(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 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. 86 (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 dis*100trict court on the meaning of its own orders. See New England Regional Council of Carpenters v. Kinton, 284 F.3d 9, 19 (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 US-CIS 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 power to remand without consideration. Such a conclusion is unfair to our district courts and is not even supported by the precedent on which the majority relies. See Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1025 (Fed.Cir.2005) (stating that, depending on the context and effect of the order, a remand to an administrative agency can constitute prevailing on the merits). Here, where the remand order effectively mandated the relief Aronov sought and changed the jurisdictional landscape such that that relief could be awarded, the majority must strain to avoid seeing judicial imprimatur.3
Similarly, in supporting its ruling for the government on this issue, the majority effectively says that district courts do not have authority to sanction parties that fail to comply when the court allows a clear and unambiguous motion seeking to compel some 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 *101follow 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.
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.
. See, e.g., Chedad v. Gonzales, 497 F.3d 57, 66 (1st Cir.2007) (rejecting an immigrant's claim to adjustment of status by refusing to toll the time period for voluntary departure while a motion to reopen was pending), overruled by Dada v. Mukasey, - U.S. -, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008); Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005) (explaining limitation on judicial review of BIA determinations regarding timeliness of asylum applications); Zhang v. INS, 348 F.3d 289, 292 (1st Cir.2003) (explaining the strict jurisdictional timing requirements on appeals of asylum applications and limitation on tolling).
. See also United States v. Vega-Santiago, 519 F.3d 1, 7 (1st Cir.2008) (en banc) (Torruella, J., dissenting).
. 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, 558 F.3d 1200 (10th Cir.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 1205. These differenees 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 AlMaleki is distinguishable is strained, elevates form over function, and effectively does create a circuit split.
. As appears engraved on the building housing the Supreme Court of the United States.