ALEXANDRE ARONOV, Plaintiff, Appellee, v. JANET NAPOLITANO, ET AL., Defendants, Appellants.
No. 07-1588
United States Court of Appeals For the First Circuit
April 13, 2009
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nancy Gertner, U.S. District Judge]
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
April 13, 2009
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.
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.
Aronov‘s suit, filed on August 28, 2006, was brought under
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.
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
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
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
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.
The purpose of the Act is “to ensure that certain individuals . . . will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved.” Scarborough v. Principi, 541 U.S. 401, 407 (2004) (quoting H.R. Rep. No. 99-120(I), at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 132-33). The EAJA “reduces the disparity in resources between individuals . . . and the federal government.” H.R. Rep. No. 99-120(I), at 4.
Two issues are raised: (1) whether Aronov met the “judicial imprimatur” requirement of the “prevailing party” test; and (2) whether the USCIS has met its burden of showing that it did not act unreasonably.
We review a district court‘s determinations under the EAJA for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 558-59 (1988); Schock v. United States, 254 F.3d 1, 4 (1st Cir. 2001). An error of law is an abuse of discretion. Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003); see also Atl. Fish Spotters Ass‘n v. Daley, 205 F.3d 488, 491 n.2 (1st Cir. 2000). Whether a party is a prevailing party is itself a legal determination subject to de novo review. Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1021 (Fed. Cir. 2005); Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002). The district court‘s award rests on errors of law.
The EAJA is a departure from the traditional “American rule” that parties must ordinarily bear their own attorneys’ fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc‘y, 421 U.S. 240, 247 (1975). Importantly, the EAJA is not simply a fee shifting statute. The EAJA is also a waiver by the government of its sovereign immunity and so must be construed strictly in favor of the government. Ardestani v. INS, 502 U.S. 129, 137 (1991). Whatever flexibility there may be in interpreting fee shifting statutes involving awards against parties other than the United States, such flexibility does not exist as to EAJA applications. See Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (“[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” (quoting Soriano v. United States, 352 U.S. 270, 276 (1957))).
A. The Judicial Imprimatur Standard Under the Prevailing Party Requirement of the EAJA
We hold as a matter of law that Aronov is not a prevailing party under the order entered by the district court.
The Supreme Court set the general standards for defining the term “prevailing party” in federal attorneys’ fees shifting statutes in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), a case
“[T]he term ‘prevailing party’ [is] a legal term of art.” Buckhannon, 532 U.S. at 603. To be a prevailing party, a party must show both a “material alteration of the legal relationship of the parties,”
Both terms are illuminated by the potential meanings Buckhannon rejected: the Supreme Court held that mere success in accomplishing a party‘s objectives is insufficient to be a prevailing party for a fee award. Buckhannon, 532 U.S. at 606. The Court rejected the “catalyst” theory which had been accepted by many circuits, including this one.5 The Court noted that use of
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 a 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.”
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
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 v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994)
These factors from Buckhannon are themselves, not surprisingly, contained in the law of consent decrees. A consent decree “embodies an agreement of the parties,” that they “desire and expect will be reflected in, and be enforceable as, a judicial decree.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992)); see also Ricci v. Patrick, 544 F.3d 8, 17 (1st Cir. 2008), cert. denied, 129 S. Ct. 1907 (2009). As the Fourth Circuit noted in Smyth:
A consent decree, because it is entered as an order of the court, receives court approval and is subject to the oversight attendant to the court‘s authority to enforce its orders, characteristics not typical of settlement agreements. [Buckhannon]‘s admonition that consent decrees may satisfy the prevailing party standard while private settlements ought not be so construed is thus consistent with the general purposes and effects of the two forms of resolution of disputes.
Smyth, 282 F.3d at 281. Court approval of a consent decree must involve some appraisal of the merits. See
Further, an obligation to comply and the provision of judicial oversight to enforce that obligation are the sine qua non for a consent decree. See Smyth, 282 F.3d at 279-81; see also Roberson, 346 F.3d at 82-83; Am. Disability Ass‘n, 289 F.3d at 1320. While a consent decree begins as a settlement, it is one that “includes an injunction, or some other form of specific relief,” which may ultimately be enforceable by contempt. C.A. Wright & M.K. Kane, Law of Federal Courts § 98, at 702 n.2 (6th ed. 2002). This means enforcement through an action for breach of
“The parties to a consent decree expect and achieve a continuing basis of jurisdiction to enforce the terms of the resolution of their case in the court entering the order.” Smyth, 282 F.3d at 280. A private settlement agreement, by contrast, does not require the same level of judicial oversight.
Another characteristic of the judicially approved obligations in a consent decree is that a party seeking to modify a consent decree must meet a significant burden to demonstrate that circumstances have changed to a degree that justifies a modification. See generally Rufo, 502 U.S. at 378-83; see also
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
for future enforcement typical of consent decrees. See Kokkonen, 511 U.S. at 381; Saccoccia, 433 F.3d at 28. The order also did not resolve a dispute between the parties, it merely returned jurisdiction to the agency to allow the parties to carry out their agreement.13 Indeed, the order would not create prevailing party
status under the tests adopted by any of the circuits. See, e.g., Davy, 456 F.3d at 165-66; Rice Servs., 405 F.3d at 1027; T.D., 349 F.3d at 478; Roberson, 346 F.3d at 81; Truesdell, 290 F.3d at 165; Am. Disability Ass‘n, 289 F.3d at 1320-21; Smyth, 282 F.3d at 276.
Aronov‘s argument is also inconsistent with Smith, which held that the fact that the defendant has voluntarily agreed to change its behavior does not lead to prevailing party status for the plaintiff. A plaintiff does not become a prevailing party if the court merely recognizes what the government has voluntarily
Aronov makes a separate argument that a remand to the agency was necessary so that citizenship could be granted, and that this suffices to make him a prevailing party. We need not resolve the question of whether the agency could have acted without the remand,14 as it does not matter to our resolution of the judicial imprimatur issue. The order remanding to the agency is alone not enough to establish the needed imprimatur. See, e.g., Rice Servs., 405 F.3d at 1025 (under the EAJA, securing a remand order alone is insufficient; the claimant must secure relief on the merits); see also Envtl. Def. Fund, Inc. v. Reilly, 1 F.3d 1254, 1257-58 (D.C. Cir. 1993) (same, applying Resource Conservation and Recovery Act). Aronov‘s argument is simply an effort to revive the “catalyst theory,” which the Supreme Court has rejected.
B. Substantial Justification
Even if the court order in this case had the attributes of a consent decree, the remaining condition for an EAJA award has not been met. We also hold as a matter of law that the government
has met its burden to show its pre-litigation actions or inactions15 which led to this suit were substantially justified.An action is “substantially justified” if “it has a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n.2. The government‘s conduct must be “justified to a degree that could satisfy a reasonable person.” Id. at 565; see also Schock, 254 F.3d at 5. The government need only have “a reasonable basis both in law and in fact for its position.” De Allende v. Baker, 891 F.2d 7, 12 (1st Cir. 1989); see also United States v. Yoffe, 775 F.2d 447, 449 (1st Cir. 1985).
Importantly, for EAJA purposes, the position of a government agency can be substantially justified even if a court ultimately determines the agency‘s reading of the law was not correct. Pierce, 487 U.S. at 566 n.2 (“[A] position can be justified even though it is not correct, and we believe it can be substantially . . . justified if a reasonable person could think it correct.“). The government‘s position as to what the law requires may be substantially justified even if its interpretation of its legal obligations is not ultimately affirmed by a court. Schock, 254 F.3d at 5. In De Allende, we held that the district court abused its discretion in awarding attorneys’ fees under the EAJA when the government was “at least reasonable” in denying a visa,
And of course, if the agency reasonably believes the action or inaction is required by law, then, by definition it cannot be the basis for an award of EAJA fees. See Dantran, Inc. v. U.S. Dep‘t of Labor, 246 F.3d 36, 41 (1st Cir. 2001) (the government‘s pre-litigation conduct of initiating a debarment procedure was substantially justified because it was required to do so by statute).
Aronov‘s argument rests on a fundamental misapprehension of what substantially justified means. His argument is addressed to why he thinks the agency is not legally “right” in its position and not to whether the USCIS position was substantially justified, a different question. The test is whether a reasonable person could think the agency position is correct. Pierce, 487 U.S. at 566 n.2. While we think the agency was “right” in how it handled the matter, the substantial justification analysis does not hinge
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
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,
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,
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
Congress chose not to prohibit the use of the FBI name check, but rather provided funding to expedite the process USCIS had chosen. The agency‘s, and the FBI‘s, choices to use name checks were clearly within their legal authority and were reasonable. Principles of administrative law require that courts defer to reasonable interpretations by an agency on matters committed to the agency‘s expertise by Congress. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Global NAPs, Inc. v. Verizon New Eng., Inc., 505 F.3d 43, 47 (1st Cir. 2007). Agencies are also entitled to deference with respect to policy determinations. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), overruled on other
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.”
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
Aronov replies that even if the statute does not set a deadline of 120 days, the agency by regulation has. See
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
Independently, the choice by USCIS to favor national security in requiring a full check of the background of a citizenship applicant over a self-imposed 120-day deadline, regardless of whether the interview was prematurely granted here, cannot be unreasonable. As the USCIS has stated:
Although [FBI name checks] may require a more lengthy processing time, USCIS believes that performing them is essential to identifying national security and public safety concerns that would not have been uncovered by other means. This is particularly true given that in[] a few cases, the information obtained from the FBI through this process has reflected very significant issues and risks. FBI name checks disclose information to USCIS that is otherwise not available. . . . USCIS is committed to effective background checks, and thus is committed to the FBI name check.
USCIS, Response to the Citizenship and Immigration Services Ombudsman‘s 2006 Report, at 10, available at http://www.dhs.gov/xlibrary/assets/USCIS-Response-Ombudsman-06-Report-May-2007.pdf. It is not unreasonable for the agency to require greater certainty when deciding whether to grant citizenship. See Alexander v. INS, 74 F.3d 367, 370 (1st Cir. 1996) (“[T]he right in question -- American citizenship -- is one of the most precious imaginable.“).
Indeed, the importance of the greater certainty that the name check provides is highlighted by the agency‘s choice in 2007
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
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
III.
The order awarding attorneys’ fees is reversed and the application for fees is ordered dismissed with prejudice.
-Dissenting Opinions Follow-
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
On the issue of whether Aronov was a prevailing party, the majority ignores our sensible precedent that we defer to a district court on the meaning of its own orders. See New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 39 (1st Cir. 2002) (affirming a denial of attorney‘s fees against Massport). The majority then proceeds to resolve the issue without itself bothering to decide the jurisdictional effect of the district court‘s order. In other words, the majority adopts the government‘s position on imprimatur without deciding whether USCIS was free to act without the district court‘s explicit approval of the parties’ proposed course of action. The majority concludes that even assuming the district court‘s order constituted a transfer of its exclusive jurisdiction back to USCIS, the district court‘s decision was not a consideration of the merits. This conclusion replaces the district court‘s own explanation of its order with an assumption that the district court exercised its
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
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.
-Dissenting Opinion Follows-
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.
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
Pursuant to
8 U.S.C. § 1447(b) , the parties in this action, plaintiff . . . and defendants Michael Chertoff, Secretary of the United States Department of Homeland Security, et al., hereby jointly move this Honorable Court to remand this matter to the USCIS, so that [it] can grant plaintiff‘s application for naturalization, and schedule plaintiff‘s oath ceremony for no later than November 8, 2006. In support of this motion, the parties state as follows:
On or about August 28, 2006, plaintiff Alexandre Aronov filed this action. - 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.
- The governing statute,
8 U.S.C. § 1447(b) , provides that, in cases in which the agency has failed to render a decision on an application for naturalization within 120 days of the examination of the applicant, the applicant may file suit in district court requesting to adjudicate the application and “[s]uch court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”Wherefore, with good cause having been shown, the parties respectfully request that this Court remand this matter to USCIS so that it can grant plaintiff‘s application for naturalization and schedule plaintiff for an oath ceremony for no later than November 8, 2006.
On October 12, 2006, the court entered an electronic order granting the motion and the remand. The docket text for the remand order states: “Judge Nancy Gertner: Electronic ORDER entered granting 3 Joint Motion to Remand to US Citizenship and Immigration Services.”1
Chertoff, No. 06-11526, 2007 U.S. Dist. LEXIS 40455, at *5 (D. Mass. Jan. 30, 2007) (emphasis in original). A timely appeal by the government followed. A panel of the court affirmed the award. Aronov v. Chertoff, 536 F.3d 30 (1st Cir. 2008). Subsequently, a majority of the en banc court granted the government‘s petition for rehearing en banc, vacating the panel opinion.
II.
Although parties are ordinarily required, win or lose, to bear their own attorney‘s fees, see, e.g., Alyeska Pipeline Serv. Co. v. Wilderness Soc‘y, 421 U.S. 240, 247 (1975), a number of exceptions to this default rule have been adopted by statute. One such exception, the
The court reviews the district court‘s decision to grant or deny a fee application under the
A. Prevailing Party
The Supreme Court has long held that a plaintiff who obtains a “settlement agreement[] enforced through a consent decree” is a “prevailing party.” See Buckhannon, 532 U.S. at 604 (citing Maher v. Gagne, 448 U.S. 122 (1980)). In cases following Buckhannon, most courts have also permitted fees where the plaintiff obtains an order equivalent to a consent decree. See Roberson v. Giuliani, 346 F.3d 75, 81-82 (2d Cir. 2003) (noting the agreement of a majority of appellate courts). For example, the Fourth Circuit held that orders lacking the title “consent decree” support an award if they are “functionally a consent decree,” Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 281 (4th Cir. 2002), a formulation we have also employed. See Smith v. Fitchburg Pub. Schs., 401 F.3d 16, 24 (1st Cir. 2005); see also Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1025 (Fed. Cir. 2005) (court action “equivalent” to a consent decree or judgment on the merits); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003) (settlements “sufficiently analogous” to consent decrees).
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
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.
This is not the catalyst scenario of Buckhannon. There, the plaintiff alleged that West Virginia law conflicted with federal law, 532 U.S. at 601, and the West Virginia legislature retained its authority throughout the litigation to “unilateral[ly]” amend its laws. See Smyth, 282 F.3d at 278 (using this expression). It exercised that authority and rendered the suit moot, after which the government moved to dismiss the case. Here USCIS could do no such thing. It lacked the authority to “unilaterally” provide Aronov the relief he requested. The district court‘s order was necessary to return authority to the agency.4
A district court is in the best position to explain the meaning of its own order. We defer routinely to the district court‘s view of the significance of its remand order. See Kinton, 284 F.3d at 30 (“Clearly, the district court is in the best position to determine whether its statements . . . should be considered as the functional equivalent of a judicial order within the meaning of Buckhannon.“); Harvey v. Johanns, 494 F.3d 237, 242 (1st Cir. 2007) (“We must, of course, accord deference to the district court‘s interpretation of the wording of its own order.“); see also Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987) (“[U]ncertainty as to the meaning and intendment of a district court order can sometimes best be dispelled by deference to the views of the writing judge.“).
Here, the majority dismisses the district court‘s assessment of its October 12 remand order in its subsequent decision on attorney‘s fees as a “post-hoc explanation for a prior order.” If the majority means that the district court‘s explanation is meaningless because the court could not incorporate by reference the terms of the joint motion into the remand order as a matter of law, then it is incorrect. Whether a court has incorporated an agreement into an order depends on context. In F.A.C., Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 449 F.3d 185 (1st Cir. 2006), we held that an oral settlement agreement between two parties to a complex RICO dispute was not incorporated into a dismissal order that referred to it. Id. at 190. However, we expressly limited our rejection of the incorporation claim to “the present case,” noting, “[h]ard and fast rules may be unwise because of variations in language and context.”5 Id.
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
2. The court satisfied the requirements for entering a consent decree
The majority contends that a district court must “appraise,” “weigh” or “evaluate” the merits of a case in relation to the relief provided by the consent decree. The requirements for entering a consent decree were recently summarized by the Supreme Court in Frew ex rel. Frew v. Hawkins:
Consent decrees entered in federal court must be directed to protecting federal interests. In [Local No. 93], we observed that a federal consent decree must spring from, and serve to resolve, a dispute within the court‘s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.
540 U.S. 431, 437 (2004) (citing Local No. 93, 478 U.S. at 525 (collecting cases)); see also Conservation Law Found. of New Eng., Inc. v. Franklin, 989 F.2d 54, 59 (1st Cir. 1993) (listing same requirements). We have also held that district courts must determine that a proposed consent decree is fair, adequate and reasonable before entering it. For example, in Conservation Law Foundation, we wrote, “[d]istrict courts must review a consent decree to ensure that it is ‘fair, adequate, and reasonable; that the proposed decree will not violate the Constitution, a statute or other authority; [and] that it is consistent with the objectives of Congress . . . .‘” 989 F.2d at 58 (quoting Durrett v. Housing Auth. of Providence, 896 F.2d 600, 604 (1st Cir. 1990)); see also United States v. City of Miami, 664 F.2d 435, 441 (Former 5th Cir. 1981).
We agree that it would be difficult for a district court to determine the fairness, reasonableness and adequacy of a proposed agreement without making some evaluation of the merits of the case in relation to the relief provided by the consent decree. However, “how deeply the judge must inquire, what factors he must take into account, and what weight he should give the settling parties’ desires will vary with the circumstances.” Donovan v. Robbins, 752 F.22 1170, 1177 (7th Cir. 1984); see also United States v. Charles George Trucking, Inc., 34 F.3d 1081, 1088 (1st Cir. 1994) (holding that the substance of the fairness inquiry will depend on the context). Moreover, neither Frew nor Conservation Law Foundation require that a judge explicitly state, in the court‘s order or elsewhere on the record, that she has determined that a proposed agreement meets these requirements. See Frew, 540 U.S. at 437; Conservation Law Found., 989 F.2d at 58 (holding that a court must “review” a proposed consent decree). As a reviewing
the question is whether the record contains adequate facts to support the decision of the district court to approve the proposed compromise. As to this, as the Supreme Court has observed, “a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based.”
United States v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 280 (1st Cir. 2000) (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 437 (1968)).
Here, the record “contain[s] adequate facts to support the decision of the trial court to approve the proposed compromise[].” TMT Trailer Ferry, 390 U.S. at 437. Again, the context is simple. There is one plaintiff, one government agency, and a specific form of relief that is being sought. The judge had the benefit of both the complaint and the parties’ joint motion for remand. The complaint identified the factual and legal bases for providing relief. The joint motion isolated the relevant facts and law, and asserted “good cause” for remanding to the agency for naturalization. From these documents, the district court could
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
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
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.
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,
Relying on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984), the majority asserts that the court must defer to USCIS‘s decision to employ the NNCP check because in these statutes Congress has committed decision-making authority to the agency on these issues. The agency has concluded, it says, that the comprehensive FBI name checks are “essential” to the background investigations. Although a small percentage of name checks take a considerable amount of time to complete, isolated delays should not prevent the government from maintaining the name check requirement as its policy.
The government‘s 440-day delay in acting on Aronov‘s naturalization application exceeded the deadline imposed by
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,
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
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
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
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
The majority‘s attempt to invoke an administrative policy to trump an explicit statutory command turns Chevron deference on its head. See Stinson v. United States, 508 U.S. 36, 44 (1993) (“Under Chevron, if a statute is unambiguous the statute governs . . . .” (citations omitted)). In light of the 120-day statutory directive, the regulatory confirmation of that directive, the agency‘s long delay (nearly four times the statutory period in length), and the absence of any evidence that the government tried to expedite Aronov‘s application to comply with the statute until he sued, the government‘s conduct toward Aronov can only be classified as unreasonable and not substantially justified. See Russell v. Nat‘l Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985) (concluding that the government‘s position was not substantially justified because it breached a clear statutory mandate). Accordingly, I would hold that the government was not substantially justified in its pre-litigation position.
III.
In order to defend the government‘s position and avoid the simple truth of this case, the majority has burdened its
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
Notes
The
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.
Elsewhere parties have litigated the question of whether the court maintains exclusive jurisdiction or, alternatively, concurrent jurisdiction with the USCIS. Most courts have held that the district court has exclusive jurisdiction over the application until it has acted pursuant to the statute. See, e.g., Etape, 497 F.3d at 384-85 (holding that
Contrary to the majority‘s suggestion, the fact that USCIS acted voluntarily in coming to an agreement with Aronov does not make Aronov ineligible for fees. Voluntary conduct by a defendant is a necessary part of any consent decree process. Indeed, as the Supreme Court has said, “the voluntary nature of a consent decree is its most fundamental characteristic.” Local No. 93, Int‘l Ass‘n of Firefighters v. City of Cleveland, 478 U.S. 501, 521-22 (1986). Yet a plaintiff who obtains a consent decree is eligible for fees. Maher, 448 U.S. at 129-30. Similarly, awarding Aronov fees because the remand order is functionally equivalent to a consent decree would not conflict with our holding in Smith. See Smith, 401 F.3d at 26-27 (noting the defendant‘s voluntary conduct). The Smith panel expressly set aside as waived the question of whether the order there was functionally equivalent to a consent decree. Id. at 24.
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 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.”
There is no legal support for the majority‘s contention that a defendant must file an answer or “raise defenses” before a consent decree (or its equivalent) may be entered by a federal court. Consent decrees may be entered at any stage of litigation, and are regularly entered before a defendant has filed an answer. See Maimon Schwarzschild, Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 Duke L.J. 887, 913 (noting that parties often negotiate consent decrees before the complaint is filed, and that during the period of study nearly one-third of Title VII consent decrees involving the Department of Justice and public employers were entered the day the complaint was filed). Here, in contrast, both parties filed documents with the court. The joint character of the motion for remand provided the court a reasonable basis for evaluating the merits of the case.
The majority‘s statement that “it is also firmly the law that there must be a clear basis within the order . . . for both the court‘s continuing jurisdiction and its power to enforce an agreement between the parties” demonstrates its refusal to accept Smith, which states that incorporation of a settlement agreement in an order is sufficient for purposes of retaining jurisdiction to enforce that agreement. Smith, 401 F.3d at 24. We have also said that “hard and fast rules may be unwise [on the question of incorporation] because of variations in language and context.” F.A.C., 449 F.3d at 190; see supra section II(A)(1). The only authority the majority cites in support of its view, Kokkonen, does not support it. Indeed, the language “clear basis within the order” appears nowhere in Kokkonen. See Kokkonen, 511 U.S. at 379-82. In fact, as several courts have noted, Kokkonen is silent on whether reference suffices to incorporate an agreement for purposes of retaining jurisdiction. See, e.g., Hospitality House, Inc. v. Gilbert, 298 F.3d 424, 431-32 (5th Cir. 2002) (“[T]he Kokkonen Court did not explicitly hold that a district court‘s order of dismissal must contain an express statement incorporating a settlement agreement in order to vest the court with ancillary jurisdiction . . . .“); Lucille v. City of Chicago, 31 F.3d 546, 549 (7th Cir. 1994) (Cudahy, J., concurring).
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
The Tenth Circuit‘s recent decision in Al-Maleki, 2009 WL 692612, at *2-3, affirmed an award of attorney‘s fees under
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,
In addition to
See Brief for American Immigration Lawyers Association, as Amicus Curiae in Support of Plaintiff, at 6-7.
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.
In citing these national security interests, the majority accepts uncritically the relevance of the government‘s argument that “background checks are critical to insuring public safety and national security.” I do not dispute this proposition, which is irrelevant to the disposition of the case. The majority also accepts uncritically the government‘s assertion that awarding Aronov attorney‘s fees would “create an enormous incentive for individuals frustrated with delays in the naturalization process to file mandamus lawsuits.” It is the agency itself that gives applicants an incentive to file suit by choosing to request expedition of name checks if an applicant files suit. The agency could remove this incentive by requesting expedition before a suit is filed, as the record shows it could. Finally, the majority also endorses the government‘s suggestion that awarding attorney‘s fees will create a “disincentive for the agency to settle these cases.” Yet the government already pursues such settlements in jurisdictions where it faces the risk of having to pay attorney‘s fees. See, e.g., Kats v. Frazier, No. Civ. 07-479, 2008 WL 2277598 (D. Minn. May 30, 2008); Ghanim v. Mukasey, 545 F. Supp. 2d 1146 (W.D. Wash. 2008); Phompanya v. Mukasey, No. C07-597MJP, 2008 WL 538981 (W.D. Wash. Feb 25, 2008); Berishev v. Chertoff, 486 F. Supp. 2d 202 (D. Mass. 2007). The agency‘s decision to seek an early compromise despite facing a risk of paying attorney‘s fees is easy to understand. By refusing to settle the agency would risk the payment of substantially higher
This is the same conclusion reached by the Tenth Circuit in Al-Maleki, 2009 WL 692612, at *6-7. There the court was faced with the same relevant facts: USCIS had failed to meet its 120-day deadline for adjudicating an application; the applicant inquired about the delay, giving the agency notice of it; the source of the delay was the name check; after the applicant filed suit, USCIS asked the FBI to expedite the name check and adjudication was soon thereafter complete. As the court pointed out, these facts undermine the agency‘s contention that it is unable to process applications in a timely fashion because of the backlog in name check requests. Id. at *7. Rather, USCIS has simply elected to ignore delayed applications until a lawsuit is filed. But USCIS‘s knowledge that its statutory deadline has passed and its capacity to address the problem by requesting expedition of the name check should motivate the agency to act before a suit is filed. Its decision to expedite requests only if it is sued “is not reasonable in fact.” See id.
See supra notes 14, 15 and accompanying text.