.3 We take the opportunity to do so here.

As noted, the Supreme Court in Buckhannon was construing “a legal term of art”—

namely, “prevailing party,”—used in many fee-shifting statutes. 532 U.S. at 603.

The court observed that it had consistently interpreted the numerous fee-shifting

statutes listed in the appendix to Justice Brennan’s dissent in Marek v. Chesny,


3
       We have expressly concluded in an unpublished case that Buckhannon’s
construction of “prevailing party” “applies with equal force to the prevailing party
provisions in EAJA. Scherer v. United States, 88 F. App’x 316, 320 n.5 (10th Cir.
2004).


                                          -8-
473 U.S. 1, 43-51 (1985). Buckhannon, 532 U.S. at 602-03 & n.4. The Marek

appendix included EAJA. 473 U.S. at 49. Moreover, in enacting EAJA, it was the

House Committee’s intention that the definition of “prevailing party” “be consistent

with the law that has developed under existing [fee-shifting] statutes.” H.R. Rep.

96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4990. Thus, we

conclude that Buckhannon’s interpretation of the term “prevailing party” applies to

that term as used in 28 U.S.C. § 2412(d)(1)(A).

      Other circuits that have considered the issue have reached the same

conclusion—that Buckhannon applies to § 2412(d)(1)(A). See, e.g., Aronov v.

Napolitano, 562 F.3d 84, 88-89 (1st Cir. 2009); Ma v. Chertoff, 547 F.3d 342, 344

(2d Cir. 2008); Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006); Morillo-

Cedron v. Dist. Dir. for U.S. Citizenship & Immigration Servs., 452 F.3d 1254,

1257-58 (11th Cir. 2006); Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492 n.1 (D.C.

Cir. 2003); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1376-79

(Fed. Cir. 2002); Perez-Arellano v. Smith, 279 F.3d 791, 794-95 (9th Cir. 2002).

And some circuits have applied Buckhannon to § 2412(d)(1)(A) without further

analysis. See Othman v. Chertoff, 309 F. App’x 792, 794 (5th Cir. 2008); Marshall v.

Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006).

      As to Mr. Iqbal’s reliance on Kopunec, we conclude that Kopunec is consistent

with Buckhannon. In Kopunec, the district court issued a preliminary injunction

against deportation and remanded the matter to the INS for further proceedings after


                                         -9-
concluding that the agency had committed a factual error regarding an automatic visa

revocation and had not followed established visa revocation proceedings. 801 F.2d

at 1227. The court also granted Mr. Kopunec’s motion for EAJA fees under

§ 2412(d)(1)(A). Id. at 1227-28 & n.2. We concluded that the district court did not

abuse its discretion in determining that Mr. Kopunec was a prevailing party,

reasoning that his “avoidance of immediate deportation by obtaining a reversal of the

INS’s automatic revocation of his visa and a preliminary injunction against

deportation constitutes a substantial victory of his position.” Id. at 1229. Thus, the

relief Mr. Kopunec obtained was a “judicially sanctioned change in the legal

relationship of the parties,” Buckhannon, 532 U.S. at 605; it did not result from any

catalyst effect his § 1447(b) petition had on agency action.

      Having decided that the Buckhannon interpretation of “prevailing party”

applies to § 2412(d)(1)(A) and that Kopunec is not to the contrary, we conclude that

Mr. Iqbal was not a prevailing party. The district court decided nothing about the

merits of his petition or his naturalization application. Nor did it grant any of the

specific relief requested in his petition. Instead, the court simply remanded for the

USCIS to determine the merits of the application. Thus, it did not lend its

imprimatur to any change in the parties’ legal relationship. See id. And clearly there

was no consent decree. See id. at 604. The only legal “victory” for Mr. Iqbal

occurred when the district court remanded the case to the agency rather than

dismissing it as moot after the USCIS issued its September 2010 denial of his


                                          - 10 -
naturalization application. That sort of victory is not the type of legal victory

sufficient to confer prevailing-party status on Mr. Iqbal. See id. at 605 (rejecting

notion that establishing that a complaint can withstand a motion to dismiss for lack of

jurisdiction makes a plaintiff a prevailing party). Further, the district court’s remand

order stands in stark contrast to the victory held sufficient in Kopunec to confer

prevailing party status. And even though the remand order “favor[ed]” Mr. Iqbal, it

did not “entitle [him] to some method of enforcing the merits of [his] claim.”

Biodiversity Conservation Alliance, 519 F.3d at 1230. Therefore, it was “insufficient

to qualify [him] for attorneys’ fees as a ‘prevailing party.’” Id.

      Mr. Iqbal also relies on Al-Maleki, but like Kopunec, that case is consistent

with Buckhannon and distinguishable from Mr. Iqbal’s. In Al-Maleki, we affirmed an

EAJA award under Buckhannon principles because the district court ordered a

remand with instructions that the USCIS naturalize Mr. Al-Maleki by a date certain.

558 F.3d at 1203. That “order placed the weight of judicial authority behind

USCIS’s stipulation that Al-Maleki was entitled to be naturalized by imposing a

judicially enforceable obligation on USCIS to naturalize Al-Maleki by a date

certain.” Id. at 1206. Here, the district court’s remand order simply instructed the

USCIS to determine the merits of Mr. Iqbal’s naturalization application; it did not

order the USCIS to naturalize him, and it did not order the USCIS to adjudicate the




                                          - 11 -
application by a date certain. To the contrary, it left the matter to the USCIS’s

discretion “how to best proceed on remand.” Aplt. App. at 23.4

III.   Conclusion

       For the foregoing reasons, we conclude that Mr. Iqbal was not a prevailing

party under 28 U.S.C. § 2412(d)(1)(A). On that basis alone, he is not entitled to an

EAJA award, and we need not consider whether the position of the United States was

substantially justified. The judgment of the district court is AFFIRMED.




4
       In his reply brief, Mr. Iqbal cites four additional cases awarding EAJA fees,
arguing that they display “better legal reasoning” than either the district court’s
decision or the appellees’ brief. Aplt. Reply Br. at 4. We see no reason to deviate
from the general rule that “[w]e do not consider arguments raised for the first time in
a reply brief.” United States v. Murray, 82 F.3d 361, 363 n.3 (10th Cir. 1996).

                                         - 12 -
