                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 25, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 OLEG ALEXANDROVICH
 STARYKH,

               Plaintiff - Appellee,                     No. 07-4258
          v.                                               (D. Utah)
 ERIC H. HOLDER, JR., * Attorney               (D.C. No. 2:07-CV-00058-BSJ)
 General; JANET NAPOLITANO, **
 Secretary of Department of Homeland
 Security; ALFONSO AGUILAR,
 Chief of Office of Citizenship;
 ROBERT S. MUELLER, III, Director
 of Federal Bureau of Investigation,

               Defendants - Appellants.


                           ORDER AND JUDGMENT ***


Before HENRY, Chief Judge, TACHA, and MURPHY, Circuit Judges.




      *
      Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as United States Attorney General, effective February 3,
2009.
      **
       Pursuant to Fed. R. App. P. 43(c)(2), Janet Napolitano is substituted for
Michael Chertoff as Secretary of Department of Homeland Security, effective
January 21, 2009.
      ***
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.     Introduction

       Oleg Alexandrovich Starykh, the appellee in this matter, filed a petition

pursuant to 8 U.S.C. § 1447(b) after United States Citizenship and Immigration

Services (USCIS) failed to adjudicate his application for naturalization within 120

days. The district court resolved the matter by remanding to USCIS “with

instructions to administer the oath of citizenship to [Starykh] on or before July

18, 2007.” Thereafter, Starykh filed a motion seeking an award of attorneys’ fees

under the Equal Access to Justice Act (“EAJA”). The district court concluded

Starykh was the prevailing party in the § 1447(b) matter. It further concluded

neither the underlying agency action nor Defendants’ litigation position was

substantially justified. Accordingly, the court granted Starykh’s motion and

awarded him $7629 in attorneys’ fees. Defendants appeal, challenging both of the

district court’s conclusions relating to the award of attorneys’ fees. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the judgment of the

district court.

II.    Background

       Starykh filed a naturalization application with USCIS on October 18, 2005.

On November 14, 2005, USCIS filed a request for a name check with the FBI.

Starykh was interviewed and examined by USCIS on February 1, 2006, and told

he met the statutory requirements for naturalization but his application could not

be adjudicated until the FBI completed the name check. One year after his

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examination, Starykh’s application had not been adjudicated to finality,

prompting him to file a petition in federal court seeking a judgment that he was

entitled to naturalization or, in the alternative, a remand to USCIS with

instructions to adjudicate his application within fifteen days. See 8 U.S.C.

§ 1447(b) (providing an applicant with a judicial remedy if USCIS fails to

adjudicate a naturalization application within 120 days of the examination).

      In lieu of an answer to Starykh’s petition, Defendants filed a motion

seeking an unrestricted remand of the matter to USCIS “for the purpose of

adjudicating [Starykh’s] naturalization application and scheduling a naturalization

proceeding when the application is approved.” In the alternative, Defendants

asked the court to stay the matter pending completion of the FBI name check.

The district court denied Defendants’ motion and ordered them to file an answer

to Starykh’s petition detailing the specific facts relating to the processing of his

application. Defendants filed their answer on June 11, 2007, and, therein,

informed the court the FBI completed Starykh’s name check on June 6, 2007.

Starykh responded by filing a motion seeking a remand of the matter to USCIS

with instructions to administer the oath of citizenship to him within fifteen days.

The district court granted Starykh’s motion and entered an order specifically

instructing USCIS “to administer the oath of citizenship to [Starykh] on or before

July 18, 2007.”




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       After the naturalization ceremony, Starykh filed a motion seeking

attorneys’ fees pursuant to the EAJA. 28 U.S.C. § 2412. The district court

granted the motion over Defendants’ objection, concluding Starykh was the

prevailing party in the § 1447(b) proceeding and further concluding neither the

underlying agency action nor Defendants’ litigation position was substantially

justified. It is from this ruling Defendants appeal.

III.   Discussion

       The EAJA provides that “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.” 28 U.S.C. § 2412(d)(1)(A). This court reviews de novo the

question of prevailing party status. Al-Maleki v. Holder, No. 07-4260, 2009 WL

692612, at *2 (10th Cir. March 18, 2009). A prevailing party is not entitled to

attorneys’ fees if the position of the United States was substantially justified. Id.

The government bears the burden of demonstrating its position was substantially

justified and we review the district court’s ruling on the issue for an abuse of

discretion. Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007).

       Defendants challenge the district court’s conclusion that Starykh was the

prevailing party and its additional conclusion that the position of the United

States was not substantially justified. Having reviewed the entire record and

considered the arguments of the parties on appeal, we conclude the prevailing

party question presented in this appeal is controlled by our analysis of the same

                                         -4-
issue in Al-Maleki v. Holder. Further, the record in this case relevant to the

question of whether the position of the United States was substantially justified

does not differ in any material way from the record on the same issue in Al-

Maleki. Accordingly, the district court’s determination that Starykh was the

prevailing party in the § 1447(b) matter and its conclusion that the position of the

United States was not substantially justified are affirmed.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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