Aronov v. Chertoff

United States Court of Appeals
For the First Circuit
No. 07-1588
ALEXANDRE ARONOV,
Plaintiff, Appellee,
v.
JANET NAPOLITANO,* ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Boudin, Lipez, and Howard, Circuit Judges.
Thomas H. Dupree, Jr., Principal Deputy Assistant Attorney
General, Civil Division, with whom Gregory G. Katsas, Assistant
Attorney General, Civil Division, and Donald E. Keener, Deputy
Director, were on brief for appellants.
Gregory Romanovsky with whom Law Offices of Gregory Romanovsky
was on brief for appellee.
Anthony Drago, Jr., Anthony Drago, Jr., P.C., Marisa A.
DeFranco, Devine Millimet & Branch, Howard Silverman, Ross,
Silverman & Levy LLP, Jeanette Kain, Ilana Etkin Greenstein, Harvey
Kaplan, Kaplan, O'Sullivan & Friedman, Paul Glickman, Ellen
Sullivan, Glickman Turley, LLP, Vard Johnson, William Graves, Kerry
Doyle, and Graves & Doyle on brief for American Immigration Lawyers
Association, amicus curiae.
*
Pursuant to Fed. R. App. P. 43(c)(2), Janet Napolitano,
Secretary of the U.S. Department of Homeland Security, has been
substituted for former Secretary Michael Chertoff.
OPINION EN BANC
April 13, 2009
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LYNCH, Chief Judge. This case concerns the standards for
an award of attorneys' fees against an agency of the United States
under the Equal Access to Justice Act ("EAJA"), 28 U.S.C.
§ 2412(d)(1)(A). The Act requires such an award for a successful
litigant who meets the particularized standards for being a
"prevailing party," when the government's position, either before
or after suit was filed, was not substantially justified, and
provided that the award of fees would not otherwise be unjust.
Id.; see also generally Smith v. Fitchburg Pub. Sch., 401 F.3d 16(1st Cir. 2005).
Alexandre Aronov, an applicant for citizenship, sued the
U.S. Citizenship and Immigration Service ("USCIS"), which
immediately entered into a voluntary settlement and never filed a
responsive pleading. Instead the parties filed a joint motion to
remand. The district court issued a one-line order granting the
joint motion to remand and terminating the case. No hearing was
ever held by the district court. The order remanded to the USCIS,
which swore in Aronov as a citizen on November 8, 2006, as it had
represented in the joint motion that it would do.
Aronov, newly a citizen, then filed an application for
fees and costs under the EAJA, which the district court granted in
the sum of $4,270.94, over the opposition of the USCIS. The USCIS
appealed. The award was originally upheld by a panel, over a
dissent.
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The USCIS sought en banc review, arguing that the panel
decision, if left standing, would have dangerous systemic
consequences far beyond this case. The precedent would "create[]
an enormous incentive for individuals frustrated with delays in the
naturalization process to file mandamus lawsuits in this Circuit;
[and would] create[] an enormous disincentive for the agency to
settle these cases by agreeing to grant naturalization." It argued
the panel decision was contrary to law and "undermine[d] the
uniform judgment of both Congress and the agency that background
checks are critical to insuring public safety and national
security." While the sum awarded in this case might be small, it
said, the potential economic consequences were quite large. This
court granted en banc review.1
We now reverse the award of fees and order dismissal of
Aronov's EAJA application with prejudice on the two separate and
independent grounds that he was not a prevailing party and that,
whether or not he met the prevailing party requirement, USCIS's
position in requiring an FBI name check was substantially
justified. The key question is not whether a court ultimately
agrees with the agency's reading of its legal obligations but
whether the agency's position was substantially justified.
1
We acknowledge with appreciation the assistance provided
by the amicus American Immigration Lawyers Association.
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I.
Aronov's suit, filed on August 28, 2006, was brought
under 8 U.S.C. § 1447(b), which allows an applicant for citizenship
to seek relief in federal district court if the USCIS does not act
on the application within 120 days of his or her citizenship
interview examination. Section 1447(b) provides in full:
If there is a failure to make a
determination under section 1446 of this title
before the end of the 120-day period after the
date on which the examination is conducted
under such section, the applicant may apply to
the United States district court for the
district in which the applicant resides for a
hearing on the matter. Such court has
jurisdiction over the matter and may either
determine the matter or remand the matter,
with appropriate instructions, to the [USCIS]
to determine the matter.
8 U.S.C. § 1447(b).
There are no disputed facts. Aronov, a native of Russia
and permanent U.S. resident since 2001, submitted an application
for citizenship to the USCIS on May 22, 2004. On February 14,
2005, a USCIS officer examined Aronov before the agency received a
full FBI background check for him, contrary to USCIS regulations.
The officer informed him that his application could not be approved
until additional security checks were completed.
The USCIS erred by examining Aronov prematurely. By
regulation, the agency may not schedule an interview, which starts
the 120-day clock for filing suit under § 1447(b), until a full FBI
background check for the applicant is complete. See 8 C.F.R.
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§ 335.2(b) (the USCIS will schedule interviews "only after [it] has
received a definitive response from the [FBI] that a full criminal
background check of an applicant has been completed"). Mistakes
happen. Nevertheless, the error was harmless2 and accrued to
Aronov’s benefit. The early interview meant he was immediately
eligible for citizenship upon successful completion of the FBI
background check and, under the literal terms of § 1447(b), was
able to bring suit if the agency did not act on his application
within 120 days.
On March 23, 2006, the USCIS sent Aronov written notice
that additional review of his case was necessary and asked Aronov
to contact the agency if he did not receive a notice of action
within six months.
Instead, Aronov sued. The USCIS did not file a
responsive pleading. On October 6, 2006, Aronov and the
government, having settled the case, filed a Joint Motion for
Remand, stating that "USCIS ha[d] completed its review of
plaintiff's application for naturalization and, if jurisdiction
[were] returned to the agency, [USCIS] would grant the application
and schedule plaintiff's oath ceremony for no later than November
8, 2006" and requesting that the court "remand the matter to USCIS
2
See generally Nat'l Ass'n of Home Builders v. Defenders
of Wildlife, 127 S. Ct. 2518, 2530 (2007) ("In administrative law
. . . there is a harmless error rule." (quoting PDK Labs., Inc. v.
U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004))).
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so that it [could] grant plaintiff's application for
naturalization, and schedule plaintiff's oath ceremony for no later
than November 8, 2006." Except on paper, the parties did not even
appear before the court, there were no hearings and no
representations were made about the parties' negotiations or the
history of the matter. On October 12, 2006, the court entered an
electronic order,3 which stated in full:
Electronic ORDER granting [Docket Number] 3
Joint Motion to Remand to US Citizenship and
Immigration Services.
That remand order forms the basis for the EAJA award at issue. By
order dated January 30, 2007, the district court awarded fees on
the basis that its order was a remand to the agency to do something
and so met the judicial imprimatur requirement. The government, it
found, unjustifiably delayed the petition, forced Aronov to file
his action, and allowed for expedition only after mandamus was
filed.
II.
The EAJA provides in relevant part:
[A] court shall award to a prevailing party
other than the United States fees and other
expenses . . . incurred by that party in any
civil action (other than cases sounding in
tort), including proceedings for judicial
review of agency action, brought by or against
3
The parties agree the order was a final judgment; EAJA
applications may not be filed until there is a final judgment. See
28 U.S.C. § 2412(d)(1)(B), (d)(1)(D)(2)(G); see also Melkonyan v.
Sullivan, 501 U.S. 89, 97 (1991).
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the United States in any court having
jurisdiction of that action, 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).
The purpose of the Act is "to ensure that certain
individuals . . . will not be deterred from seeking review of, or
defending against, unjustified governmental action because of the
expense involved." Scarborough v. Principi, 541 U.S. 401, 407
(2004) (quoting H.R. Rep. No. 99-120(I), at 4 (1985), reprinted in
1985 U.S.C.C.A.N. 132, 132-33). The EAJA "reduces the disparity in
resources between individuals . . . and the federal government."
H.R. Rep. No. 99-120(I), at 4.
Two issues are raised: (1) whether Aronov met the
"judicial imprimatur" requirement of the "prevailing party" test;
and (2) whether the USCIS has met its burden of showing that it did
not act unreasonably.
We review a district court’s determinations under the
EAJA for abuse of discretion. Pierce v. Underwood, 487 U.S. 552,
558-59 (1988); Schock v. United States, 254 F.3d 1, 4 (1st Cir.
2001). An error of law is an abuse of discretion. Rosario-Urdaz
v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003); see also
Atl. Fish Spotters Ass'n v. Daley, 205 F.3d 488, 491 n.2 (1st Cir.
2000). Whether a party is a prevailing party is itself a legal
determination subject to de novo review. Rice Servs., Ltd. v.
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United States, 405 F.3d 1017, 1021 (Fed. Cir. 2005); Smyth ex rel.
Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). The district
court's award rests on errors of law.
The EAJA is a departure from the traditional "American
rule" that parties must ordinarily bear their own attorneys' fees.
See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240,
247 (1975). Importantly, the EAJA is not simply a fee shifting
statute. The EAJA is also a waiver by the government of its
sovereign immunity and so must be construed strictly in favor of
the government. Ardestani v. INS, 502 U.S. 129, 137 (1991).
Whatever flexibility there may be in interpreting fee shifting
statutes involving awards against parties other than the United
States, such flexibility does not exist as to EAJA applications.
See Lehman v. Nakshian, 453 U.S. 156, 161 (1981) ("[L]imitations
and conditions upon which the Government consents to be sued must
be strictly observed and exceptions thereto are not to be implied."
(quoting Soriano v. United States, 352 U.S. 270, 276 (1957))).
A. The Judicial Imprimatur Standard Under the Prevailing
Party Requirement of the EAJA
We hold as a matter of law that Aronov is not a
prevailing party under the order entered by the district court.
The Supreme Court set the general standards for defining
the term "prevailing party" in federal attorneys' fees shifting
statutes in Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598 (2001), a case
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concerned with fee statutes other than the EAJA.4 Buckhannon sets
the minimum standards for prevailing party status under the EAJA.
"[T]he Supreme Court's reasoning in 'Buckhannon is presumed to
apply generally to all fee-shifting statutes that use the
prevailing party terminology.'" Smith, 401 F.3d at 22 n.8 (quoting
Doe v. Boston Pub. Sch., 358 F.3d 20, 25 (1st Cir. 2004)) (internal
quotation marks omitted); accord Ma v. Chertoff, 547 F.3d 342, 344
(2d Cir. 2008) (per curiam) (collecting cases).
"[T]he term 'prevailing party' [is] a legal term of art."
Buckhannon, 532 U.S. at 603. To be a prevailing party, a party
must show both a "material alteration of the legal relationship of
the parties," id. at 604 (quoting Tex. State Teachers Ass'n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)), and a
"judicial imprimatur on the change," id. at 605.
Both terms are illuminated by the potential meanings
Buckhannon rejected: the Supreme Court held that mere success in
accomplishing a party's objectives is insufficient to be a
prevailing party for a fee award. Buckhannon, 532 U.S. at 606.
The Court rejected the "catalyst" theory which had been accepted by
many circuits, including this one.5 The Court noted that use of
4
Buckhannon involved provisions of the Federal Housing
Amendments Act of 1988, 42 U.S.C. § 3613(c)(2) and the Americans
with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12205.
5
Buckhannon thus overruled this circuit's prior acceptance
of the catalyst theory in Guglietti v. Secretary of Health & Human
Services, 900 F.2d 397 (1st Cir. 1990) (applying EAJA), followed in
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the catalyst theory would have the adverse effect of discouraging
the government from voluntarily settling cases (pre-suit or post-
suit). See id. at 608 (noting the "disincentive that the 'catalyst
theory' may have upon a defendant's decision to voluntarily change
its conduct"). The Court stated that its plain language approach
served the purpose of providing a clear formula allowing for ready
administrability and avoiding the result of a second major
litigation over attorneys' fees. See id. at 609-11.
Buckhannon explicitly identified two and only two
situations which meet the judicial imprimatur requirement: where
plaintiff has "received a judgment on the merits," which does not
apply here, or "obtained a court-ordered consent decree." Id. at
605. The Court was clear that "settlement agreements enforced
through a consent decree" may be the basis for fee awards and the
resulting change in the legal relationship between the parties must
be "court-ordered." Id. at 604 (emphasis added). The change in
the legal relationship must be a "judicially sanctioned change."
Id. at 605.6 Notably, Buckhannon, which affirmed the judgment of
the Fourth Circuit in denying fees, did not adopt that portion of
Paris v. United States Department of Housing & Urban Development,
988 F.2d 236 (1st Cir. 1993) (same).
6
The Court said these requirements were imposed by the
plain language of the statute and while there was no need to resort
to legislative history, that history was consistent with these
requirements. Buckhannon, 532 U.S. at 607-08. We reject Aronov's
arguments that the legislative history supports a broader approach.
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the Fourth Circuit rule which permitted an award of fees for a
"settlement giving some of the legal relief sought" in addition to
fees for an "enforceable judgment [or] consent decree." Id. at
602.
The order here was plainly not a judgment on the merits,
nor was it labeled a "court-ordered consent decree." That,
however, does not end the matter. We agree with other circuits
that the formal label of "consent decree" need not be attached;7 it
is the reality, not the nomenclature which is at issue. Sometimes
the question has been phrased in terms of whether a given court
order is the "functional equivalent of a consent decree"; the
better articulation may be to ask whether the order contains the
sort of judicial involvement and actions inherent in a "court-
ordered consent decree." The district court did not allow EAJA
fees on the basis that the order it entered was the equivalent of
a consent decree. Rather, it said in its award order that it
entered the award on the ground that it had entered an order
compelling the agency to take action, which it thought was
7
See, e.g., Davy v. CIA, 456 F.3d 162, 166 (D.C. Cir.
2006) (holding, under the attorneys' fee provision of the Freedom
of Information Act, that an award was appropriate even though the
court's order was "styled 'order' as opposed to 'consent decree'");
see also Rice Servs., 405 F.3d at 1026-27 (EAJA); T.D. v. LaGrange
Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003) (Individuals
with Disabilities Education Act); Roberson v. Giuliani, 346 F.3d
75, 81 (2d Cir. 2003) (42 U.S.C. § 1988); Truesdell v. Phila. Hous.
Auth., 290 F.3d 159, 165 (3d Cir. 2002) (same); Am. Disability
Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002)
(ADA); Smyth, 282 F.3d at 276 (§ 1988).
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sufficient to support an award. Indeed, Aronov never argued to the
district court that this situation was so like a consent decree as
to constitute the requisite judicial imprimatur. Nonetheless, the
consent decree theory is the primary grounds now asserted, and the
parties have addressed the issue to the en banc court. We bypass
his waiver and address the argument.8
The Supreme Court has described what it meant by a
"court-ordered consent decree." It distinguished such consent
decrees from "private settlements" (as to which fees may not be
awarded), saying "[p]rivate settlements do not entail the judicial
approval and oversight involved in consent decrees." Id. at 604
n.7. Buckhannon contrasted final judgments on the merits and
court-ordered consent decrees with situations which failed to meet
the judicial imprimatur test: for example, securing the reversal of
a directed verdict, acquiring a judicial pronouncement that a
defendant has violated the Constitution unaccompanied by "judicial
relief," or obtaining a non-judicial "alteration of actual
circumstances." Id. at 605-06.
The Court emphasized three related factors. The first
was that the change in legal relationship must be "court-ordered."
See id. at 604. Second, there must be judicial approval of the
relief vis-à-vis the merits of the case. Buckhannon cited Kokkonen
8
There is no basis, as a result, to consider deference to
non-existing "findings" of the district court, as to whether this
was the equivalent of a consent decree.
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v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381
(1994), which held a "judge's mere awareness and approval of the
terms of the settlement agreement do not suffice to make them part
of his order." Third, there must be judicial oversight and ability
to enforce the obligations imposed on the parties. See Buckhannon,
532 U.S. at 604 n.7 (noting that judicial oversight is inherent in
consent decrees but not in private settlements).
These factors from Buckhannon are themselves, not
surprisingly, contained in the law of consent decrees. A consent
decree "embodies an agreement of the parties," that they "desire
and expect will be reflected in, and be enforceable as, a judicial
decree." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)
(quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378
(1992)); see also Ricci v. Patrick, 544 F.3d 8, 17 (1st Cir. 2008),
cert. denied, ___ S.Ct. ___, 2009 WL 229763 (Apr. 6, 2009). As the
Fourth Circuit noted in Smyth:
A consent decree, because it is entered as an
order of the court, receives court approval
and is subject to the oversight attendant to
the court's authority to enforce its orders,
characteristics not typical of settlement
agreements. [Buckhannon]'s admonition that
consent decrees may satisfy the prevailing
party standard while private settlements ought
not be so construed is thus consistent with
the general purposes and effects of the two
forms of resolution of disputes.
Smyth, 282 F.3d at 281. Court approval of a consent decree must
involve some appraisal of the merits. See id. at 279. By
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contrast, a private settlement does not, ordinarily, receive court
approval. Id. at 280. A court entering a consent decree must
examine its terms to be sure they are fair and not unlawful. See
id.; see also T.D., 349 F.3d at 479 ("Mere involvement [by the
court] in a settlement . . . is not enough. There must be some
official judicial approval of the settlement."). As an example,
the Third Circuit held in John T. ex rel. Paul T. v. Delaware
County Intermediate Unit, 318 F.3d 545, 558-60 (3d Cir. 2003), that
neither a preliminary injunction nor a contempt order based on that
injunction contained the necessary judicial imprimatur because
neither had required the court to weigh the merits of the
underlying dispute.9
Further, an obligation to comply and the provision of
judicial oversight to enforce that obligation are the sine qua non
for a consent decree. See Smyth, 282 F.3d at 279-81; see also
Roberson, 346 F.3d at 82-83; Am. Disability Ass'n, 289 F.3d at
1320. While a consent decree begins as a settlement, it is one
that "includes an injunction, or some other form of specific
relief," which may ultimately be enforceable by contempt. C.A.
Wright & M.K. Kane, Law of Federal Courts § 98, at 702 n.2 (6th ed.
2002). This means enforcement through an action for breach of
9
A consent decree, which has attributes both of contracts
and of judicial decrees, Local No. 93, Int'l Ass'n of Firefighters
v. City of Cleveland, 478 U.S. 501, 519 (1986), must, therefore, go
beyond contractual obligations.
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contract, which may be available in a private settlement, is
insufficient to meet the standards for a consent decree. See
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 993
(8th Cir. 2003).
"The parties to a consent decree expect and achieve a
continuing basis of jurisdiction to enforce the terms of the
resolution of their case in the court entering the order." Smyth,
282 F.3d at 280. A private settlement agreement, by contrast, does
not require the same level of judicial oversight.
Another characteristic of the judicially approved
obligations in a consent decree is that a party seeking to modify
a consent decree must meet a significant burden to demonstrate that
circumstances have changed to a degree that justifies a
modification. See generally Rufo, 502 U.S. at 378-83; see also
Fed. R. Civ. P. 60(b). This is so because, by its nature, a
consent decree contemplates a court's continuing involvement in a
matter.10
Application of these principles necessarily results in
the conclusion the order entered here did not meet the judicial
imprimatur standards for a prevailing party. Whether an order
10
In Pierce, a pre-Buckhannon case where the Supreme Court
affirmed an award of EAJA fees, the district court administered and
enforced the settlement agreement reached. See Pierce, 487 U.S. at
556 (noting that the government had created a $60 million
settlement fund and that a California federal court had taken
responsibility for administering the settlement).
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contains a sufficient judicial imprimatur can only be determined by
determining the content of the order against the entire context
before the court. The order here lacked all of the core indicia of
a consent decree. The court did not order USCIS to do anything.11
The 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. There was no basis on which the
court could evaluate the merits because the USCIS never filed an
answer, never raised the potential defenses it had, and there never
was an engagement of any sort on the merits for the district court
to consider.12 Further, the order itself did not contain provisions
11
We need not address what the proper vehicle would have
been had the USCIS failed to carry through with its representation
that it would grant citizenship. But it is clear that the district
court erred in concluding it could directly hold the USCIS in
contempt in such circumstances because the order did not issue a
mandate to the USCIS. Before a court can find a party in contempt
for violating an order, it must conclude that "the words of the
court's order have clearly and unambiguously forbidden the precise
conduct on which the contempt allegation is based." United States
v. Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005) (emphasis in
original); see also id. ("[T]he test is whether the putative
contemnor is 'able to ascertain from the four corners of the order
precisely what acts are forbidden.'" (emphasis added) (quoting Goya
Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 76 (1st Cir.
2002))). A consent decree may itself contain mandatory language
that is directly enforceable by a contempt action.
12
This case is factually distinguishable from the Tenth
Circuit's recent decision in Al-Maleki v. Holder, No. 07-4260, 2009
WL 692612 (10th Cir. Mar. 18, 2009). There, the court upheld an
award of fees under the EAJA where the district court, after the
case was filed, denied the government's initial motion for an
unrestricted remand after a hearing, ordered the government to file
an answer, accepted the representations in the answer, then granted
a joint motion to remand, and entered an order expressly directing
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for future enforcement typical of consent decrees. See Kokkonen,
511 U.S. at 381; Saccoccia, 433 F.3d at 28. The order also did not
resolve a dispute between the parties, it merely returned
jurisdiction to the agency to allow the parties to carry out their
agreement.13 Indeed, the order would not create prevailing party
the USCIS to administer the oath of citizenship to the applicant,
Abbas Al-Maleki. The court found an order directing the agency to
act was required because, as the court noted, "at the time the
district court's order was entered, USCIS had not yet naturalized
Al-Maleki or made a binding commitment to do so." Id. at *3.
Here, there were no such proceedings. No such order was entered;
the court only remanded to the agency for it to act on its promise
to grant citizenship. Our pointing out these factual distinctions
should not be taken as agreement with the panel decision of the
Tenth Circuit on this or any other point.
13
The dissenters appear to characterize the district court
as either having essentially issued an injunction requiring the
agency to perform certain actions or as somehow having turned the
remand into a consent decree. The dissenters' reading is not based
on the actual October 12, 2006 remand order, but on the district
court's later characterization of the order. The argument is
flawed for a number of reasons. First, the district court itself
did not at any time characterize itself as having issued an
injunction or as having approved a consent decree which
incorporated other terms into its order, and properly so. The
requirements of Rule 65 were never met nor sought to be met nor was
this presented as a consent decree.
Second, the October 12, 2006 order on its face is merely
an allowance of a motion to remand, it was not an injunction nor
did it incorporate anything else. On its face, the order was
unambiguous and lacked any provision mandating the USCIS to act or
expressly retaining jurisdiction to force the government to act.
While the allowance of motions for remand after litigation may meet
the EAJA criteria for judicial imprimatur, this did not.
Third, while a district court's later characterization of
what it had intended in an earlier order may at times be helpful,
this situation does not fall into any of the usual patterns. For
example, the district court was not involved in settlement
negotiations which enabled it to shed light on the nature of the
settlement. See F.A.C., Inc. v. Cooperativa de Seguros de Vida de
P.R., 449 F.3d 185, 192 (1st Cir. 2006). Nor was this an issue of
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status under the tests adopted by any of the circuits. See, e.g.,
Davy, 456 F.3d at 165-66; Rice Servs., 405 F.3d at 1027; T.D., 349
F.3d at 478; Roberson, 346 F.3d at 81; Truesdell, 290 F.3d at 165;
Am. Disability Ass'n, 289 F.3d at 1320-21; Smyth, 282 F.3d at 276.
Aronov's argument is also inconsistent with Smith, which
held that the fact that the defendant has voluntarily agreed to
change its behavior does not lead to prevailing party status for
the plaintiff. A plaintiff does not become a prevailing party if
the court merely recognizes what the government has voluntarily
whether statements from the bench were meant to be a judicial
order. See New Eng. Reg'l Council of Carpenters v. Kinton, 284
F.3d 9, 30 (1st Cir. 2002). Nor was there any ambiguity in its
October 12 order. See Harvey v. Johanns, 494 F.3d 237, 242 (1st
Cir. 2007).
Fourth, it is also firmly the law that there must be a
clear basis within the order (of October 12) for both the court's
continuing jurisdiction and its power to enforce an agreement
between the parties. Kokkonen, 511 U.S. at 381; Saccoccia, 433
F.3d at 28. In F.A.C., we held that a court's order must expressly
retain jurisdiction or expressly incorporate the terms of a
settlement agreement to satisfy Kokkonen. A "bare reference to 'a
settlement agreement' does not satisfy Kokkonen." F.A.C., 449 F.3d
at 190. That was not done here. See also Smith, 401 F.3d at 24("For an order to be considered the functional equivalent of a
consent decree, . . . '[t]he obligation to comply with a
settlement's terms must be expressly made part of a court's order
for jurisdiction to enforce the settlement after dismissal of the
action to exist.'" (quoting Smyth, 282 F.3d at 283 (emphasis
added))); Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 431-32
(5th Cir. 2002) (holding a district court order that included a
settlement order attached as an exhibit did not satisfy Kokkonen
because "to make a settlement agreement part of a dismissal order
by incorporation, Kokkonen requires a district court to clearly
indicate its intention within the dismissal order itself by
expressly incorporating the agreement's terms" and noting that "a
number of our sister circuits have similarly interpreted
Kokkonen").
-19-
agreed to and only "requir[es] [the government] to follow through
with what [it] had already voluntarily promised to do." Smith, 401
F.3d at 27.
Aronov makes a separate argument that a remand to the
agency was necessary so that citizenship could be granted, and that
this suffices to make him a prevailing party. We need not resolve
the question of whether the agency could have acted without the
remand,14 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. See, e.g., Rice Servs.,
405 F.3d at 1025 (under the EAJA, securing a remand order alone is
insufficient; the claimant must secure relief on the merits); see
also Envtl. Def. Fund, Inc. v. Reilly, 1 F.3d 1254, 1257-58 (D.C.
Cir. 1993) (same, applying Resource Conservation and Recovery Act).
Aronov's argument is simply an effort to revive the "catalyst
theory," which the Supreme Court has rejected.
B. Substantial Justification
Even if the court order in this case had the attributes
of a consent decree, the remaining condition for an EAJA award has
not been met. We also hold as a matter of law that the government
14
Compare Etape v. Chertoff, 497 F.3d 379, 383-87 (4th Cir.
2007) (holding that a district court has exclusive jurisdiction
once a § 1447(b) suit is filed), and United States v. Hovsepian,
359 F.3d 1144, 1159 (9th Cir. 2004) (en banc) (same), with Xie v.
Mukasey, 575 F. Supp. 2d 963, 964-65 (E.D. Wis. 2008) (holding that
the court and USCIS have concurrent jurisdiction), and Bustamante
v. Chertoff, 533 F. Supp. 2d 373, 376 (S.D.N.Y. 2008) (same).
-20-
has met its burden to show its pre-litigation actions or inactions15
which led to this suit were substantially justified.
An action is "substantially justified" if "it has a
reasonable basis in law and fact." Pierce, 487 U.S. at 566 n.2.
The government's conduct must be "justified to a degree that could
satisfy a reasonable person." Id. at 565; see also Schock, 254
F.3d at 5. The government need only have "a reasonable basis both
in law and in fact for its position." De Allende v. Baker, 891
F.2d 7, 12 (1st Cir. 1989); see also United States v. Yoffe, 775
F.2d 447, 449 (1st Cir. 1985).
Importantly, for EAJA purposes, the position of a
government agency can be substantially justified even if a court
ultimately determines the agency's reading of the law was not
correct. Pierce, 487 U.S. at 566 n.2 ("[A] position can be
justified even though it is not correct, and we believe it can be
substantially . . . justified if a reasonable person could think it
correct."). The government's position as to what the law requires
may be substantially justified even if its interpretation of its
legal obligations is not ultimately affirmed by a court. Schock,
254 F.3d at 5. In De Allende, we held that the district court
abused its discretion in awarding attorneys' fees under the EAJA
when the government was "at least reasonable" in denying a visa,
15
The parties agree that the government's post-litigation
conduct was substantially justified.
-21-
even though the applicant's interpretation of the underlying law
ultimately prevailed. De Allende, 891 F.2d at 12, 13; see also Li
v. Keisler, 505 F.3d 913, 920 (9th Cir. 2007) (holding, under the
EAJA, that "[i]n the absence of guidance from this court, the
government's position was substantially justified"); Trahan v.
Brady, 907 F.2d 1215, 1219-20 (D.C. Cir. 1990) (finding substantial
justification where government acted in response to what it
reasonably, though incorrectly, believed was its statutory
obligation).
And of course, if the agency reasonably believes the
action or inaction is required by law, then, by definition it
cannot be the basis for an award of EAJA fees. See Dantran, Inc.
v. U.S. Dep't of Labor, 246 F.3d 36, 41 (1st Cir. 2001) (the
government's pre-litigation conduct of initiating a debarment
procedure was substantially justified because it was required to do
so by statute).
Aronov's argument rests on a fundamental misapprehension
of what substantially justified means. His argument is addressed
to why he thinks the agency is not legally "right" in its position
and not to whether the USCIS position was substantially justified,
a different question. The test is whether a reasonable person
could think the agency position is correct. Pierce, 487 U.S. at566 n.2. While we think the agency was "right" in how it handled
the matter, the substantial justification analysis does not hinge
-22-
on whether the agency was right or wrong but on whether its actions
were reasonable.
Aronov concedes no case flatly held the law required the
agency to adopt his position. Nonetheless, he argues the position
was unreasonable because no statute mandates USCIS to use the
backlogged FBI name check,16 and that § 1447(b) establishes a
"statutory deadline" of 120 days after the interview to grant or
deny citizenship, and so violation of the deadline means the
government's position was not substantially justified.
The decision by the agency not to grant Aronov
citizenship until his background check was completed, even if that
exceeded 120 days, stemmed from two statutory mandates under which
the agency must operate. First, 8 U.S.C. § 1446(a) provides that
"[b]efore a person may be naturalized, an employee of [the USCIS]
. . . shall conduct a personal investigation of the person applying
16
In May 2008, USCIS had approximately 270,000 name check
cases pending for all categories of applicants, and over 80% of the
cases had been pending for more than 90 days. In April 2008, USCIS
and the FBI announced a joint plan to eliminate the backlog in name
check searches by refining the search process and increasing the
amount of staff dedicated to conducting searches. See Citizenship
and Immigration Services Ombudsman, Annual Report 2008, at 6-7,
available at http://www.dhs.gov/xlibrary/assets/CISOMB_Annual_
Report_2008.pdf. The number of pending name checks dropped to
approximately 95,000 by August 2008. See Press Release, Update on
Pending FBI Name Checks and Projected Naturalization Processing
Times, http://www.dhs.gov/xnews/releases/pr_1220993097713.shtm. An
amicus brief filed by the American Immigration Lawyers Association
reported a study of cases filed in district courts in the First
Circuit. It concluded that plaintiffs had filed 137 cases
involving naturalization delay litigation in 2007.
-23-
for naturalization." Second, in a budgetary statute that has
continuing effect, Congress provided that "none of the funds
appropriated or otherwise made available to the [USCIS] shall be
used to complete adjudication of an application for naturalization
unless the [USCIS] has received confirmation from the [FBI] that a
full criminal background check has been completed." Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, Pub. L. No. 105-119, 111 Stat. 2440, 2448-49
(1997) [hereinafter 1997 Appropriations Act]. These are statutory
commands the agency could not ignore.
Aronov's argument is that the phrase "confirmation from
the [FBI] that a full criminal background check has been completed"
did not require the USCIS or the FBI to include an FBI name check
in that process. While it might have been reasonable, he argues,
to require the FBI name check if it could have been completed
within 120 days, it was not reasonable to do so if that name check
requirement virtually guaranteed that the application process would
take longer than 120 days to complete.
It is true that Congress did not define for the agency
what a full criminal background check was. Congress chose to let
the USCIS, with its particular expertise, decide the content of
that "confirmation from the [FBI] [of] a full criminal background
check." 1997 Appropriations Act, 111 Stat. at 2448-49. That
delegation to USCIS is entirely sensible for a number of reasons,
-24-
including the sometimes rapidly evolving law enforcement
technologies. The USCIS decided in 2002 that the inclusion of FBI
name checks provided better full criminal background
investigations. It reached this conclusion after the terrorist
attacks of September 11, 2001 and after it discovered that
deficiencies in its previous screening process had resulted in the
grant of naturalization to a man suspected of ties to the terrorist
group Hezbollah. See S.S. Hsu & N.C. Aizenman, FBI Name Check
Cited in Naturalization Delays, Wash. Post, June 17, 2007, at A1.
Also, Congress used the word "full" criminal background check,
which supports the choice of the commonly used FBI name checks.17
Further, Congress has since essentially endorsed the
USCIS's choice to use FBI name checks as part of the required
criminal background check when, in 2007 (after the delay in this
case), it addressed the delays by appropriating $20 million to
USCIS to "address backlogs of security checks associated with
pending applications and petitions" provided that the agency
submitted a plan to eliminate the backlogs and ensure that the
17
The FBI provides name check information to dozens of
federal, state, and foreign agencies "seeking background
information from FBI files on individuals before bestowing a
privilege -- [w]hether that privilege is government employment or
an appointment; a security clearance; attendance at a White House
function; a Green card or naturalization; admission to the bar; or
a visa for the privilege of visiting our homeland." Foreign Travel
to the United States: Testimony Before the H. Comm. on Gov't
Reform (July 10, 2003) (statement of Robert J. Garrity, Jr.,
Assistant Dir. (Acting), Records Mgmt. Div., FBI), available at
2003 WL 21608243.
-25-
agency "has the information it needs to carry out its mission."18
Consolidated Appropriations Act of 2008, Pub. L. No. 110-161, div.
E, tit. IV, 121 Stat. 1844, 2067 (Dec. 26, 2007).
Congress chose not to prohibit the use of the FBI name
check, but rather provided funding to expedite the process USCIS
had chosen. The agency's, and the FBI's, choices to use name
checks were clearly within their legal authority and were
reasonable. Principles of administrative law require that courts
defer to reasonable interpretations by an agency on matters
committed to the agency's expertise by Congress. Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984); Global NAPs, Inc. v. Verizon New Eng., Inc., 505 F.3d 43,
47 (1st Cir. 2007). Agencies are also entitled to deference with
respect to policy determinations. Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled on other
18
Congress's appropriation also addresses amicus's policy
argument that the fact that cases brought under § 1447(b), like
Aronov's, have spurred the agency to speed up the name check
process should lead us to award fees. While § 1447(b) claimants
and their counsel may play a commendable role in bringing attention
to the backlog problem, amicus's argument is relevant only to the
catalyst theory. Further, the government had been aware of the
backlog in security checks before the peak in litigation that
amicus cites, see, e.g., Citizenship and Immigration Services
Ombudsman, Annual Report 2004, at 4-5, available at
http://www.dhs.gov/xlibrary/assets/CISReport_to_Congress.pdf, and
it responded by securing additional resources to address the
problem, see, e.g., Oversight of the Federal Bureau of
Investigation: Hearing before the S. Judiciary Comm. (Sept. 17,
2008) (statement of Robert S. Mueller, III, Dir., FBI) ("[W]hen we
had the backlog, [and] recognized it, we sought the funding, [and]
received the funding to address the backlog.").
-26-
grounds by Califano v. Sanders, 430 U.S. 99 (1977); Global NAPs,
505 F.3d at 47; Associated Fisheries of Me., Inc. v. Daley, 127
F.3d 104, 109 (1st Cir. 1997). Once the USCIS made that choice, it
acted under the requirements of law -- its own regulations -- in
awaiting the full background check. Aronov argues the agency was
not permitted to make that choice because it was mandated by
statute, § 1447(b), to complete all checks within 120 days.
In its briefing to this court, USCIS has taken the
position that the statute does not impose a flat 120-day deadline
to grant citizenship. The agency argues that the plain text of the
statute says only that if the agency fails to make a determination
of citizenship within the 120-day period after the interview, "the
applicant may apply to the United States district court" for it to
"determine the matter or remand the matter, with appropriate
instructions, to the Service to determine the matter." 8 U.S.C.
§ 1447(b). The agency also supports its reading with a reference
to the Congressional history. See 135 Cong. Rec. H4539, H4542-43,
1989 WL 182156 (daily ed. July 31, 1989) (legislative history of
§ 1447(b)'s 120-day provision) (discussing the importance of
addressing delays but making no mention of a deadline on the
agency).
If the statute is read literally, as the USCIS argues,
the agency could reasonably believe it does not violate the statute
by not acting within 120 days on the grounds that the statute does
-27-
not command it to act within the deadline. Cf. United States v.
James Daniel Good Real Prop., 510 U.S. 43, 63 (1993) (holding that
dismissal of government's forfeiture action for failure to follow
statutory timing guidelines was unwarranted because "if a statute
does not specify a consequence for noncompliance with statutory
timing provisions, the federal courts will not in the ordinary
course impose their own coercive sanction").
Aronov replies that even if the statute does not set a
deadline of 120 days, the agency by regulation has. See 8 C.F.R.
§ 335.3(a) ("A decision to grant or deny the application shall be
made at the time of the initial examination or within 120 days
after the date of the initial examination of the applicant . . .
."). That regulation should, of course, be read in the context of
the regulations defining when an initial determination may take
place. Aronov was mistakenly given a premature initial
examination. See id. § 335.2(b).
Even were the agency's views wrong as to the requirement
for FBI name checks and as to whether the statute and/or regulation
imposed a flat 120-day deadline, its views were still substantially
justified. Neither the Supreme Court nor this court has ever held
that FBI name checks are not required as part of full FBI
background checks or that § 1447 imposes an absolute time limit for
granting citizenship regardless of whether the name check is
completed. At most, then, this is a situation in which an agency
-28-
has imposed regulatory requirements on itself that are in tension,
and the solution it chose, to bend the 120-day rule because the
background check was not completed, is entirely reasonable.
Independently, the choice by USCIS to favor national
security in requiring a full check of the background of a
citizenship applicant over a self-imposed 120-day deadline,
regardless of whether the interview was prematurely granted here,
cannot be unreasonable. As the USCIS has stated:
Although [FBI name checks] may require a more
lengthy processing time, USCIS believes that
performing them is essential to identifying
national security and public safety concerns
that would not have been uncovered by other
means. This is particularly true given that
in[] a few cases, the information obtained
from the FBI through this process has
reflected very significant issues and risks.
FBI name checks disclose information to USCIS
that is otherwise not available. . . . USCIS
is committed to effective background checks,
and thus is committed to the FBI name check.
USCIS, Response to the Citizenship and Immigration Services
Ombudsman's 2006 Report, at 10, available at http://www.dhs.gov/
xlibrary/assets/USCIS-Response-Ombudsman-06-Report-May-2007.pdf.
It is not unreasonable for the agency to require greater certainty
when deciding whether to grant citizenship. See Alexander v. INS,
74 F.3d 367, 370 (1st Cir. 1996) ("[T]he right in question --
American citizenship -- is one of the most precious imaginable.").
Indeed, the importance of the greater certainty that the
name check provides is highlighted by the agency's choice in 2007
-29-
to address the backlog problem by distinguishing between applicants
for residency and applicants for citizenship -- USCIS grants
residency to applicants if their cases were otherwise complete but
their name checks remained pending over 180 days from the date of
the initial request. See USCIS Interoffice Memorandum, Revised
National Security Adjudication and Reporting Requirements (Feb. 4,
2008), available at http://www.uscis.gov/files/pressrelease/DOC017.
PDF. The agency reasonably concluded that, if the name checks
turned up negative information about applicants, it could initiate
removal proceedings against those granted residency while it would
have much more difficulty proceeding against those granted
citizenship. See S.S. Hsu, U.S. to Skirt Green-Card Check, Wash.
Post, Feb. 12, 2008, at A3 (citing statement by USCIS spokesperson
Christopher S. Bentley).
Aronov advances one more reason why, in his view, the
agency had been unreasonable. He argues that the USCIS had created
a system for giving priority to certain applicants, under which the
agency would request the application be expedited if, for example,
the applicant were facing military deployment. One of the official
factors is whether the applicant has filed an action for mandamus.19
Aronov says that this has created an incentive system which
19
The criteria for expediting are: "Military deployment
must be imminent," "Age-out benefits," "Writ of Mandamus,"
"Immigration Judge cases -- grant of lawful permanent residence,"
and "Compelling reasons as provided by the requesting office (i.e.,
critical medical condition) assessed on a case by case basis."
-30-
requires candidates to sue to get priority in having FBI name
checks done, which unreasonably forces applicants to sue. As the
USCIS points out, the logic of this argument is to impose EAJA fees
on it in the numerous instances it has benefitted an applicant by
giving priority to the applicant's name check.
The reasoning assumes there is some right in the
applicant to priority, but there is no statutory right, given to
Aronov or anyone else, to jump the queue. And the agency's choice
to give priorities to the categories it selected was a rational
allocation of resources,20 which must be spent on litigation if the
agency does not work out a voluntary solution.21 For the same
20
Aronov and amicus argue that in an EAJA action, a court
can never consider the resources of the agency on the question of
whether the agency's actions were substantially justified. That is
not so. Aronov and amicus wrongly rely on the Court's statement in
Commissioner, INS v. Jean, 496 U.S. 154 (1990), that under the
EAJA, "[t]he Government's general interest in protecting the
federal fisc is subordinate to the specific statutory goals of
encouraging private parties to vindicate their rights." Id. at
164-65 (footnote omitted). This statement addresses only the
argument, which the government does not make here, that the
agency's need for resources should outweigh a successful
applicant's right to an award. It is simply irrelevant to the
separate issue of whether the government's prelitigation position
was substantially justified. A court can, and should, take into
account the resources that an agency has to meet its statutory
commands and to proceed in fairness to all applicants in light of
the constraints under which it operates. The EAJA was meant to
allow plaintiffs to challenge "unjustified governmental action";
the state of an agency's resources is material to whether its
choice was or was not justified. Here, the agency was justified in
acting as it did in light of its resources.
21
In Al-Maleki, the Tenth Circuit found the government's
prelitigation conduct not substantially justified. There, the
issue was defined as whether the USCIS had unreasonably rejected
-31-
reasons, Aronov's argument that he should be given fees against the
FBI if not the USCIS fails.
III.
The order awarding attorneys' fees is reversed and the
application for fees is ordered dismissed with prejudice.
-Dissenting Opinions Follow-
petitioner's informal efforts to resolve the matter and failed,
after the 120-day period, to request an expedited FBI name check.
The only justification presented by the government, unlike this
case, was that it was unable, at that point, to request expedition.
The circuit court found this was factually untrue. It also held
"[b]ecause USCIS ha[d] not offered any other justification for its
prelitigation actions," Al-Maleki, 2009 WL 692612, at *7, there was
no abuse of discretion. Thus, that court was not faced with the
justifications offered to us.
-32-
TORRUELLA, Circuit Judge (Dissenting). This appeal
presents a recurring example of what appears to be this Court's
varying standards when judging governmental power as compared to
those that apply to citizen challenges to government authority.
I join Judge Lipez's dissent, which carefully explains
how the government failed to comply with its own regulations and
deadlines, thereby unreasonably forcing Aronov to sue to obtain
relief. I write separately only to lament the double standard we
apply. It is with monotonous regularity that we dispatch claims of
immigration petitioners who have failed to meet one filing deadline
or another.1 That outcome is sometimes dictated by law. Yet, when
a successful plaintiff attempts to get relief provided by the law
by seeking $4,270.94 in attorney's fees incurred while forcing the
government to adjudicate his much-delayed application, this Court
uses exceptional en banc procedures to reverse the award.2 Even
established rules do not seem to influence this Court when it seeks
1
See, e.g., Chedad v. Gonzales, 497 F.3d 57, 66 (1st Cir.
2007) (rejecting an immigrant's claim to adjustment of status by
refusing to toll the time period for voluntary departure while a
motion to reopen was pending), overruled by Dada v. Mukasey, 128 S.
Ct. 2307 (2008); Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.
2005) (explaining limitation on judicial review of BIA
determinations regarding timeliness of asylum applications); Zhang
v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (explaining the strict
jurisdictional timing requirements on appeals of asylum
applications and limitation on tolling).
2
See also United States v. Vega-Santiago, 519 F.3d 1, 7
(1st Cir. 2008) (en banc) (Torruella, J., dissenting).
-33-
to expand government power or shield federal agencies from the
consequences of their own failings. Instead, this Court adopts
amorphous policy interests alleged by the government through
bombastic exaggeration and doomsday predictions in its en banc
petition. See Majority Opinion at p. 4 (citing USCIS's argument
that the panel opinion would have "dangerous systematic
consequences far beyond this case" and would be an "'enormous
disincentive for the agency to settle these cases'").
On the issue of whether Aronov was a prevailing party,
the majority ignores our sensible precedent that we defer to a
district court on the meaning of its own orders. See New England
Regional Council of Carpenters v. Kinton, 284 F.3d 9, 39 (1st Cir.
2002) (affirming a denial of attorney's fees against Massport).
The majority then proceeds to resolve the issue without itself
bothering to decide the jurisdictional effect of the district
court's order. In other words, the majority adopts the
government's position on imprimatur without deciding whether USCIS
was free to act without the district court's explicit approval of
the parties' proposed course of action. The majority concludes
that even assuming the district court's order constituted a
transfer of its exclusive jurisdiction back to USCIS, the district
court's decision was not a consideration of the merits. This
conclusion replaces the district court's own explanation of its
order with an assumption that the district court exercised its
-34-
power to remand without consideration. Such a conclusion is unfair
to our district courts and is not even supported by the precedent
on which the majority relies. See Rice Servs., Ltd. v. United
States, 405 F.3d 1017, 1025 (Fed. Cir. 2005) (stating that,
depending on the context and effect of the order, a remand to an
administrative agency can constitute prevailing on the merits).
Here, where the remand order effectively mandated the relief Aronov
sought and changed the jurisdictional landscape such that that
relief could be awarded, the majority must strain to avoid seeing
judicial imprimatur.3
Similarly, in supporting its ruling for the government on
this issue, the majority effectively says that district courts do
not have authority to sanction parties that fail to comply when the
court allows a clear and unambiguous motion seeking to compel some
3
In this regard, I see the Tenth Circuit's recent decision
as indistinguishable from the present case on the prevailing party
issue. See Al-Maleki v. Holder, No. 07-4260, 2009 WL 692612 (10th
Cir. Mar. 18, 2009). The majority simultaneously admits that the
decision may be contrary to its view while attempting to
distinguish it on the thinnest of grounds. That the remand order
in that case was slightly more detailed and that more litigation
had transpired before the remand order cannot be sufficient to
distinguish Al-Maleki. Id. at *3. These differences in formatting
are not relevant to the effect and force of the remand order or to
the Tenth Circuit's conclusion that the government's catalyst
arguments were unconvincing. Id. Rather the functional posture of
both cases is the same: the district court agreed with the parties
joint request for remand for the purpose of allowing the
plaintiff's application. Thus, the majority adoption of the
government's position that Al-Maleki is distinguishable is
strained, elevates form over function, and effectively does create
a circuit split.
-35-
specific action. This extension of the rule that formal
injunctions must not incorporate other documents by reference, see
Fed. R Civ. P. 65(d), seems to me to be both questionable and
cumbersome. Nonetheless, the majority unhesitatingly adopts it to
support the government's position.
Finally, on the issue of substantial justification, the
majority again reaches to support the government's position.
Though the agency's own regulation spells out a clear rule --
decisions must be made within 120 days of the initial examination
-- the majority calls the agency's violation of its own rule
reasonable. Specifically, to avoid granting Aronov relief, the
majority relies on the government's attenuated insinuations that
our national security will be threatened by ruling against it. But
Aronov's modest request for attorney's fees does not seek to
prevent the government from performing background checks. Rather
he seeks only to recover the costs he was forced to incur to obtain
adjudication of his petition after an excessive delay attributable
to backlog and a failure to follow protocol. Only through
acquiescence to the government's policy suggestions can the
majority conclude that it would be unreasonable to expect USCIS to
conduct the necessary background checks while complying with its
own timing regulations.
-36-
With due respect, I suggest that our jurisprudence would
better reflect the time-honored motto, "Equal justice under law,"4
if we showed the same doctrinal flexibility and credulity to policy
arguments presented by citizens asking us to limit governmental
power, or for compensation for harm caused by governmental error,
as shown by the majority to the government in this appeal. For
these reasons, and the reasons stated by Judge Lipez, I
respectfully dissent.
-Dissenting Opinion Follows-
4
As appears engraved on the building housing the Supreme
Court of the United States.
-37-
LIPEZ, Circuit Judge, with whom TORRUELLA, Circuit Judge,
joins, dissenting. I respectfully dissent from the decision of the
majority narrowing the class of plaintiffs who can obtain
attorney's fees under the Equal Access to Justice Act ("EAJA").
With its strangely dismissive view of a decision of the district
court explaining why Aronov is a prevailing party, the majority
refuses to accord that status to an immigrant who, facing a
substantial delay in the processing of his application for
naturalization, exercised his statutory right to sue the U.S.
Citizenship and Immigration Service ("USCIS") and obtained an order
from the district court remanding the matter to USCIS so that he
could be made a citizen. Invoking national security concerns that
are not implicated here, the majority characterizes as
substantially justified the conduct of USCIS, whose delay in
processing the naturalization application was both contrary to
statute and to its own regulations. These legal conclusions are
unwarranted, unwise, and contrary to the purpose and promise of the
EAJA.
I.
The facts of this case are straightforward. Aronov
applied for naturalization with the Vermont Service Center of USCIS
on May 22, 2004. On February 14, 2005, USCIS conducted an initial
examination of Aronov regarding his application. As the government
acknowledges, the agency's interview with Aronov was premature.
-38-
USCIS's own regulation dictates that an initial examination should
be undertaken only after an applicant's full background check has
been completed. 8 C.F.R. § 335.2(b). After Aronov was
interviewed, federal law required USCIS to adjudicate his
application within 120 days. See 8 U.S.C. § 1447(b); 8 C.F.R. §
335.3(a). Aronov heard nothing from USCIS for over a year. He
made repeated inquiries about the status of his application. On
March 23, 2006, 402 days after his examination, Aronov received a
letter from the agency requesting six months more to complete
additional review. At that time, Aronov's statutory right to sue
USCIS in federal district court to compel action on his application
had already accrued. See 8 U.S.C. § 1447(b). On August 28, 2006,
560 days afer his initial examination, and 440 days past USCIS's
deadline for adjudicating the application, Aronov filed suit.
Thirty-nine days later, the background check was
complete. On October 6, 2006, the government and Aronov filed a
Joint Motion for Remand Pursuant to 8 U.S.C. § 1447(b). In full,
the joint motion read:
Pursuant to 8 U.S.C. § 1447(b), the parties in
this action, plaintiff . . . and defendants
Michael Chertoff, Secretary of the United
States Department of Homeland Security, et
al., hereby jointly move this Honorable Court
to remand this matter to the USCIS, so that
[it] can grant plaintiff's application for
naturalization, and schedule plaintiff's oath
ceremony for no later than November 8, 2006.
In support of this motion, the parties state
as follows:
-39-
1. On or about August 28, 2006,
plaintiff Alexandre Aronov filed this action.
2. Since that date, USCIS has
completed its review of plaintiff's
application for naturalization and, if
jurisdiction is returned to the agency, would
grant the application and schedule plaintiff's
oath ceremony for no later than November 8,
2006.
3. The governing statute, 8 U.S.C. §
1447(b), provides that, in cases in which the
agency has failed to render a decision on an
application for naturalization within 120 days
of the examination of the applicant, the
applicant may file suit in district court
requesting to adjudicate the application and
"[s]uch court has jurisdiction over the matter
and may either determine the matter or remand
the matter, with appropriate instructions, to
the Service to determine the matter."
Wherefore, with good cause having been
shown, the parties respectfully request that
this Court remand this matter to USCIS so that
it can grant plaintiff's application for
naturalization and schedule plaintiff for an
oath ceremony for no later than November 8,
2006.
On October 12, 2006, the court entered an electronic
order granting the motion and the remand. The docket text for the
remand order states: "Judge Nancy Gertner: Electronic ORDER entered
granting 3 Joint Motion to Remand to US Citizenship and Immigration
Services."1
1
The "3" references the docket number of the joint motion
and was hyperlinked to the joint motion's text.
-40-
On November 28, 2006, Aronov filed an application for
attorney's fees pursuant to the EAJA.2 The government opposed
Aronov's application, asserting that he was not a prevailing party
in the litigation under the test established in Buckhannon Board
and Care Home, Inc. v. West Virginia Department of Health and Human
Resources, 532 U.S. 598 (2001), and that the government's position
regarding his application was substantially justified. The
district court agreed with Aronov and ordered the government to pay
him $4,270.94 in attorney's fees and costs. In its order, the
district court explained the significance of its October 12 remand
order, stating, "the government here was granted not a dismissal,
but a remand to the agency conditional on the granting of
plaintiff's naturalization by November 8, 2006. Had the
naturalization not so occurred, the parties might very well be back
in front of this Court litigating a contempt action." Aronov v.
2
The EAJA provides:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing
party other than the United States fees and
other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred
by that party in any civil action (other than
cases sounding in tort), including proceedings
for judicial review of agency action, brought
by or against the United States in any court
having jurisdiction of that action, 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).
-41-
Chertoff, No. 06-11526, 2007 U.S. Dist. LEXIS 40455, at *5 (D.
Mass. Jan. 30, 2007) (emphasis in original). A timely appeal by
the government followed. A panel of the court affirmed the award.
Aronov v. Chertoff, 536 F.3d 30 (1st Cir. 2008). Subsequently, a
majority of the en banc court granted the government's petition for
rehearing en banc, vacating the panel opinion.
II.
Although parties are ordinarily required, win or lose, to
bear their own attorney's fees, see, e.g., Alyeska Pipeline Serv.
Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975), a number of
exceptions to this default rule have been adopted by statute. One
such exception, the EAJA, authorizes an award of attorney's fees
and costs to a litigant who has brought a civil suit against the
United States if (1) she is the prevailing party in the matter; (2)
the government fails to show that its position was substantially
justified; and (3) no special circumstances would make such an
award unjust. 28 U.S.C. § 2412(d)(1)(A); see also Schock v. United
States, 254 F.3d 1, 4 (1st Cir. 2001). By offering qualifying
litigants attorney's fees and other expenses, the EAJA seeks "to
remove economic deterrents to parties who seek review of
unreasonable government action." Schock, 254 F.3d at 4.
The court reviews the district court's decision to grant
or deny a fee application under the EAJA for abuse of discretion,
id., "mindful that the district court has an 'intimate knowledge of
-42-
the nuances of the underlying case,'" New Eng. Reg'l Council of
Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir. 2002) (quoting Gay
Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.
2001)). "Such deference is particularly appropriate where, as
here, the correctness of the court's decision depends in large part
on the proper characterization of its own statements." Id.A. Prevailing Party
The Supreme Court has long held that a plaintiff who
obtains a "settlement agreement[] enforced through a consent
decree" is a "prevailing party." See Buckhannon, 532 U.S. at 604
(citing Maher v. Gagne, 448 U.S. 122 (1980)). In cases following
Buckhannon, most courts have also permitted fees where the
plaintiff obtains an order equivalent to a consent decree. See
Roberson v. Giuliani, 346 F.3d 75, 81-82 (2d Cir. 2003) (noting the
agreement of a majority of appellate courts). For example, the
Fourth Circuit held that orders lacking the title "consent decree"
support an award if they are "functionally a consent decree," Smyth
ex rel. Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002), a
formulation we have also employed. See Smith v. Fitchburg Pub.
Schs., 401 F.3d 16, 24 (1st Cir. 2005); see also Rice Servs., Ltd.
v. United States, 405 F.3d 1017, 1025 (Fed. Cir. 2005) (court
action "equivalent" to a consent decree or judgment on the merits);
T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir.
2003) (settlements "sufficiently analogous" to consent decrees).
-43-
Given the posture of the underlying litigation, the
question in this case is whether the district court's remand order
is functionally equivalent to a consent decree. If the order is
functionally equivalent to a consent decree, then a fortiori it
possesses whatever "judicial imprimatur" a consent decree
possesses, see Buckhannon, 532 U.S. 605, and the order makes Aronov
a prevailing party. According to the majority, "three related
factors" must characterize an order that is the functional
equivalent of a consent decree. First, there must be a "court-
ordered" change in the legal relationship resulting from the
underlying litigation. Second, "there must be judicial approval of
the relief vis-a-vis the merits of the case." Third, there must be
"judicial oversight and ability to enforce the obligations imposed
on the parties." These factors must all be present if a court
order is to constitute the functional equivalent of a consent
decree. According to the majority, none of the factors was present
here.
The majority is wrong. All three factors were present
here. The change in legal relationship between USCIS and Aronov
was court-ordered. The court satisfied the requirements for
approval of a consent decree, which do not require the court to
state explicitly that it has approved the relief in relation to the
merits of the case. Lastly, the court retained jurisdiction to
-44-
enforce the agreement by incorporating the terms of the joint
motion into the remand order.
1. The change in legal relationship was court-ordered
During the litigation, only the district court possessed
the authority to give Aronov the relief he requested. After Aronov
filed suit, USCIS lost jurisdiction to adjudicate his application,
thereby precluding USCIS from naturalizing Aronov without further
court involvement. 8 U.S.C. § 1447(b) ("Such court has
jurisdiction over the matter and may either determine the matter or
remand the matter, with appropriate instructions, to the [USCIS] to
determine the matter."); see Etape v. Chertoff, 497 F.3d 379, 384-
85 (4th Cir. 2007). The parties acknowledged this jurisdictional
point in their joint motion for remand to the district court, which
highlights the terms of 8 U.S.C. § 1447(b).3 They understood that
3
Elsewhere parties have litigated the question of whether
the court maintains exclusive jurisdiction or, alternatively,
concurrent jurisdiction with the USCIS. Most courts have held that
the district court has exclusive jurisdiction over the application
until it has acted pursuant to the statute. See, e.g., Etape, 497
F.3d at 384-85 (holding that section 1447(b) vests the district
court with exclusive jurisdiction over a naturalization
application); United States v. Hovsepian, 359 F.3d 1144, 1159 (9th
Cir. 2004) (en banc) (same). But see, e.g., Bustamante v.
Chertoff, 533 F. Supp. 2d 373, 381 (S.D.N.Y. 2008) (reaching the
opposite conclusion). In its initial argument to us, the
government did not suggest that USCIS maintained jurisdiction over
Aronov's application after he filed suit in district court. In the
en banc proceedings, the government alluded to the concurrent
jurisdiction argument. Whatever the government's intent with the
allusion, it is beside the point. The government's conduct of the
litigation reflected its view that it could not act on Aronov's
naturalization application without a remand order from the district
court. Moreover, as the Tenth Circuit recently pointed out in Al-
-45-
there had to be an intervening judicial order before Aronov could
obtain relief. Nothing about this order was automatic; the
district court had the discretion to either determine the
naturalization issue itself or remand to USCIS with instructions.
This is not the catalyst scenario of Buckhannon. There,
the plaintiff alleged that West Virginia law conflicted with
federal law, 532 U.S. at 601, and the West Virginia legislature
retained its authority throughout the litigation to
"unilateral[ly]" amend its laws. See Smyth, 282 F.3d at 278 (using
this expression). It exercised that authority and rendered the
suit moot, after which the government moved to dismiss the case.
Here USCIS could do no such thing. It lacked the authority to
"unilaterally" provide Aronov the relief he requested. The
district court's order was necessary to return authority to the
agency.4
Maleki v. Holder, No. 07-4260, 2009 WL 692612, at *3 (10th Cir.
Mar. 18, 2009), even if USCIS did retain concurrent jurisdiction
over the application after the suit was filed, "the district court
resolved the litigation before USCIS could voluntarily naturalize
[the applicant]." Id. (emphasis in original). This order of
events distinguishes Buckhannon regardless of the jurisdictional
question.
4
Contrary to the majority's suggestion, the fact that
USCIS acted voluntarily in coming to an agreement with Aronov does
not make Aronov ineligible for fees. Voluntary conduct by a
defendant is a necessary part of any consent decree process.
Indeed, as the Supreme Court has said, "the voluntary nature of a
consent decree is its most fundamental characteristic." Local No.
93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501,
521-22 (1986). Yet a plaintiff who obtains a consent decree is
eligible for fees. Maher, 448 U.S. at 129-30. Similarly, awarding
-46-
Moreover, the remand order mandated a change in the legal
relationship of the parties -- namely, that Aronov's status change
from alien to citizen through an oath ceremony that would take
place no later than November 8, 2006. According to the court, it
"remanded specifically 'so that USCIS can grant plaintiff's
application for naturalization, and schedule plaintiff's oath
ceremony for no later than November 8, 2006.'" Aronov, 2007 U.S.
Dist. LEXIS 40455, at *4 (quoting Joint Mot. to Remand). There is
no mistaking the district court's meaning here. Its remand order
incorporated by reference the joint motion of the parties and
thereby ordered USCIS to fulfill the promise that it made to Aronov
and the court in the joint motion. This was the district court's
own understanding of its order. See id. at *4-5.
A district court is in the best position to explain the
meaning of its own order. We defer routinely to the district
court's view of the significance of its remand order. See Kinton,
284 F.3d at 30 ("Clearly, the district court is in the best
position to determine whether its statements . . . should be
considered as the functional equivalent of a judicial order within
the meaning of Buckhannon."); Harvey v. Johanns, 494 F.3d 237, 242
Aronov fees because the remand order is functionally equivalent to
a consent decree would not conflict with our holding in Smith. See
Smith, 401 F.3d at 26-27 (noting the defendant's voluntary
conduct). The Smith panel expressly set aside as waived the
question of whether the order there was functionally equivalent to
a consent decree. Id. at 24.
-47-
(1st Cir. 2007) ("We must, of course, accord deference to the
district court's interpretation of the wording of its own order.");
see also Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987)
("[U]ncertainty as to the meaning and intendment of a district
court order can sometimes best be dispelled by deference to the
views of the writing judge.").
Here, the majority dismisses the district court's
assessment of its October 12 remand order in its subsequent
decision on attorney's fees as a "post-hoc explanation for a prior
order." If the majority means that the district court's
explanation is meaningless because the court could not incorporate
by reference the terms of the joint motion into the remand order as
a matter of law, then it is incorrect. Whether a court has
incorporated an agreement into an order depends on context. In
F.A.C., Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 449
F.3d 185 (1st Cir. 2006), we held that an oral settlement agreement
between two parties to a complex RICO dispute was not incorporated
into a dismissal order that referred to it. Id. at 190. However,
we expressly limited our rejection of the incorporation claim to
"the present case," noting, "[h]ard and fast rules may be unwise
because of variations in language and context."5 Id.5
In F.A.C., we discussed the importance of context to the
incorporation of a settlement agreement into a dismissal order.
F.A.C., 449 F.3d at 190. Here we are dealing with a remand order.
If anything, the case for incorporating by reference the terms of
a preceding motion into a remand order is stronger than the case
-48-
This is a sensible approach. District courts routinely
enter orders granting a party's motion without elaboration. The
idea that such an order cannot incorporate by reference the terms
of the motion to which the order responds is at odds with the daily
practice of the courts. To be sure, incorporation by reference may
be inappropriate for the entry of a consent decree that addresses
a complex lawsuit with many issues and multiple parties. But this
is not remotely such a case. The relief Aronov sought was
straightforward: "[a]djudicating [his] Application for
Naturalization . . . or, in the alternative, [r]equiring [USCIS] to
adjudicate [his] application for naturalization." Only two parties
were involved. The terms of their joint motion were clear. There
was no impediment, legal or practical, to the incorporation of that
joint motion into the district court's remand order.
One cannot examine the record below and conclude --
against the district court's interpretation of its own remand order
-- that the court did not refer to the joint motion with the intent
of incorporating its terms, and with the full expectation that the
promises made therein would be fulfilled. The parties' joint
for incorporating by reference the terms of a settlement agreement
into a dismissal order. Remand, unlike dismissal, expressly
contemplates an ongoing adjudication of a case by a lower court or
administrative agency, pursuant to the order of the remanding
court. See Blacks Law Dictionary (8th ed. 2004). Remanding courts
intend, and the parties expect, the remand order to instruct the
lower court or agency about what further proceedings should take
place, and orders often accomplish this by incorporation -- e.g.,
"We remand for proceedings consistent with this opinion."
-49-
motion makes specific representations to the court about the action
the defendant would take. The court's order refers to the joint
motion twice, once by name and once by docket number. USCIS could
only understand that the court was ordering it to carry out the
promise made to the court. USCIS would naturalize Aronov by
November 8, 2006, and thereby change his status from alien to
citizen.
2. The court satisfied the requirements for entering a
consent decree
The majority contends that a district court must
"appraise," "weigh" or "evaluate" the merits of a case in relation
to the relief provided by the consent decree. The requirements for
entering a consent decree were recently summarized by the Supreme
Court in Frew ex rel. Frew v. Hawkins:
Consent decrees entered in federal court must
be directed to protecting federal interests.
In [Local No. 93], we observed that a federal
consent decree must spring from, and serve to
resolve, a dispute within the court's subject-
matter jurisdiction; must come within the
general scope of the case made by the
pleadings; and must further the objectives of
the law upon which the complaint was based.
540 U.S. 431, 437 (2004) (citing Local No. 93, 478 U.S. at 525(collecting cases)); see also Conservation Law Found. of New Eng.,
Inc. v. Franklin, 989 F.2d 54, 59 (1st Cir. 1993) (listing same
requirements). We have also held that district courts must
determine that a proposed consent decree is fair, adequate and
reasonable before entering it. For example, in Conservation Law
-50-
Foundation, we wrote, "[d]istrict courts must review a consent
decree to ensure that it is 'fair, adequate, and reasonable; that
the proposed decree will not violate the Constitution, a statute or
other authority; [and] that it is consistent with the objectives of
Congress . . . .'" 989 F.2d at 58 (quoting Durrett v. Housing
Auth. of Providence, 896 F.2d 600, 604 (1st Cir. 1990)); see also
United States v. City of Miami, 664 F.2d 435, 441 (Former 5th Cir.
1981).
We agree that it would be difficult for a district court
to determine the fairness, reasonableness and adequacy of a
proposed agreement without making some evaluation of the merits of
the case in relation to the relief provided by the consent decree.
However, "how deeply the judge must inquire, what factors he must
take into account, and what weight he should give the settling
parties' desires will vary with the circumstances." Donovan v.
Robbins, 752 F.2d 1170, 1177 (7th Cir. 1984); see also United
States v. Charles George Trucking, Inc., 34 F.3d 1081, 1088 (1st
Cir. 1994) (holding that the substance of the fairness inquiry will
depend on the context). Moreover, neither Frew nor Conservation
Law Foundation require that a judge explicitly state, in the
court's order or elsewhere on the record, that she has determined
that a proposed agreement meets these requirements. See Frew, 540
U.S. at 437; Conservation Law Found., 989 F.2d at 58 (holding that
a court must "review" a proposed consent decree). As a reviewing
-51-
court, we assume that a judge understands the role the district
court is supposed to play in deciding whether to enter a consent
decree, and that the judge acts in accordance with that
understanding. As we explained previously regarding this very
issue,
the question is whether the record contains
adequate facts to support the decision of the
district court to approve the proposed
compromise. As to this, as the Supreme Court
has observed, "a reviewing court would be
properly reluctant to attack that action
solely because the court failed adequately to
set forth its reasons or the evidence on which
they were based."
United States v. Comunidades Unidas Contra La Contaminacion, 204
F.3d 275, 280 (1st Cir. 2000) (quoting Protective Comm. for Indep.
Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414,
437 (1968)).
Here, the record "contain[s] adequate facts to support
the decision of the trial court to approve the proposed
compromise[]." TMT Trailer Ferry, 390 U.S. at 437. Again, the
context is simple. There is one plaintiff, one government agency,
and a specific form of relief that is being sought. The judge had
the benefit of both the complaint and the parties' joint motion for
remand. The complaint identified the factual and legal bases for
providing relief. The joint motion isolated the relevant facts and
law, and asserted "good cause" for remanding to the agency for
naturalization. From these documents, the district court could
-52-
readily evaluate the merits of Aronov's claim in relation to the
relief described in the joint motion, and determine that the
jointly proposed agreement was "fair, adequate, and reasonable."6
The court also could determine that it met the requirements imposed
by Frew. In short, the record contains adequate facts to support
the court's decision to approve the proposed agreement and
incorporate it in an order of the court, and there is no reason to
assume, as the majority apparently does, that the court failed to
make the necessary determination.
3. The court retained jurisdiction to enforce the
agreement
The majority argues that the district court's order "did
not contain provisions for future enforcement typical of consent
decrees." But a consent decree need not contain a separate
provision explicitly retaining jurisdiction for future enforcement.
We have held that if the terms of an agreement are incorporated
6
There is no legal support for the majority's contention
that a defendant must file an answer or "raise defenses" before a
consent decree (or its equivalent) may be entered by a federal
court. Consent decrees may be entered at any stage of litigation,
and are regularly entered before a defendant has filed an answer.
See Maimon Schwarzschild, Public Law by Private Bargain: Title VII
Consent Decrees and the Fairness of Negotiated Institutional
Reform, 1984 Duke L.J. 887, 913 (noting that parties often
negotiate consent decrees before the complaint is filed, and that
during the period of study nearly one-third of Title VII consent
decrees involving the Department of Justice and public employers
were entered the day the complaint was filed). Here, in contrast,
both parties filed documents with the court. The joint character
of the motion for remand provided the court a reasonable basis for
evaluating the merits of the case.
-53-
into an order, the district court retains jurisdiction to enforce
that agreement. Smith, 401 F.3d at 24 ("'Either incorporation of
the terms of the agreement or a separate provision retaining
jurisdiction over the agreement will suffice [to retain
jurisdiction to enforce the agreement].'" (quoting Smyth, 282 F.3d
at 283)); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 381 (1994) (stating this proposition for dismissal
orders).7 Here, the district court incorporated by reference the
terms of the joint motion. This incorporation was sufficient to
retain jurisdiction for purposes of future enforcement.8
7
The majority's statement that "it is also firmly the law
that there must be a clear basis within the order . . . for both
the court's continuing jurisdiction and its power to enforce an
agreement between the parties" demonstrates its refusal to accept
Smith, which states that incorporation of a settlement agreement in
an order is sufficient for purposes of retaining jurisdiction to
enforce that agreement. Smith, 401 F.3d at 24. We have also said
that "hard and fast rules may be unwise [on the question of
incorporation] because of variations in language and context."
F.A.C., 449 F.3d at 190; see supra section II(A)(1). The only
authority the majority cites in support of its view, Kokkonen, does
not support it. Indeed, the language "clear basis within the
order" appears nowhere in Kokkonen. See Kokkonen, 511 U.S. at 379-
82. In fact, as several courts have noted, Kokkonen is silent on
whether reference suffices to incorporate an agreement for purposes
of retaining jurisdiction. See, e.g., Hospitality House, Inc. v.
Gilbert, 298 F.3d 424, 431-32 (5th Cir. 2002) ("[T]he Kokkonen
Court did not explicitly hold that a district court's order of
dismissal must contain an express statement incorporating a
settlement agreement in order to vest the court with ancillary
jurisdiction . . . ."); Lucille v. City of Chicago, 31 F.3d 546,
549 (7th Cir. 1994) (Cudahy, J., concurring).
8
To determine whether the remand order was the functional
equivalent of a consent decree, I need not decide whether the
remand order itself satisfied the procedural requirements necessary
for injunctions or to support a motion for contempt. See Fed. R.
-54-
4. The district court's order was the functional
equivalent of a consent decree
In summary, the change in legal relationship between
USCIS and Aronov was mandated by the remand order that incorporated
USCIS's representation that it would naturalize Aronov by a certain
date. The law does not require that the district court state
explicitly that it has evaluated the fairness, reasonableness, and
adequacy of a proposed consent decree. It is enough if the record
would permit the district court to make that evaluation. The
record in this simple case is ample for that purpose. By
incorporating the parties' joint motion, the remand order provided
Civ. P. 65(d) (discussing form of order); United States v.
Saccoccia, 433 F.3d 19, 28 (1st Cir. 2005) (requiring terms to be
clear and unambiguous). The crucial question, as the majority
acknowledges, is whether the district court retained jurisdiction
over the agreement. The remand order did this by incorporating the
terms of the joint motion by reference. Given this circumstance,
if USCIS had failed to comply with the remand order, Aronov could
have asked the court to issue an injunction confirming the
naturalization obligation of USCIS and ordering compliance with it.
Courts routinely issue supplemental orders to enforce a consent
decree as a prelude to the invocation of contempt authority. See,
e.g., King v. Greenblatt, 127 F.3d 190, 192 n.5 (1st cir. 1997)
(describing the district court's issuance of injunctions "to
implement the thrust of the earlier consent decree"). The majority
fails to recognize the distinction between consent decrees and
injunctions. It suggests wrongly that I have characterized the
district court "as having essentially issued an injunction." That
is not so. I have concluded that the district court entered the
functional equivalent of a consent decree. There are key
differences between consent decrees and injunctions -- the
viability of incorporation by reference being a principal one. The
majority appears to believe that any order that does not meet the
heightened standards applicable to injunctions and the contempt
sanction "does not order [the parties] to do anything" and leaves
the issuing court powerless to enforce the order. Such a
conclusion belies the law and common sense.
-55-
a continuing basis for enforcing the agreement if USCIS did not
comply with its representations to the court. Thus, the court's
remand order was the functional equivalent of a consent decree, and
Aronov was a prevailing party.9
B. Substantial Justification
In addressing the "substantial justification" issue, the
majority announces a broad rule to protect USCIS's authority to
make policy choices favoring national security interests. As I
will explain, no such authority is at issue. The question is much
narrower: whether the delay in this case was substantially
justified, in light of the fact that USCIS exceeded both the
statutory and regulatory deadlines governing the naturalization
process.
9
The Tenth Circuit's recent decision in Al-Maleki, 2009 WL
692612, at *2-3, affirmed an award of attorney's fees under EAJA to
a naturalization applicant who had filed suit under section 1447(b)
after there was a substantial delay in the adjudication of his
application. The court's prevailing party analysis is strongly
supportive of my analysis here. As I have already noted, supra
note 4, the court distinguished Buckhannon on the grounds that the
district court had resolved the litigation in favor of the
applicant before USCIS naturalized him. Id. at *3. Moreover, the
applicant, like Aronov, had submitted a joint motion with USCIS
representing to the court that USCIS would naturalize him by a
certain date. Id. The Tenth Circuit noted that the court's order
was "bas[ed] . . . [on] the parties' stipulations" in the joint
motion, and that the order was judicially enforceable against USCIS
if the agency failed to comply. Id. Entry of such an order, the
Tenth Circuit said, "not USCIS's stipulation, was the action which
indelibly alter[ed] the legal landscape between USCIS and [the
applicant]." Id. (internal quotation marks and citation omitted).
This order sufficed to make the applicant a prevailing party.
-56-
The government bears the burden of demonstrating that its
position was substantially justified. Schock v. United States, 254
F.3d 1, 5 (1st Cir. 2001). The Supreme Court has interpreted the
"substantially justified" language in the EAJA to require
reasonableness: "[A]s between the two commonly used connotations of
the word 'substantially,' the one most naturally conveyed by the
phrase before us here is not 'justified to a high degree,' but
rather 'justified in substance or in the main' -- that is,
justified to a degree that could satisfy a reasonable person."
Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Schock, 254
F.3d at 5; Dantran, Inc. v. U.S. Dep't of Labor, 246 F.3d 36, 40-41
(1st Cir. 2001). Thus, the key question is whether the
government's position has "a reasonable basis in law and fact."
Pierce, 487 U.S. at 566 n.2.
The majority argues that the government's pre-litigation
position insisting on compliance with the name check policy is
substantially justified because it "stemmed from two statutory
mandates under which it must operate," and because that policy has
since been endorsed by Congress. The first statute, 8 U.S.C. §
1446(a), provides that "[b]efore a person may be naturalized, an
employee of the [USCIS], or of the United States designated by the
Attorney General, shall conduct a personal investigation of the
person applying for naturalization." The second mandate cited by
the majority, the 1998 Appropriations Act, states: "During fiscal
-57-
year 1998 and each fiscal year thereafter, none of the funds
appropriated or otherwise made available to [USCIS] shall be used
to complete adjudication of an application for naturalization
unless [USCIS] has received confirmation from the Federal Bureau of
Investigation that a full criminal background check has been
completed . . . ." Depts. of Commerce, Justice & State, The
Judiciary & Related Agencies Appropriations Act of 1998, Pub. L.
No. 105-119, 111 Stat. 2440, 2448-49 (1997) (8 U.S.C. § 1446 note).
The majority also suggests that "Congress has since essentially
endorsed USCIS's choice to use FBI name checks . . . by
appropriating $20 million to USCIS to 'address backlogs . . ..'"
See Consolidated Appropriations Act of 2008, Pub. L. No. 110-161,
121 Stat. 1844 (2007).
Relying on Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-45 (1984), the majority
asserts that the court must defer to USCIS's decision to employ the
NNCP check because in these statutes Congress has committed
decision-making authority to the agency on these issues. The
agency has concluded, it says, that the comprehensive FBI name
checks are "essential" to the background investigations. Although
a small percentage of name checks take a considerable amount of
time to complete, isolated delays should not prevent the government
from maintaining the name check requirement as its policy.
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This argument misconstrues what is at stake in this case.
There is no challenge to the authority of USCIS to adopt the name
check program as a policy. What is challenged is the application
of that policy in this instance. Even if USCIS is entitled to
invoke Chevron to defend its use generally of the FBI name check
process, see generally Cass Sunstein, Chevron Step Zero, 92 Va. L.
Rev. 187 (2006) (analyzing the standards for determining whether an
agency interpretation is entitled to evaluation under the Chevron
framework), deference to the general policy does not imply that the
government was substantially justified in its dilatory handling of
Aronov's naturalization application.
The government's 440-day delay in acting on Aronov's
naturalization application exceeded the deadline imposed by section
1447(b), which gives a district court jurisdiction to entertain a
lawsuit by the applicant and evaluate a naturalization application
if the agency has failed to adjudicate the application within 120
days after conducting its initial examination. See Etape, 497 F.3d
at 385; see also Hovsepian, 359 F.3d at 1163 ("A central purpose of
[section 1447(b)] was to reduce the waiting time for naturalization
applicants." (citing H.R. Rep. No. 101-187, at 8 (1989); 135 Cong.
Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison))). Both
the courts and the agency itself have interpreted section 1447(b)
as imposing a 120-day deadline for agency action. See, e.g., Al-
Maleki, 2009 WL 692612, at *5 (treating statute as imposing a
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deadline); Hovsepian, 359 F.3d at 1161; 8 C.F.R. § 335.3(a) ("A
decision to grant or deny the application shall be made at the time
of the initial examination or within 120-days after the date of the
initial examination of the applicant for naturalization . . . .")
(emphasis added); see also Walji v. Gonzales, 500 F.3d 432, 439
(5th Cir. 2007) ("[B]ecause the clear intent of Congress was to
accelerate naturalization applications, and the statutory and
regulatory language gives a definite time frame for decision once
an examination has occurred, [§ 1447] is violated in situations
[where the 120-day deadline is not met].").
The majority's contention that the statute does not
command USCIS to act within the deadline is untenable. Although
the majority acknowledges that the agency has adopted a regulation,
8 C.F.R. § 335.3(a), that treats the 120-day time frame as a
deadline, the majority regards the statutory and regulatory frame
as merely aspirational, with no consequences for the agency if it
fails to comply.10 If Congress had taken such a related view of its
10
The majority also contends that USCIS "could reasonably
believe it does not violate the statute by not acting within 120
days on the grounds that the statute does not command it to act
within the deadline." The agency's own regulations belie this
claim. As noted, part 335.3(a) expressly treats the 120-day time
frame as a deadline. Moreover, as a matter of policy, if the
naturalization applicant goes to the trouble of filing a lawsuit
seeking mandamus on the basis that the 120-day deadline has
expired, the agency will capitulate and expedite the FBI name check
request. According to a document entitled "FBI Name Check Expedite
Criteria," which Aronov attached to his Reply to the government's
Response to his Motion for attorney's fees, "In order for USCIS to
expedite an FBI Name Check request, one of the following criteria
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120-day time frame, it would not have explicitly provided that an
applicant whose naturalization application remains unresolved at
the end of the 120-day period may file suit in federal court to
have the application either adjudicated by the court or remanded to
the agency with instructions to adjudicate it. See, e.g., Etape,
497 F.3d at 384-85 (concluding that after an applicant has filed
suit with the district court pursuant to § 1447(b), the court has
exclusive jurisdiction over the application).11
must be established: . . . Writ of Mandamus -- lawsuit pending in
Federal Court." This policy is an unmistakable acknowledgment that
the petitioner invoking his or her statutory right to file suit
under section 1447(b) has a sound basis in law and fact for doing
so. It is therefore more accurate to say that the agency's
wholesale disregard of the 120-day statutory and regulatory
deadline reflects its judgment that most naturalization applicants
whose applications are delayed beyond the 120-day statutory
deadline will not invoke their statutory right to sue.
11
In addition to section 1447(b)'s specific command, the
Administrative Procedures Act ("APA") offers a more general
directive to agencies to resolve matters presented to them within
a reasonable amount of time. See 5 U.S.C. § 555(b) ("With due
regard for the convenience and necessity of the parties or their
representatives and within a reasonable time, each agency shall
proceed to conclude a matter presented to it."). Our assessment of
what is reasonable is informed by the relevant statutes and
regulations. See Towns of Wellesley, Concord and Norwood, Mass.
v. FERC, 829 F.2d 275, 277 (1st Cir. 1987) (discussing the
guidelines, including the existence of a "rule of reason," which
govern the time an agency may take to make a decision) (citing
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir.
1984)); Caswell v. Califano, 583 F.2d 9, 16 (1st Cir. 1978)
(indicating that courts may look to statutory text to provide a
reasonable time limit on agency action). Here, section 1447(b) and
8 C.F.R. § 335.3(a) provide such guidance. See Sze v. INS, No. C-
97-0569 SC, 1997 WL 446236, at *7 (N.D. Cal. July 24, 1997) ("[T]he
120-day rule provides the court with a measure of what constitutes
a reasonable period for INS to process naturalization
applications.").
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Moreover, the idea that the agency's early examination of
Aronov was some sort of one-time "mistake," as the majority
suggests, is belied by the briefs, which contain ample discussion
of the "flood" of section 1447(b) lawsuits arising from delays in
the NNCP process.12 As they reveal, it was the agency's regular
practice to violate its own regulations by examining candidates
before receiving NNCP results, and then to compound that error by
missing the statutory and regulatory adjudication deadline, thereby
giving rise to a substantial number of lawsuits against the agency,
at a cost both to taxpayers and applicants. USCIS engaged in
precisely that conduct in Aronov's case. Yet, according to the
majority, this is a pre-litigation position "justified to a degree
that could satisfy a reasonable person." That is an indulgent
reasonable person who would view this government conduct so
benignly.13
Finally, the majority imports national security concerns
into its defense of USCIS's handling of Aronov's application. It
asserts sweepingly that "the choice by USCIS to favor national
12
See Brief for American Immigration Lawyers Association,
as Amicus Curiae in Support of Plaintiff, at 6-7.
13
I acknowledge the oddity that arises because of the
agency's regulations. If USCIS had complied with its regulations
and waited to interview Aronov until the FBI name check had been
completed, his waiting time for the completion of the
naturalization process might have been longer than it was here.
This fact does not alter the legal analysis. Once USCIS gave
Aronov his initial interview, it had to confront the clear timing
obligation imposed by Congress.
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security . . . regardless of whether the interview was prematurely
granted here, cannot be unreasonable." There is no basis in
federal law for holding that an agency is substantially justified
in ignoring its own regulations as long as it dutifully cites a
national security interest.
Moreover, the majority's invocation of these national
security interests reflects its continuing misapprehension of what
this case is about. There is no challenge to the general validity
of the name-check policy. There is no suggestion that Aronov's
naturalization application should have been approved without the
security check that the agency deemed necessary.14 Once Aronov
14
In citing these national security interests, the majority
accepts uncritically the relevance of the government's argument
that "background checks are critical to insuring public safety and
national security." I do not dispute this proposition, which is
irrelevant to the disposition of the case. The majority also
accepts uncritically the government's assertion that awarding
Aronov attorney's fees would "create an enormous incentive for
individuals frustrated with delays in the naturalization process to
file mandamus lawsuits." It is the agency itself that gives
applicants an incentive to file suit by choosing to request
expedition of name checks if an applicant files suit. The agency
could remove this incentive by requesting expedition before a suit
is filed, as the record shows it could. Finally, the majority also
endorses the government's suggestion that awarding attorney's fees
will create a "disincentive for the agency to settle these cases."
Yet the government already pursues such settlements in
jurisdictions where it faces the risk of having to pay attorney's
fees. See, e.g., Kats v. Frazier, No. Civ. 07-479, 2008 WL 2277598(D. Minn. May 30, 2008); Ghanim v. Mukasey, 545 F. Supp. 2d 1146(W.D. Wash. 2008); Phompanya v. Mukasey, No. C07-597MJP, 2008 WL
538981 (W.D. Wash. Feb 25, 2008); Berishev v. Chertoff, 486 F.
Supp. 2d 202 (D. Mass. 2007). The agency's decision to seek an
early compromise despite facing a risk of paying attorney's fees is
easy to understand. By refusing to settle the agency would risk
the payment of substantially higher EAJA fees because its
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filed a lawsuit, his application was approved promptly. Indeed,
the agency adopted a policy of giving priority to naturalization
applicants who filed lawsuits pursuant to section 1447(b). If a
naturalization applicant went through the time, trouble and expense
of filing a lawsuit against the government, the applicant was moved
to the head of the line. That policy might make sense to USCIS,
but it should not be cost-free in light of the additional expense
it imposes on the applicant for naturalization.15
Although I do not foreclose the possibility that the
government could provide substantial justification grounded in the
facts of a particular case for not complying with the 120-day
statutory requirement, the government has advanced no such
particularized justification here. Instead, the agency has offered
unreasonable litigation position would compound the cost of its
unreasonable pre-litigation position.
15
This is the same conclusion reached by the Tenth Circuit
in Al-Maleki, 2009 WL 692612, at *6-7. There the court was faced
with the same relevant facts: USCIS had failed to meet its 120-day
deadline for adjudicating an application; the applicant inquired
about the delay, giving the agency notice of it; the source of the
delay was the name check; after the applicant filed suit, USCIS
asked the FBI to expedite the name check and adjudication was soon
thereafter complete. As the court pointed out, these facts
undermine the agency's contention that it is unable to process
applications in a timely fashion because of the backlog in name
check requests. Id. at *7. Rather, USCIS has simply elected to
ignore delayed applications until a lawsuit is filed. But USCIS's
knowledge that its statutory deadline has passed and its capacity
to address the problem by requesting expedition of the name check
should motivate the agency to act before a suit is filed. Its
decision to expedite requests only if it is sued "is not reasonable
in fact." See id.-64-
only general justifications for the delay, including the importance
of the agency's policy of requiring name checks for security
purposes and the significant backlog of names that the FBI is
processing. These explanations, however, do not justify the
agency's disregard of the clear statutory mandate. Although I also
acknowledge that the agency has valid -- indeed persuasive --
reasons for requiring comprehensive FBI name checks under ordinary
circumstances, that policy determination cannot justify the failure
to comply with a statutory deadline. See, e.g., Rotinsulu v.
Mukasey, 515 F.3d 68, 72 (1st Cir. 2008) ("An agency has an
obligation to abide by its own regulations.").
Despite the agency's plaint to the contrary, USCIS was
not caught in a hopeless bind between the national security
imperatives of name check review and the 120-day statutory and
regulatory deadline. As the facts in this case demonstrate, USCIS
could have addressed the name check delay in a manner consistent
with the applicable laws and regulations, and without sacrificing
national security interests, by doing generally and more promptly
exactly what it did here. Instead of waiting for a lawsuit, the
agency could have bumped applicants "mistakenly" interviewed before
their name checks were completed to the front of the name check
line before the 120-day deadline lapsed, saving the applicants and
the agency the expense of a lawsuit. At the very least, in those
cases where the deadline has already passed and the applicant has
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informed the agency of this fact, USCIS could ask the FBI for
expedited treatment of the name check.16 What the agency surely
cannot do with "substantial justification" is blatantly ignore the
requirements imposed on it by Congress and by itself.
The majority's attempt to invoke an administrative policy
to trump an explicit statutory command turns Chevron deference on
its head. See Stinson v. United States, 508 U.S. 36, 44 (1993)
("Under Chevron, if a statute is unambiguous the statute governs .
. . ." (citations omitted)). In light of the 120-day statutory
directive, the regulatory confirmation of that directive, the
agency's long delay (nearly four times the statutory period in
length), and the absence of any evidence that the government tried
to expedite Aronov's application to comply with the statute until
he sued, the government's conduct toward Aronov can only be
classified as unreasonable and not substantially justified. See
Russell v. Nat'l Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985)
(concluding that the government's position was not substantially
justified because it breached a clear statutory mandate).
Accordingly, I would hold that the government was not substantially
justified in its pre-litigation position.
III.
In order to defend the government's position and avoid
the simple truth of this case, the majority has burdened its
16
See supra notes 14, 15 and accompanying text.
-66-
analysis of the prevailing party issue with undue complexity, and
its analysis of the substantial justification issue with
unwarranted national security concerns. After waiting through a
delay that violated statutory and regulatory deadlines by 440 days,
Aronov invoked his explicit statutory right to petition a district
court to determine his naturalization application or order USCIS to
do so. The lawsuit prompted the agency to complete the name check
that had apparently caused the delay within a few weeks of the
filing of the lawsuit. With that process completed, the parties
asked the court to remand the case to the agency so the
naturalization process could be completed. Invoking the EAJA,
Aronov then successfully sought a modest award of $4,270.94 in
attorney's fees from the district court for the time and trouble he
incurred. When the government appealed that award to us, a
majority of the panel ruled for Aronov.
But Aronov's time and trouble were far from over. There
was the government's petition for en banc review, and now this.
The majority's fierce embrace of the government's opposition to
this modest award is out of all proportion to the stakes. Its
refusal to credit the district court's explanation of its remand
order is unprecedented. Its invocation of national security
concerns to justify the government's handling of Aronov's
application is unjustified. We are left with a holding that is
-67-
contrary to the purpose and the promise of the EAJA. I
respectfully dissent.
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