The opinion of the court was delivered by: Judge Thomas M. Rose
ENTRY AND ORDER FINDING BEAVEN'S COMPLAINT FOR MANDAMUS MOOT; OVERRULING BEAVEN'S MOTION FOR ATTORNEY'S FEES (Doc. #9) AND TERMINATING THE CASE
Now before the Court is Oliver Humphrey Beaven's ("Beaven's") Motion for Attorney's Fees brought pursuant to the Equal Access To Justice Act ("EAJA"), 28 U.S.C. §2412. (Doc. #9.) Defendant Mark B. Hansen ("Hansen"), District Director for the United States Citizenship and Immigration Services ("USCIS"), has responded (doc. #11) and Beaven has replied (doc. #12). Beaven's Motion is, therefore, ripe for decision. A background will first be set forth followed by a discussion of Beaven's Motion.
The Parties have presented minimal evidence to form the basis for a factual background and have not requested an oral hearing. However, the background will be based upon those facts from the Parties' Briefs which appear not to be in dispute.
Beaven entered the United States as a child in 1967. At that time, the USCIS*fn1 created an alien file for him which was archived. On October 4, 2004, Beaven filed his application for naturalization at Lincoln, Nebraska, which commenced the naturalization process.
The naturalization process consists of a number of procedures which must be followed and completed in order for the USCIS to consider an application for citizenship. Among these procedures are fingerprint, background and name checks which are performed by the Federal Bureau of Investigation (the "FBI"), an interview by the USCIS and a full examination of the immigration file of the applicant, including the alien file.
On October 26, 2004, the first request was made for retrieval of Beaven's alien file. Between this date and March 15, 2005, two additional retrieval requests for Beaven's alien file were made. However, the original alien file was never found and a temporary alien file was created in its absence.
On April 4, 2005, the interview that is part of the naturalization process was conducted. However, the application was not approved because the original alien file was not available*fn2 and the name check results had not yet been posted.
The name check results were posted on July 1, 2005. At that point, all required procedures were complete except for review of the alien file.
Beaven's Counsel spoke with the Cincinnati USCIS office*fn3 on September 21, 2005, and again on October 5, 2005, regarding the status of Beaven's application. On October 18, 2005, Beaven's Counsel submitted a formal, written inquiry and followed that on November 21, 2005, with another phone inquiry.
A few days later on December 7, 2005, Beaven filed the Mandamus action that is now before the Court. In the Mandamus action, Beaven seeks to compel Hansen to approve his application for United States citizenship.
Beaven's Complaint for Mandamus was served on Hansen on December 12, 2005. On December 13, 2005, Beaven's application for citizenship was approved. On December 15, 2005, Beaven became a naturalized U.S. citizen.
Beaven indicates that his Complaint was served on Hansen on December 12, 2005. Proof of this service was not filed by Beaven until March 9, 2005, after being reminded by the Court. Neither the United ...