Opinion
02 Civ. 9068 (RWS)
October 30, 2003
Jeffrey A. Feinbloom, Esq., Feinbloom Bertish, New York, NY, of Counsel for Petitioner
James B. Comey, F. James Loprest, JR., New York, NY, of Counsel for Respondent
OPINION
Petitioner Roberto Jimenez ("Jimenez") moved for summary judgment and counsel fees, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Respondent United States Immigration and Naturalization Service ("INS") cross-moved to dismiss the complaint for lack of subject matter jurisdiction, as moot, and for insufficient service of process, pursuant to Rule 12(b)(1) and (5) of the Federal Rules of Civil Procedure.
On March 1, 2003, the INS ceased to exist as an independent agency within the United States Department of Justice, and its functions respecting the adjudication of applications for immigration benefits were assumed by the Bureau of Citizenship and Immigration Services ("BCIS") in the United States Department of Homeland Security.
For the reasons set forth below, Jimenez's motion for summary judgment is denied as moot, and his motion for counsel fees is denied as premature. INS's cross-motion to dismiss the complaint as moot is granted.
Prior Proceedings
In April 2000, Jimenez filed an application with the INS's New York District to become a naturalized citizen of the United States. On or about April 5, 2001, the INS examined Jimenez in connection with his application for naturalization, pursuant to INA § 312(a), 8 U.S.C. § 1423(a).
On May 23, 2001 the District Director of INS's New York District issued a decision denying Jimenez's naturalization application. The District Director concluded that Jimenez had failed to adequately demonstrate that he met the statutory requirement of good moral character because he had provided the INS with false testimony to obtain an immigration benefit.
Jimenez filed an administrative appeal of the District Director's decision in the form of a request for a hearing on the decision before a senior naturalization examiner, pursuant to INA § 336(a), 8 U.S.C. § 1447. On or about February 25, 2002, the INS conducted a hearing and requested that Jimenez submit his brother's death certificate in connection with his naturalization application. On July 20, 2002, the INS District Director issued a decision confirming his original denial of Jimenez's naturalization application on the ground that Jimenez had failed to submit his bother's death certificate, as requested by the INS.
On September 4, 2002, Jimenez filed the instant petition, pursuant to INA § 310(c), 8 U.S.C. § 1421 (c), seeking an order granting his application for naturalization.
In July 2003, the BCIS reconsidered the decision denying Jimenez's naturalization application and requested that the FBI conduct a statutorily-mandated investigation of Jimenez's background in connection with his application. On October 1, 2003, following the completion of the FBI investigation, the BCIS granted Jimenez's application. The BCIS scheduled an oath for petitioner to be sworn in as a naturalized citizen on October 24, 2003.
This motion was marked fully submitted on October 22, 2003. Jimenez's Summary Judgment Motion is Dismissed as Moot
Oral argument on these motions was also scheduled on this date, but only counsel for INS appeared. Jimenez further filed no reply papers responding to INS's opposition and cross-motion.
Federal courts may decide only "live" cases or controversies. U.S. Const., art. II; see also Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 (1964); Irish Lesbian and Gav Org. v. Guiliani, 143 F.3d 638, 647 (2d Cir. 1998); Zapata v. INS, 93 F. Supp.2d 355, 358 (S.D.N.Y. 2000) ("Federal district courts do no have subject matter jurisdiction over moot cases."). Thus, under Rule 12(h)(3) of the Federal Rules of Civil Procedure, "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."
Here, the BCIS has granted Jimenez's naturalization application and scheduled an oath ceremony for October 24, 2003. To the extent Jimenez seeks an order "[g]ranting the Petitioner's application for naturalization" and "[d]irecting [the] INS to schedule Petitioner to appear at a naturalization oath ceremony," his petition should be dismissed. (Petition ¶¶ i, ii.)
Jimenez's Motion for Counsel Fees is Dismissed as Premature
Jimenez further moves for counsel fees under the EAJA, 28 U.S.C. § 2412. The EAJA provides that, in a non-tort civil action between the United States and eligible parties, "a court shall award to a prevailing party other than the United States fees and other expenses . . . 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). However, a party seeking an award must submit its application "within thirty days of final judgment in the action." Id. at § 2412(d)(1)(B). Furthermore, as the Supreme Court explained, "[t]he plain language makes clear that `a final judgment' under § 2412 can only be the judgment of a court of law." Melkonyan v. Sullivan, 501 U.S. 89, 94 (1991). "The 30-day EAJA clock begins to run after the time to appeal that `final judgment' has expired." Id. at 96.
In United States v. 27.09 Acres of Land, 1 F.3d 107 (2d Cir. 1993), the Second Circuit relied upon Melkonyan to vacate the decision of a district judge denying EAJA fees. The court held that there was no "final order" although the case had lain dormant for three years after the government withdrew its appeal for an interlocutory order. In the 27.09 Acres of Land case, as here, there was "neither entry of a final judgment, nor the docketing of a settlement order or any order terminating this action." Id. at 111. The court further explained,
The parties owe the district court such efforts as needed to achieve formal closure of legal proceedings; they cannot expect that mooted cases can be parked on the docket for possible further use in unforeseen circumstances or that the district court by administrative order will tie up litigants' loose ends by dismissing open cases on its own motion.Id.
The lack of a final judgment is even more apparent here where Jimenez simultaneously moved for summary judgment and counsel fees on September 24, 2003, and oral argument on both motions was scheduled for October 22, 2003. This application is therefore "premature" and currently there is no jurisdiction to decide it. See 27.09 Acres of Land, 1 F.3d at 11.
Conclusion
For the reasons set forth, Jimenez's motion for summary judgment is denied as moot, and INS's cross-motion to dismiss the complaint as moot is granted. Jimenez's motion for counsel fees is denied at this time as premature with leave granted to renew it.
Enter judgment on notice.
It is so ordered.