Cody v. CaterisanoCody v. Caterisano
Affirmed by published opinion. Senior Judge BALDOCK wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.
OPINION
Petitioner Andrew Peter Cody asks us to reverse the district court’s denial of his petition for attorneys’ fees under the Equal Access to Justice Act,
I.
The facts in this case are undisputed. Petitioner, an Irish national, was nominatеd by the Republic of Ireland to attend the United States Naval Academy (“the Academy”) in 2005. A few days after nominating him, the Irish government indicated it was unable to fund Petitioner’s attendance at the Academy. Petitioner then secured private funding and attended the Academy. Because Ireland did not fund his attendance, Petitioner had no obligation to serve in the Armed Forces of the Republic of Ireland after graduating from the Academy. Petitioner’s situation is, apparently, unique. It seems аll other foreign nationals who attend or have attended the Academy are obligated to return and serve in the armed forces of their home countries.
See
By all accounts, Petitioner was a model midshipman who served honorably and re
Any person who, while an alien or a noncitizen national of the United States, has served honorably ... in an active-duty status in the ... naval forces of the United States ... during any ... period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force ... may be naturalized as provided in this section if (1) at the time of enlistment ... such person shall have been in the United States----The executive department under which such person served shall determine whether persons have served honorably in an active-duty stаtus.
As proof of his eligibility under Section 329, Petitioner executed a Form N-426. On this form, Assistant Registrar Barbara S. Meeks certified that Petitioner entered active duty at the Academy on June 25, 2005. Joint Apрendix (J.A.) at 19-20. In April 2008, United States Citizenship and Immigration Services (USCIS) requested another Form N-426, explaining that the one initially submitted failed to state whether Petitioner was serving honorably. J.A. at 95. Accordingly, Meeks promptly completed another Form N-426, certifying that Petitioner was serving honorably. J.A. at 134-135.
Petitioner appeared for his naturalization exam in August 2008. Though he passed the tests for English and United States history and government, Petitioner was told a decision could not yet be made about his application. J.A. at 119. In December 2008, USCIS issued a notice of continuance and requested additional documentation confirming Petitioner’s active duty status. In January 2009, Petitioner provided his military service contract. This contract, countersigned by the Navy, evidenced Petitioner’s commitment to serve as a commissioned naval officer upon graduation. Petitioner also provided a letter from Captain C.N. Morin, Deputy Assistant Judge Advocate General, indicating his office’s legal oрinion that “attendance at the U.S. Naval Academy constitutes ‘active duty’ service” and “the N-426 certification of ‘active duty’ status is conclusive evidence of such service.” J.A. at 108.
With no action on his application forthcoming, in March 2009, Petitioner filed the underlying immigration action against Defendants Richard Caterisano, Michael Aytes, Janet Napolitano, Eric H. Holder, Jr., and Rod J. Rosenstein (collectively “the Government”) pursuant to
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 jurisdictionover the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
Shortly after the complaint was filed, the Government moved to remand the action to USCIS. Petitioner moved for summary judgment. Two days before the Government filed its cross-motion for summary judgment, it obtained another Form N-426. This form, certified by Captain K.L. Fischer-Anderson, Staff Judge Advocate to the Superintendent of the Academy, stated: “Applicant nеver entered onto active duty with U.S. Navy.” J.A. at 250. The Government also included Fischer-Anderson’s affidavit stating that Meeks committed an administrative error when she certified that Petitioner had served on active duty based on his attendance at the Academy. J.A. at 247. In the affidavit, Fischer-Anderson also stated: “[T]he USNA hereby rescinds and nullifies the previously-signed Form N-426.” J.A. at 247-48.
The Government contended the later Form N-426 was controlling on the question of Petitioner’s active duty status, but the court disagreed and concluded that because the Navy issued conflicting Forms N-426, it would make an independent determination of Petitioner’s active duty status. Despite the Government’s concerns that certifying Petitioner as serving on active duty at the Academy would create a precedent applicable to other foreign national midshipmen, the district court proceeded to evaluate Petitioner’s status. The court reasoned that Petitioner “has done everything required of midshipmen whо are United States citizens and has served honorably ...; he has received certifications, other letters of support, and a legal opinion documenting his active-duty status”; and he has “been ‘constructively inducted’ into active-duty in the Navy based on his rank of ‘midshipman’ and his performing the duties of a service member.” J.A. at 391. The court rejected the Government’s contention that Petitioner was never inducted into the Navy because he took the Oath of Compliance administerеd to foreign nationals rather than the Oath of Office, explaining it did not think the form of oath was critical and declining to address the effect of either oath. J.A. at 391 n. 4. The district court concluded Petitioner was eligible for naturalization, ordered Petitioner to appear before it to take his oath of allegiance, and ordered USCIS to issue a Form N-550 Certificate of Citizenship to Petitioner. J.A. at 394-96. The Government did not appeal.
Petitioner then moved for attorneys’ fees under the Equal Access to Justice Act,
[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.
Without waiting for a response from the Government, the district court denied Petitioner’s motion for EAJA fees. In a three-page order, the court noted that Petitioner had prevailed and requested a reasonable, perhaps even low, fee but concluded:
[T]he instant case presents a unique, unlikely to be repeated, set of circumstances. The Court does not need tо require government’s counsel to file a response to the instant motion to establish what was made clear in the Court’s deliberations. There were reasonable arguments on both sides of outcome determinative issues. The court held for Petitioner but recognizes that other judges could reasonably disagree with its decision.
J.A. at 442 (internal quotations omitted). Petitioner appealed this order, arguing the Government’s position was not substantially justified and the district court failed to sufficiently explain its reasoning in denying Petitioner’s request for EAJA fees.
II.
We first consider whether the Government’s position was substantially justified. We review the district court’s decision to deny Petitioner’s request for EAJA fees for an abuse of discretion.
Pierce v. Underwood,
[W]e look beyond the issue on which the petitioner prevailed to determine, from the totality of the circumstances, whether the government acted reasonably in causing the litigation or in taking a stance during the litigation. In doing so, it is appropriate to consider the reasonable overall objectives of the government and the extent to which the alleged governmental misconduct departed from them.
Id.
at 139. The Government’s position is substantially justified if it is “ ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.”
Pierce,
On appeal, Petitioner contends the Government was required, by statute and regulation, to accept the Navy’s initial certification that he was on active-duty status. In addition, Petitioner argues the Government unjustifiably (1) obtained a new Form N-426 and (2) argued the court was bound by the Navy’s most recent certification.
See also
J.A. at 484-86. If the Government was bound by the Navy’s certification of Petitioner’s status, Petitioner argues, then the Government should have accepted the first completed N-426 and naturalized him accordingly. Because he had already passed his naturalization exam and background checks, and with
The Government, on the other hand, argues the сentral issue in this lawsuit is and has always been whether Petitioner was eligible for naturalization. The answer to this question turns on whether Petitioner served on active duty while a midshipman at the Academy. Both parties have stated numerous times that this is a question of first impression.
2
As the Government notes, litigating cases of first impression is generally justifiable.
Hyatt v. Shalala,
At the outset, we note the Government correctly argues Petitioner bears the burden of demonstrating his eligibility for citizenship: “[I]t has been universally acknowledged that the burden is on the alien applicant to show his eligibility for citizenship in every respect. This Court has often stated that doubts should be resolved in favor of the United States and against the claimant.”
Berenyi v. Immigration & Naturalization Service,
Below, the Government’s argument rested on the interpretation of statutory text, analogous сases, and Congressional intent. In a nutshell, the Government contended the court was bound to accept the Navy’s Form N-426 certification that Petitioner was not on active duty while at the Academy. Alternatively, if the court decided to accept neither form, the Government argued the court should consider relevant statutes and analogous cases, which, in its view, revealed that Petitioner had not been
To support its first point, the Government argued
Anticipating the district court’s rejection of the conflicting Forms N-426, the Government made several statutory arguments. First, the Government pointed to the definition of active duty in
The term “active duty” means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the activе military service, at a school designated as a service school by law or by the Secretary of the military department concerned.
Second, the Government urged the district court to consider the text of
Third, the Government pointed to
In addition, the Government provided analogous cases to support its position. J.A. at 232-42. In these cases, other courts concluded service in the Reservе Officers’ Training Corps (ROTC) was not active-duty service.
Bagheri,
The Government also relied on legislative history to demonstrate that Congress’s intent in drafting § 329 was not to reward people like Petitioner with an accelerated path to naturalization. Rather, the Government argued, Congress intended to reward the “military sеrvice [of an] alien in times of war or undeclared military hostilities with due recognition of the dangers and risks inherent in such service wherever it might be because of the ever-present possibility of reassignment to the war zones of operation.” S.Rep. No. 1292, 90th Cong., 2d Sess. 13, reprinted in 1968 U.S.C.C.A.N. 4517, 4527. The Government argued that service at the Academy does not present the same risks of being called to serve in “the war zones of operation.” Thus, Petitioner should not be naturalized under § 329 because his time at the Aсademy was not the sort of service § 329 was intended to reward.
Further, though Petitioner argues the Government’s prelitigation conduct was not substantially justified because it unreasonably delayed and refused to accept the Navy’s certification of Petitioner’s active duty status, the Government responds that while the Navy may have altered its position because of a mistake, USCIS continually questioned whether Petitioner had met his burden to demonstrate eligibility for citizenship. Any delay, argued the Government, resulted from its attempt to thoroughly investigate Petitioner’s application.
The district court’s consideration of these arguments is clear from the record, which includes a transcript of a hearing where the court thoroughly questioned counsel for both parties about their positions. As a result, though the district court’s order denying Petitioner’s request for EAJA fees only briefly explained the court’s reasoning, both the order and the record reflect that the district court considered the arguments of both parties to be reasonable. We agree. In this case of first impression, the Government made reasonable arguments based on statutory interpretation and analogous cases. The district court, therefore, did not abuse its discretion in deciding the Government’s position was substantially justified.
III.
Petitioner argues in the alternative that the district court did not sufficiently explain its reasons for finding the Government’s position to be substantially justified. He points to the fact that the district court did not even wait for the Government to respond to his motion for EAJA fees before ruling. The Government con
As Petitioner correctly notes, we have twice remanded EAJA fee cases for the distriсt court to explain its reasoning for concluding the Government’s position was substantially justified.
See Mann v. Astrue,
Petitioner does not provide, nor could we find, precedent requiring a district court to perform a certain kind of analysis, recite certain magic words, or follow a particular formula when denying motions for EAJA fees. While the district court in this case could hаve set forth its rationale in more detail, we can discern from the record what the district court meant when it said both parties made reasonable arguments. Moreover, as
Pierce
requires, the district court determined the Government made arguments which would be satisfactory to a reasonable person.
Pierce,
Accordingly, the district court’s denial of Petitioner’s request for EAJA fees is
AFFIRMED.
Notes
. Before the district court, the parties declined to delve into the facts surrounding the new Form N-426, such as whether the Government somehow fraudulently obtained it. The court seemed to conclude the form had been obtained for the purpose of bettering the Government's litigating position but did not rely on any Form N-426 in deciding this case. Nor will we speculate on the Government’s motive in obtaining Fischer-Anderson's Form N-426.
. At oral argument, Petitioner's counsel argued the question to be answered in this case was not "what does it mean to be on active duty?” but "whether the Navy has certified [Petitioner was] on active duty.” Because, in his view, the relevant statutes and regulations tasked the Navy with determining the active duty status of its Academy students, counsel seemed to argue the case was "not a case of first impression, it's a case under a statute that's been interpreted before....” Even if Petitioner has correctly framed the question the district court had to answer in this case, there are no cases in this Circuit addressing whether USCIS is bound by the Navy’s certification of a midshipman's active duty status or whether a foreign national's attendance at the Academy constitutes active duty service. Thus, this case is properly termed one of first impression.