Avdeeva v. Tucker

138 F.4th 641

• Court: Court of Appeals for the First Circuit
• Decided: May 28, 2025
• Docket: 22-1616
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1616

DIANA AVDEEVA,

Plaintiff, Appellant,

v.

SHANITA TUCKER, Field Office Director, U.S. Citizenship and Immigration Services; PETER SIMONDS, Immigration Services Officer, U.S. Citizenship and Immigration Services; DENIS C. RIORDAN, District Director, U.S. Citizenship and Immigration Services; KIKA SCOTT, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services,*

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

Gregory Romanovsky, Esq., with whom Romanovsky Law Offices was on brief, for appellant.

Huy M. Le, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, William C. Peachey,

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Senior Official Performing the Duties of the Director Kika Scott is substituted for former Director Ur Mendoza Jaddou. Director, District Court Section, Office of Immigration Litigation, and T. Monique Peoples, Senior Litigation Counsel, were on brief, for appellees.

May 28, 2025

- 2 - HOWARD, Circuit Judge. Diana Avdeeva appeals from the

district court's denial of her motion for attorney's fees.

Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C.

§ 2412, Avdeeva sought to recover the fees that she incurred in

bringing a lawsuit -- which was ultimately settled -- against the

United States Citizenship and Immigration Services ("USCIS") for

its failure to timely adjudicate her application for

naturalization within the statutorily mandated period.1 Concluding

that Avdeeva is not a "prevailing party" and is thus not entitled

to fees under EAJA, we affirm.

I.

In 2013, Avdeeva, a citizen of Russia, married Grigoriy

Rogach, a United States citizen. Shortly thereafter, Avdeeva filed

an application for lawful permanent-resident status with USCIS.

USCIS approved Avdeeva's application but granted her

permanent-resident status on a conditional, two-year basis because

she had been married to Rogach for less than two years. See 8

U.S.C. § 1186a(a)(1).

Avdeeva and Rogach subsequently filed a petition (the

"I-751 petition") to have the conditional nature of her residence

1Avdeeva initiated suit against various USCIS personnel in their official capacities: Shanita Tucker, Field Office Director; Peter Simonds, Immigration Services Officer; Denis C. Riordan, District Director; and Ur Mendoza Jaddou, Director. Taking the parties' lead, we refer to the defendants-appellees collectively as "USCIS" for simplicity's sake.

- 3 - in the United States removed. USCIS neither scheduled an interview

on the I-751 petition nor waived the interview requirement within

ninety days of Avdeeva's filing of the petition as required. See

8 C.F.R. § 216.4(b)(1) ("The director must either waive the

requirement for an interview and adjudicate the petition or arrange

for an interview within 90 days of the date on which the petition

was properly filed."). USCIS did, however, request additional

evidence from Avdeeva in connection with its review.

Avdeeva and Rogach divorced in 2018. Avdeeva notified

USCIS of the divorce and requested that the I-751 petition (on

which USCIS had still not acted) be converted to a waiver petition.

See 8 C.F.R. § 216.5(a)(1)(ii) (providing for waiver where

applicant can establish that "[t]he marriage upon which his or her

status was based was entered into in good faith by the conditional

resident alien, but the marriage was terminated other than by

death"). In support of that request, she submitted materials

demonstrating that she and Rogach had been in a bona fide marital

relationship. In 2019, still without any action from USCIS on her

I-751 petition, Avdeeva applied for naturalization.

USCIS in turn scheduled a supposed naturalization

interview, but at the interview, the immigration officer instead

focused on Avdeeva's pending I-751 petition. USCIS subsequently

denied that petition on the basis that Avdeeva had failed to

establish that she entered into her marriage in good faith;

- 4 - terminated her permanent-resident status; and placed her into

removal proceedings. USCIS then closed Avdeeva's naturalization

case on the ground that it could not adjudicate her naturalization

application because she was subject to removal proceedings.

Avdeeva brought two actions against USCIS in response:

the first suit (the "APA suit") challenged USCIS's actions as

having violated various immigration regulations, the

Administrative Procedure Act, and her right to due process; the

second suit (which forms the basis of this appeal), meanwhile,

alleged that USCIS failed to adjudicate her naturalization

application within the statutorily-mandated period and asked the

district court to take jurisdiction over that application pursuant

to 8 U.S.C. § 1447(b). The government moved to dismiss both

actions.

While the government's motions to dismiss were pending,

the parties entered into a settlement agreement and filed a joint

motion to remand the matters to USCIS pursuant to that agreement.

The parties' settlement agreement obligated USCIS, within sixty

days of remand, to terminate Avdeeva's removal proceedings,

approve her I-751 petition, and conduct a new naturalization

interview. USCIS further agreed that, if Avdeeva met all

requirements for naturalization, her naturalization oath would be

administered within that same sixty-day period. For her part,

Avdeeva agreed to "voluntarily dismiss all pending claims and

- 5 - withdraw her claim for damages under the Federal Tort Claims Act"

following USCIS's performance under the agreement.

Pursuant to the agreement, the district court remanded

this case to USCIS and stayed the APA action. Avdeeva was

naturalized in August 2020. She then voluntarily dismissed the

APA suit and received a judgment of dismissal from the district

court "in accordance with the parties' settlement agreement" in

the instant action. Avdeeva in turn moved for attorney's fees in

the instant action pursuant to EAJA. The district court denied

that motion on the basis that special circumstances -- namely, the

terms of the parties' settlement agreement -- would make an award

of attorney's fees to Avdeeva unjust. The district court also

suggested, but did not definitively conclude, that Avdeeva was not

a "prevailing party" under EAJA. Avdeeva appeals from that denial.

II.

Avdeeva challenges the district court's findings that:

(1) she may not be entitled to prevailing-party status, and

(2) even if she were a prevailing party, special circumstances

would make an award of attorney's fees unjust. Because we conclude

that Avdeeva is not a "prevailing party" within the meaning of

EAJA, we agree with the district court that she is not entitled to

attorney's fees and accordingly affirm the dismissal below.2

2 Although the district court did not base its dismissal on its finding that Avdeeva was likely not a prevailing party, "[w]e

- 6 - EAJA dictates that, in a civil action involving the

United States as a party, "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).

As it is used in EAJA, the term "prevailing party" is a

"legal term of art" that refers to "one who has been awarded some

relief by the court." Buckhannon Bd. & Care Home, Inc. v. W.V.

Dep't of Health & Hum. Res., 532 U.S. 598, 603 (2001). "We review

a determination of 'prevailing party' status de novo." Hutchinson

ex rel. Julien v. Patrick, 636 F.3d 1, 8 (1st Cir. 2011). "Where,

as in this case, the application of [a fee-shifting] statute cuts

through the government's traditional sovereign immunity, it 'must

be construed strictly in favor of the government.'" Id. (quoting

Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009) (en banc)).

To qualify as a prevailing party for the purposes of

EAJA, a party must show: (1) a "material alteration of the legal

relationship of the parties" and (2) a "judicial imprimatur on the

change." Aronov, 562 F.3d at 89 (quoting Buckhannon, 532 U.S. at

are at liberty to affirm a district court's judgment on any ground made manifest by the record." United States v. George, 886 F.3d 31, 39 (1st Cir. 2018).

- 7 - 604-05).3 Avdeeva and USCIS agree that there was a material

alteration of their legal relationship but disagree as to whether

there was a "judicial imprimatur" on that change. Our analysis

thus focuses on that second prong of the test.

The judicial-imprimatur requirement is satisfied where

a plaintiff "receive[s] a judgment on the merits" or, as

potentially applicable here, where a plaintiff "obtain[s] a

court-ordered consent decree." Buckhannon, 532 U.S. at 605. We

have clarified "that the formal label of 'consent decree' need not

be attached" to a court order for us to find judicial imprimatur

and that, instead, we must determine "whether the order contains

the sort of judicial involvement and actions inherent in a

'court-ordered consent decree.'" Aronov, 562 F.3d at 90. The

Supreme Court has "emphasized three related factors" relevant to

this determination: (1) "the change in legal relationship must be

'court-ordered'"; (2) "there must be judicial approval of the

relief vis-à-vis the merits of the case"; and (3) "there must be

judicial oversight and ability to enforce the obligations imposed

on the parties." Id. (discussing Buckhannon, 532 U.S. at 604 &

3"Although the issue in Buckhannon was the fee-shifting provisions of the Fair Housing Amendments Act of 1988 and the American With Disabilities Act of 1990, . . . the Supreme Court's reasoning in 'Buckhannon is presumed to apply generally to all fee-shifting statutes that use the "prevailing party" terminology . . . .'" Smith v. Fitchburg Pub. Schs., 401 F.3d 16, 22 n.8 (1st Cir. 2005) (citations omitted) (quoting Doe v. Bos. Pub. Schs., 358 F.3d 20, 25 (1st Cir. 2004)).

- 8 - n.7). Avdeeva fails to demonstrate that any of these three factors

are present.

First, Avdeeva cannot demonstrate that the change in the

legal relationship between her and USCIS was achieved via court

order.

When determining whether a change in the parties' legal

relationship was "court-ordered," we distinguish between "a

situation in which the court order triggers the change in the

relationship between the parties" and "one in which 'the court

merely recognizes what the government has voluntarily agreed to do

and only requires the government to follow through.'" Hutchinson,

636 F.3d at 9 (cleaned up) (emphasis added) (quoting Aronov, 562

F.3d at 93). Where a case falls into the latter category, the

change in legal relationship cannot fairly be characterized as

"court-ordered." See Buckhannon, 532 U.S. at 605-06 ("A

defendant's voluntary change in conduct, although perhaps

accomplishing what the plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on the change. . . . [T]he

term 'prevailing party' [does not] authorize[] federal courts to

award attorney's fees to a plaintiff who, by simply filing a

nonfrivolous but nonetheless potentially meritless lawsuit (it

will never be determined), has reached the 'sought-after

destination' without obtaining any judicial relief."); see also

- 9 - Smith v. Fitchburg Pub. Schs., 401 F.3d 16, 22-23 (1st Cir. 2005)

("The Court expressly rejected the '"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.'" (quoting Buckhannon, 532 U.S. at

601)).

The change in the legal relationship between Avdeeva and

the government was achieved through the parties' settlement and,

ultimately, USCIS's grant of Avdeeva's application for

naturalization, not the district court's remand order.4 Instead,

the district court's order simply stated that it was remanding the

matter pursuant to the parties' settlement, and the settlement

agreement placed a conditional obligation on USCIS to grant

Avdeeva's naturalization application "[i]f [she] me[t] all

requirements for naturalization." The change in the legal

relationship was thus not "court-ordered." Indeed, the Fourth

Circuit explained as much in Ge v. USCIS, 20 F.4th 147, 157 (4th

Cir. 2021), where it held that an order of remand did not confer

4 Theparties' settlement agreement did place an unconditional obligation on USCIS to grant Avdeeva's I-751 petition. However, Avdeeva voluntarily dismissed, and does not seek attorney's fees in, her lawsuit concerning USCIS's adjudication of that petition; instead, Avdeeva seeks attorney's fees only for her challenge to USCIS's handling of her application for naturalization, and thus it is the legal change between the parties with respect to that application that is relevant here.

- 10 - prevailing-party status in a § 1447(b) action (albeit one that did

not involve a settlement between the parties):

Upon commencing this action, the legal relationship between [the plaintiff] and USCIS was that [the plaintiff] was an applicant for naturalization; USCIS was the agency that could grant or deny that application; and no determination on the merits of the application had been made. . . . After the district court entered its remand order, [the plaintiff] was still the applicant; USCIS was still the agency that could grant or deny the application; and no determination had been made on the merits of the application. . . . Simply put, the legal relationship with respect to the underlying dispute had not changed as a result of the remand order, and therefore the order did not make [the plaintiff] the prevailing party.

Avdeeva argues that, regardless of the parties'

settlement and the effect of USCIS's actions, the change was

necessarily "court-ordered" because the filing of her § 1447(b)

action deprived USCIS of jurisdiction to adjudicate her

application for citizenship until there was district court action

in the form of a remand. We rejected this exact argument in Aronov

and do the same here. See 562 F.3d at 93-94 ("We need not resolve

the question of whether the agency could have acted without the

remand, as it does not matter to our resolution of the judicial

imprimatur issue. The order remanding to the agency is alone not

enough to establish the needed imprimatur." (footnote omitted)).

- 11 - ii.

Second, there was not "judicial approval of the relief

vis-à-vis the merits of [Avdeeva's] case." Id. at 90.

The district court's remand order expressly stated that

the parties' settlement agreement, not the district court's

resolution of the merits of Avdeeva's § 1447(b) claim, provided

the basis for the remand. See Order of Remand 1, ECF No. 29 ("This

matter is remanded to [USCIS] in accordance with the parties'

settlement agreement . . . ." (emphasis added)). Avdeeva argues

that the district court nonetheless necessarily considered the

merits of its claim given that "this case involved two fully

briefed motions to dismiss, as well as a scheduling conference

during which both sides presented their legal arguments." However,

the fact that the merits were argued before the court does not

compel the conclusion that the court's relief was based on its

consideration of those merits. Indeed, the court explicitly noted

that it did not do so here. See Mem. & Order 9, ECF No. 57 ("Here,

although the parties fully briefed the government's Motion to

Dismiss [Doc. No. 14], as in Aronov, prior to dismissal, '[t]he

court made no evaluation at all of the merits of the

controversy -- indeed the court was never asked to do so; it was

only asked to dismiss the case.'" (quoting 562 F.3d at 92

(alteration in original))).

- 12 - iii.

Finally, both "judicial oversight and [the] ability to

enforce the obligations imposed on the parties" are absent here.

Aronov, 562 F.3d at 90.

A consent decree "'includes an injunction, or some other

form of specific relief,' which may ultimately be enforceable by

contempt," whereas a private settlement, which may be enforceable

through an action for breach of contract, "does not require the

same level of judicial oversight" and "is insufficient to meet the

standards for a consent decree." Id. at 91 (quoting Charles A.

Wright & Mary Kay Kane, Law of Federal Courts § 98, at 702 n.2

(6th ed. 2002)). Here, the district court's order merely noted

that the matter was "remanded to [USCIS] in accordance with the

parties' settlement agreement." Critically, the order "did not

contain provisions for future enforcement typical of consent

decrees" and "did not resolve a dispute between the parties[;] it

merely returned jurisdiction to the agency to allow the parties to

carry out their agreement." Id. at 92.

Avdeeva, however, argues that the district court did

retain jurisdiction to enforce the settlement agreement because

the remand order incorporated its terms. This argument is

unconvincing.

"[A] federal court does not have inherent jurisdiction

to enforce a settlement merely because it presided over the law

- 13 - suit that led to the settlement." F.A.C., Inc. v. Cooperativa de

Seguros de Vida de P.R., 449 F.3d 185, 189 (1st Cir. 2006) (citing

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80

(1994)). A federal court can exercise ancillary jurisdiction to

enforce that agreement only where the terms of the agreement are

incorporated into the order of dismissal. Id. at 189-90.

There was no such incorporation here, however, as the

district court's order merely noted the existence of the parties'

agreement. See Kokkonen, 511 U.S. at 381 ("The judge's mere

awareness and approval of the terms of the settlement agreement do

not suffice to make them part of [her] order."). We have explained

that, even where a district court's order explicitly notes that it

is made "pursuant to" the parties' settlement agreement, this "is

not enough to 'incorporate the terms'" of that agreement into the

order. F.A.C., Inc., 449 F.3d at 190; see also Aronov, 562 F.3d

at 92 n.13 ("[I]t is . . . firmly the law that there must be a

clear basis within the [district court's order] for both the

court's continuing jurisdiction and its power to enforce an

agreement between the parties. . . . [The] court's order must

expressly retain jurisdiction or expressly incorporate the terms

of a settlement agreement . . . ." (emphasis added)); Smyth ex

rel. Smyth v. Rivero, 282 F.3d 268, 283 (4th Cir. 2002) ("Where a

court merely recognizes the fact of the parties' agreement and

dismisses the case because there is no longer a dispute before it,

- 14 - the terms of the agreement are not made part of the order and

consequently will not serve as a basis of jurisdiction.").

The only other support that Avdeeva advances in favor of

this argument is the district court's statement, made in its

subsequent order on the motion for attorney's fees, that it had

"retain[ed] jurisdiction over the matter." See Mem. & Order 10,

ECF No. 57. However, in Aronov we explained that we do not credit

a district court's later characterization of its remand order as

having retained jurisdiction where that order unambiguously

"lacked any provision mandating the USCIS to act or expressly

retaining jurisdiction to force the government to act." 562 F.3d

at 92 n.13. The district court's comment thus does not bear the

weight that Avdeeva ascribes to it.

III.

For the reasons stated, Avdeeva cannot establish that

she is a "prevailing party" under EAJA, and the district court's

dismissal of her petition for attorney's fees is accordingly

affirmed.5

5Because we conclude that Avdeeva is not a "prevailing party" under EAJA, we need not address whether the parties' settlement agreement would make an award of attorney's fees unjust.

- 15 -