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

-2- 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"),

(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.,

(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.

-3- 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.

-4- I.

Aronov's suit, filed on August 28, 2006, was brought

under

(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.

(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.

-5- § 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,

(2007) ("In administrative law . . . there is a harmless error rule." (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin.,

(D.C. Cir. 2004))).

-6- 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

(d)(1)(B), (d)(1)(D)(2)(G); see also Melkonyan v. Sullivan,

(1991).

-7- 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.

(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,

(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,

(1988); Schock v. United States,

(1st Cir.

2001). An error of law is an abuse of discretion. Rosario-Urdaz

v. Rivera-Hernandez,

(1st Cir. 2003); see also

Atl. Fish Spotters Ass'n v. Daley,

, 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.

-8- United States,

(Fed. Cir. 2005); Smyth ex rel.

Smyth v. Rivero,

(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,

(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,

(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,

(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,

(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,

(2001), a case

-9- 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,

n.8 (quoting

Doe v. Boston Pub. Sch.,

(1st Cir. 2004)) (internal

quotation marks omitted); accord Ma v. Chertoff,

(2d Cir. 2008) (per curiam) (collecting cases).

"[T]he term 'prevailing party' [is] a legal term of art."

Buckhannon,

. To be a prevailing party, a party

must show both a "material alteration of the legal relationship of

the parties,"

at 604 (quoting Tex. State Teachers Ass'n v.

Garland Indep. Sch. Dist.,

(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,

.

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,

(c)(2) and the Americans with Disabilities Act of 1990 ("ADA"),

. 5 Buckhannon thus overruled this circuit's prior acceptance of the catalyst theory in Guglietti v. Secretary of Health & Human Services,

(1st Cir. 1990) (applying EAJA), followed in

-10- 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,

(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,

. We reject Aronov's arguments that the legislative history supports a broader approach.

-11- 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."

.

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,

(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.,

(EAJA); T.D. v. LaGrange Sch. Dist. No. 102,

(7th Cir. 2003) (Individuals with Disabilities Education Act); Roberson v. Giuliani,

(2d Cir. 2003) (

); Truesdell v. Phila. Hous. Auth.,

, 165 (3d Cir. 2002) (same); Am. Disability Ass'n, Inc. v. Chmielarz,

(11th Cir. 2002) (ADA); Smyth,

(§ 1988).

-12- 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.

-13- v. Guardian Life Insurance Co. of America,

(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,

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,

(2004)

(quoting Rufo v. Inmates of Suffolk County Jail,

(1992)); see also Ricci v. Patrick,

(1st Cir. 2008),

cert. denied, ___ S.Ct. ___,

(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,

. Court approval of a consent decree must

involve some appraisal of the merits. See

. By

-14- contrast, a private settlement does not, ordinarily, receive court

approval.

. 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.,

("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,

(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,

; see also

Roberson,

; Am. Disability Ass'n,

. 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,

(1986), must, therefore, go beyond contractual obligations.

-15- 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,

(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,

. 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,

; 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,

(noting that the government had created a $60 million settlement fund and that a California federal court had taken responsibility for administering the settlement).

-16- 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,

(1st Cir. 2005) (emphasis in original); see also

("[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.,

(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,

(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

-17- for future enforcement typical of consent decrees. See Kokkonen,

; Saccoccia,

. 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.,

, 192 (1st Cir. 2006). Nor was this an issue of

-18- status under the tests adopted by any of the circuits. See, e.g.,

Davy,

; Rice Servs.,

; T.D.,

; Roberson,

; Truesdell,

;

Am. Disability Ass'n,

; Smyth,

.

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,

(1st Cir. 2002). Nor was there any ambiguity in its October 12 order. See Harvey v. Johanns,

(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,

; Saccoccia,

. 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,

("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,

(emphasis added))); Hospitality House, Inc. v. Gilbert,

(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,

.

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.,

(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,

, 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,

(4th Cir. 2007) (holding that a district court has exclusive jurisdiction once a § 1447(b) suit is filed), and United States v. Hovsepian,

(9th Cir. 2004) (en banc) (same), with Xie v. Mukasey,

(E.D. Wis. 2008) (holding that the court and USCIS have concurrent jurisdiction), and Bustamante v. Chertoff,

(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,

n.2.

The government's conduct must be "justified to a degree that could

satisfy a reasonable person."

; see also Schock,

. The government need only have "a reasonable basis both

in law and in fact for its position." De Allende v. Baker,

(1st Cir. 1989); see also United States v. Yoffe,

(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,

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,

. 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,

; see also Li

v. Keisler,

(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,

(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,

(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,

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,

(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,

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

.

-25- agency "has the information it needs to carry out its mission."18

Consolidated Appropriations Act of 2008,

div.

E, tit. IV,

, 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.,

(1984); Global NAPs, Inc. v. Verizon New Eng., Inc.,

,

47 (1st Cir. 2007). Agencies are also entitled to deference with

respect to policy determinations. Citizens to Preserve Overton

Park, Inc. v. Volpe,

(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,

(1977); Global NAPs,

; Associated Fisheries of Me., Inc. v. Daley,

(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."

(b). The agency also supports its reading with a reference

to the Congressional history. See 135 Cong. Rec. H4539, H4542-43,

(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.,

(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

(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

§ 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,

(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,

(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."

(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,

, 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,

(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,

(2008); Sharari v. Gonzales,

(1st Cir. 2005) (explaining limitation on judicial review of BIA determinations regarding timeliness of asylum applications); Zhang v. INS,

(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,

(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,

(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,

(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,

(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.

(b). After Aronov was

interviewed, federal law required USCIS to adjudicate his

application within 120 days. See

(b);

(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

(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

(b). In full,

the joint motion read:

Pursuant to

(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,

(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,

(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.

(d)(1)(A).

-41- Chertoff, No. 06-11526,

, 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,

(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,

(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.

(d)(1)(A); see also Schock v. United

States,

(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,

.

The court reviews the district court's decision to grant

or deny a fee application under the EAJA for abuse of discretion,

"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,

(1st Cir. 2002) (quoting Gay

Officers Action League v. Puerto Rico,

(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."

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,

(citing Maher v. Gagne,

(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,

(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,

(4th Cir. 2002), a

formulation we have also employed. See Smith v. Fitchburg Pub.

Schs.,

(1st Cir. 2005); see also Rice Servs., Ltd.

v. United States,

(Fed. Cir. 2005) (court

action "equivalent" to a consent decree or judgment on the merits);

T.D. v. LaGrange Sch. Dist. No. 102,

(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,

, 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.

(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,

, 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

(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,

(holding that section 1447(b) vests the district court with exclusive jurisdiction over a naturalization application); United States v. Hovsepian,

(9th Cir. 2004) (en banc) (same). But see, e.g., Bustamante v. Chertoff,

(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,

, and the West Virginia legislature

retained its authority throughout the litigation to

"unilateral[ly]" amend its laws. See Smyth,

(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,

(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]."

(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,

(1986). Yet a plaintiff who obtains a consent decree is eligible for fees. Maher,

. 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,

, 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

.

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,

("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,

, 242

Aronov fees because the remand order is functionally equivalent to a consent decree would not conflict with our holding in Smith. See Smith,

(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.

.

-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,

(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,

(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.

(2004) (citing Local No. 93,

(collecting cases)); see also Conservation Law Found. of New Eng.,

Inc. v. Franklin,

(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 . . . .'"

(quoting Durrett v. Housing

Auth. of Providence,

(1st Cir. 1990)); see also

United States v. City of Miami,

(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,

(7th Cir. 1984); see also United

States v. Charles George Trucking, Inc.,

(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,

; Conservation Law Found.,

(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,

(1st Cir. 2000) (quoting Protective Comm. for Indep.

Stockholders of TMT Trailer Ferry, Inc. v. Anderson,

(1968)).

Here, the record "contain[s] adequate facts to support

the decision of the trial court to approve the proposed

compromise[]." TMT Trailer Ferry,

. 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,

, 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,

("'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,

)); see also Kokkonen v. Guardian Life Ins. Co. of Am.,

(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,

. 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,

- 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,

(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,

(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,

(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,

, 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,

, 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,

(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,

(1988); see also Schock,

; Dantran, Inc. v. U.S. Dep't of Labor,

(1st Cir. 2001). Thus, the key question is whether the

government's position has "a reasonable basis in law and fact."

Pierce,

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,

(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,

Stat. 2440, 2448-49 (1997) (

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,

Stat. 1844 (2007).

Relying on Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

(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.

-58- 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,

(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,

; see also Hovsepian,

("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,

(treating statute as imposing a

-59- deadline); Hovsepian,

;

(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,

(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,

(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

-60- 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,

(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

(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,

(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,

(D.C. Cir. 1984)); Caswell v. Califano,

(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

(a) provide such guidance. See Sze v. INS, No. C- 97-0569 SC,

, 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.").

-61- 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.

-62- 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,

(D. Minn. May 30, 2008); Ghanim v. Mukasey,

(W.D. Wash. 2008); Phompanya v. Mukasey, No. C07-597MJP,

(W.D. Wash. Feb 25, 2008); Berishev v. Chertoff,

(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

-63- 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,

. 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,

(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

-65- 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,

(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.,

(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.

-68-