Case: 16-16307   Date Filed: 07/07/2017   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 16-16307
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 8:13-cv-00068-JSM-AEP



SUNIL KUMAR KURAPATI,
BHARATHI MALLIDI,

                                                        Plaintiffs-Appellants,

versus

U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY,
U.S. ATTORNEY GENERAL,
DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION SERVICES,
CHIEF, ADMINISTRATIVE APPEALS OFFICE, U.S. CITIZENSHIP AND
IMMIGRATION SERVICES


                                                       Defendants-Appellees.
                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                             (July 7, 2017)
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Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Sunil Kurapati and his wife, Bharathi Mallidi, appeal the district court’s

denial of their motion for attorney’s fees. Kurapati and Mallidi filed the motion

after the district court granted them summary judgment on their claim that the

United States failed to provide them proper notice before revoking their immigrant

visa petitions. In the motion, Kurapati and Mallidi argued that they are entitled to

attorney’s fees under the Equal Access to Justice Act because the Government’s

initial position in defending against the notice claim—that they lacked standing—

was not substantially justified. The district court, however, rejected that argument.

According to the court, the Government had a reasonable basis for its position

since the law governing Kurapati and Mallidi’s standing was unsettled. On appeal,

Kurapati and Mallidi contest the court’s substantially-justified determination,

asserting that the Government’s contention that they lacked standing was

foreclosed by various precedents from outside this circuit and the “Portability

Provision” of the American Competitiveness in the Twenty-First Century Act. 1

      Under the Equal Access to Justice Act, a district “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 . . . .”


      1
          The provision was codified at 8 U.S.C. § 1154(j).
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28 U.S.C. § 2412(d)(1)(A). A position of the United States is substantially

justified if it is “justified to a degree that could satisfy a reasonable person.”

Pierce v. Underwood, 

, 565, 

, 2550 (1988) (internal

quotation marks omitted). The “position can be justified even though it is not

correct”; “it can be substantially . . . justified if a reasonable person could think it

correct.” 

n.2.

      Reviewing the district court’s substantially-justified determination for abuse

of discretion, see 

108 S. Ct. at 2546–47, we must affirm. To

establish abuse of discretion, Kurapati and Mallidi must show that “the district

court made a clear error of judgment.” See Mann v. Taser Int’l, Inc., 

, 1302 (11th Cir. 2009). And they have failed to do so.

      The Government’s position on standing ultimately proved to be incorrect,

but when the Government embraced the position, the position was reasonable. See

n.2. The district court initially

agreed with the Government’s position and dismissed Kurapati and Mallidi’s

notice claim. Our court then reversed the dismissal, finding that Kurapati and

Mallidi had standing. Kurapati v. U.S. Bureau of Citizenship & Immigration

Servs., 

, 1259–60 (11th Cir. 2014) (per curiam). However, our

opinion was the first opinion in this circuit to address the standing issue presented

by Kurapati and Mallidi’s notice claim. See 

that opinion, the issue was


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sufficiently unsettled to justify the Government’s position.2 Neither the Portability

Provision nor the decisions from outside this circuit upon which Kurapati and

Mallidi rely rendered the position unreasonable. Indeed, the district court’s initial

agreement with the position cuts against such a finding. See 

n.2.

       AFFIRMED.




       2
         Kurapati and Mallidi argue that, after we reversed the district court’s dismissal, the
Government acted unreasonably because it continued to contest standing. However, the record
belies Kurapati and Mallidi’s claim that the Government continued to contest standing.
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