09-2285-cv
Doherty v. Thompson

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of February, two thousand eleven.

PRESENT:

     JOSÉ A. CABRANES,
     DENNY CHIN,
                  Circuit Judges,
     PAUL A. CROTTY,
                  District Judge.*
------------------------------------------------x
DOSALEEN BERNADETTE DOHERTY,

                     Plaintiff-Appellant,

               -v.-                                                                        No. 09-2285-cv
JOHN THOMPSON, District Director, New Jersey District Office,
United States Citizenship and Immigration Services; ALEJANDRO
MAYORKAS, Director of the United States Citizenship and
Immigration Services; JANET NAPOLITANO, Secretary of the
Department of Homeland Security; ERIC HOLDER, Attorney General
of the United States; and UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,

                     Defendants-Appellees.**
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          *
       The Honorable Paul A. Crotty, of the United States District Court for the Southern District
of New York, sitting by designation.
          **
           The Clerk of Court is directed to amend the official caption in this case to conform to the
listing of the parties above.
                                                                   1
FOR PLAINTIFF-APPELLANT:                        EAMONN DORNAN, Dornan & Assocs., PLLC,
                                                Long Island City, NY.

FOR DEFENDANTS-APPELLEES:                       CHRISTOPHER CONNOLLY, Assistant United States
                                                Attorney (Preet Bharara, United States Attorney, on
                                                the brief; and Benjamin H. Torrance, Assistant
                                                United States Attorney, of counsel), United States
                                                Attorney’s Office for the Southern District of New
                                                York, New York, NY.

        Appeal from a March 26, 2009, order of the United States District Court for the Southern
District of New York (Richard J. Holwell, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

         Plaintiff-Appellant, Rosaleen Bernadette Doherty, seeks review of a District Court order
denying her request for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”) following the dismissal of her underlying claim, which sought to compel the United
States Citizenship and Immigration Services (“CIS”) to adjudicate her application for naturalization
or, in the alternative, to enter an order naturalizing her pursuant to 8 U.S.C. § 1447(b). The
District Court determined that Doherty was not a “prevailing party” under the EAJA as
determined by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department
of Health & Human Resources, 532 U.S. 598 (2001). Doherty v. Thompson, 603 F. Supp. 2d 745, 747-48
(S.D.N.Y. 2009). Doherty brought a timely appeal. We assume the parties’ familiarity with the
underlying facts and the procedural history.

        Whether Doherty is a “prevailing party” under the EAJA is a question of law, which we
review de novo. Vacchio v. Ashcroft, 404 F.3d 663, 672 (2d Cir. 2005). Undertaking that review, we
affirm, substantially for the reasons set forth by the District Court in its ruling of March 26, 2008,
the denial of attorney’s fees pursuant to 28 U.S.C. § 2412. Doherty, 603 F. Supp. 2d at 747-48.
Specifically, we agree with the District Court that when a plaintiff achieves the result it sought
“because the lawsuit brought about a voluntary change in the defendant’s conduct,” Buckhannon,
532 U.S. at 600, it is not a “prevailing party.” See Ma v. Chertoff, 547 F.3d 342, 344 (2d Cir. 2008).
Indeed, we agree with the District Court that, contrary to Doherty’s claims, a court order setting
the case for trial does not “result[ ] in a change in the legal relationship between the parties
sufficient to confer prevailing party status.” Doherty, 603 F. Supp. 2d at 748. Here, as in Ma,
“[CIS] voluntarily gave [Doherty] the relief [s]he sought . . . [and] thus, [Doherty] clearly does not




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fit the definition of a ‘prevailing party’ . . . and is therefore ineligible for an award of attorney’s fees
and costs under the EAJA.” Ma, 547 F.3d at 344.1

                                            CONCLUSION

        We have considered each of Doehrty’s arguments on appeal and find them to be without
merit. For the reasons stated above, the judgment of the District Court is AFFIRMED.

                                                  FOR THE COURT
                                                  Catherine O’Hagan Wolfe, Clerk




        1
         Indeed, even if the District Court had remanded the matter for a stipulated resolution
following independent action by CIS, see Bustamante v. Napolitano, 582 F.3d 403, 404 (2d Cir. 2009),
instead of dismissing for want of subject matter jurisdiction under Fed. R. Civ. Pro. 12(h)(3),
Doherty would still not be a “prevailing party.” See Pres. Coalition of Erie Cnty. v. Fed. Transit Auth.,
356 F.3d 444, 451 (2d Cir. 2004). Whether or not the District Court erred with regard to the
dismissal of this case is therefore irrelevant to our review of its denial of a request for attorney’s fees.


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