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 US-CIS 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. USCIS’s own regulation dictates that an initial examination should be undertaken only after an applicant’s full background check has been completed. 8 C.F.R. § 335.2(b). After Aronov was interviewed, federal law required USCIS to adjudicate his application within 120 days. See 8 U.S.C. § 1447(b); 8 C.F.R. § 335.3(a). Aronov heard nothing from USCIS for over a year. He made repeated inquiries about the status of his application. On March 23, 2006, 402 days after his examination, Aronov received a letter from the agency requesting six months more to complete additional review. At that time, Aronov’s statutory right to sue USCIS in .federal district court to compel action on his application had already accrued. See 8 U.S.C. § 1447(b). On August 28, 2006, 560 days after his initial examination, and 440 days past USCIS’s deadline for adjudicating the application, Aronov filed suit. ■
Thirty-nine days later, the background check was complete. On October 6, 2006, the government and Aronov filed a Joint Motion for Remand Pursuant to 8 U.S.C. § 1447(b). In full, the joint motion read:
Pursuant to 8 U.S.C. § 1447(b), the parties in this .action, plaintiff ... and de*102fendants Michael Chertoff, Secretary of the United States Department of Homeland Security, et ah, hereby jointly move this Honorable Court to remand this matter to the USCIS, so that [it] can grant plaintiffs application for naturalization, and schedule plaintiffs oath ceremony for no later than November 8, 2006. In support of this motion, the parties state as follows:
1. On or about August 28, 2006, plaintiff Alexandre Aronov filed this action.
2. Since that date, USCIS has completed its review of plaintiffs application for naturalization and, if jurisdiction is returned to the agency, would grant the application and schedule plaintiffs oath ceremony for no later than November 8, 2006.
8. 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 plaintiffs 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 U.S. Citizenship and Immigration Services.” 1
On November 28, 2006, Aronov filed an application for attorney’s fees pursuant to the EAJA.2 The government opposed Aronov’s application, asserting that he was not a prevailing party in the litigation under the test established in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (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 plaintiffs 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. Chertoff, No. 06-11526, 2007 U.S. Dist. LEXIS 40455, at *5 (D.Mass. Jan. 30, *1032007) (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, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), a number of exceptions to this default rule have been adopted by statute. One such exception, the EAJA, authorizes an award of attorney’s fees and costs to a litigant who has brought a civil suit against the United States if (1) she is the prevailing party in the matter; (2) the government fails to show that its position was substantially justified; and (3) no special circumstances would make such an award unjust. 28 U.S.C. § 2412(d)(1)(A); see also Schock v. United States, 254 F.3d 1, 4 (1st Cir.2001). By offering qualifying litigants attorney’s fees and other expenses, the EAJA seeks “to remove economic deterrents to parties who seek review of unreasonable government action.” Schock, 254 F.3d at 4.
The court reviews the district court’s decision to grant or deny a fee application under the EAJA for abuse of discretion, id., “mindful that the district court has an ‘intimate knowledge of the nuances of the underlying case,’ ” New Eng. Reg'l Council of Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir.2002) (quoting Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.2001)). “Such deference is particularly appropriate where, as here, the correctness of the court’s decision depends in large part on the proper characterization of its own statements.” Id.
A. Prevailing Party
The Supreme Court has long held that a plaintiff who obtains a “settlement agreement[] enforced through a consent decree” is a “prevailing party.” See Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835 (citing Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (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 Sens., 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. La-Grange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir.2003) (settlements “sufficiently analogous” to consent decrees).
Given the posture of the underlying litigation, the question in this case is whether the district court’s remand order is functionally equivalent to a consent decree. If the order is functionally equivalent to a consent decree, then a fortiori it possesses whatever “judicial imprimatur” a consent decree possesses, see Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835, 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, *104“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 enforce the agreement by incorporating the terms of the joint motion into the remand order.
1. The change in legal relationship was court-ordered
During the litigation, only the district court possessed the authority to give Aronov the relief he requested. After Aronov filed suit, USCIS lost jurisdiction to adjudicate his application, thereby precluding USCIS from naturalizing Aronov without further court involvement. 8 U.S.C. § 1447(b) (“Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter.”); see Etape v. Chertoff, 497 F.3d 379, 384-85 (4th Cir.2007). The parties acknowledged this jurisdictional point in their joint motion for remand to the district court, which highlights the terms of 8 U.S.C. § 1447(b).3 They understood that 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 Buekhannon. There, the plaintiff alleged that West Virginia law conflicted with federal law, 532 U.S. at 601, 121 S.Ct. 1835, and the West Virginia legislature retained its authority throughout the litigation to “unilaterally]” 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 *105court’s order was necessary to return authority to the agency.4
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 plaintiffs application for naturalization, and schedule plaintiffs oath ceremony for no later than November 8, 2006.’” Aronov, 2007 U.S. Dist. LEXIS 40455, at *4 (quoting Joint Mot. to Remand). There is no mistaking the district court’s meaning here. Its remand order incorporated by reference the joint motion of the parties and thereby ordered USCIS to fulfill the promise that it made to Aronov and the court in the joint motion. This was the district court’s own understanding of its order. See id. at *4-5.
A district court is in the best position to explain the meaning of its own order. We defer routinely to the district court’s view of the significance of its remand order. See Kinton, 284 F.3d at 30 (“Clearly, the district court is in the best position to determine whether its statements ... should be considered as the functional equivalent of a judicial order within the meaning of Buckhannon.”); Harvey v. Johanns, 494 F.3d 237, 242 (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.
*106This 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: “[adjudicating [his] Application for Naturalization ... or, in the alternative, [Requiring [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 motion makes specific representations to the court about the action the defendant would take. The comb’s order refers to the joint motion twice, once by name and once by docket number. USCIS could only understand that the court was ordering it to carry out the promise made to the court. USCIS would naturalize Aronov by November 8, 2006, and thereby change his status from alien to citizen.
2. The court satisfied the requirements for entering a consent decree
The majority contends that a district court must “appraise,” “weigh” or “evaluate” the merits of a case in relation to the relief provided by the consent decree. The requirements for entering a consent decree were recently summarized by the Supreme Court in Frew ex rel. Frew v. Hawkins:
Consent decrees entered in federal court must be directed to protecting federal interests. In [Local No. 93], we observed that a federal consent decree must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.
540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (citing Local No. 93, 478 U.S. at 525, 106 S.Ct. 3063 (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, “[district 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 Dur*107rett v. Housing Auth. of Providence, 896 F.2d 600, 604 (1st Cir.1990)); see also United States v. City of Miami, 664 F.2d 435, 441 (Former 5th Cir.1981).
We agree that it would be difficult for a district court to determine the fairness, reasonableness and adequacy of a proposed agreement without making some evaluation of the merits of the case in relation to the relief provided by the consent decree. However, “how deeply the judge must inquire, what factors he must take into account, and what weight he should give the settling parties’ desires will vary with the circumstances.” Donovan v. Robbins, 752 F.2d 1170, 1177 (7th Cir.1985); 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, 124 S.Ct. 899; Conservation Law Found., 989 F.2d at 58 (holding that a court must “review” a proposed consent decree). As a reviewing court, we assume that a judge understands the role the district court is supposed to play in deciding whether to enter a consent decree, and that the judge acts in accordance with that understanding. As we explained previously regarding this very issue,
the question is whether the record contains adequate facts to support the decision of the district court to approve the proposed compromise. As to this, as the Supreme Court has observed, “a reviewing court would be properly reluctant to attack that action solely because the court failed adequately to set forth its reasons or the evidence on which they were based.”
United States v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 280 (1st Cir.2000) (quoting Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 437, 88 S.Ct. 1157, 20 L.Ed.2d 1 (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, 88 S.Ct. 1157. 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 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 deter*108mine 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 into an order, the district court retains jurisdiction to enforce that agreement. Smith, 401 F.3d at 24 (“ ‘Either incorporation of the terms of the agreement or a separate provision retaining jurisdiction over the agreement will suffice [to retain jurisdiction to enforce the agreement].’ ” (quoting Smyth, 282 F.3d at 283)); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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
*1094. 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 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.
The government bears the burden of demonstrating that its position was substantially justified. Schock v. United States, 254 F.3d 1, 5 (1st Cir.2001). The Supreme Court has interpreted the “substantially justified” language in the EAJA to require reasonableness: “[A]s between the two commonly used connotations of the word ‘substantially,’ the one most naturally conveyed by the phrase before us here is not ‘justified to a high degree,’ but rather ‘justified in substance or in the main’ — that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also Schock, 254 F.3d at 5; Dantran, Inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 40-41 (1st Cir.2001). Thus, thé key question is whether the government’s position has “a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541.
The majority argues that the government’s pre-litigation position insisting on *110compliance with the name check policy is substantially justified because it “stemmed from two statutory mandates under which it must operate,” and because that policy has since been endorsed by Congress. The first statute, 8 U.S.C. § 1446(a), provides that “[bjefore 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 year 1998 and each fiscal year thereafter, none of the funds appropriated or otherwise made available to [USCIS] shall be used to complete adjudication of an application for naturalization unless [USCIS] has received confirmation from the Federal Bureau of Investigation that a full criminal background check has been completed.... ” Depts. of Commerce, Justice & State, The Judiciary & Related Agencies Appropriations Act of 1998, Pub.L. No. 105-119, 111 Stat. 2440, 2448-49 (1997) (8 U.S.C. § 1446 note). The majority also suggests that “Congress has since essentially endorsed USCIS’s choice to use FBI name checks ... by appropriating $20 million to USCIS to ‘address backlogs____’” See Consolidated Appropriations Act of 2008, Pub.L. No. 110-161, 121 Stat. 1844 (2007).
Relying on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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.
This argument misconstrues what is at stake in this case. There is no challenge to the authority of USCIS to adopt the name check program as a policy. What is challenged is the application of that policy in this instance. Even if USCIS is entitled to invoke Chevron to defend its use generally of the FBI name check process, see generally Cass Sunstein, Chevron Step Zero, 92 Va. L.Rev. 187 (2006) (analyzing the standards for determining whether an agency interpretation is entitled to evaluation under the Chevron framework), deference to the general policy does not imply that the government was substantially justified in its dilatory handling of Aronov’s naturalization application.
The government’s 440-day delay in acting on Aronov’s naturalization application exceeded the deadline imposed by section 1447(b), which gives a district court jurisdiction to entertain a lawsuit by the applicant and evaluate a naturalization application if the agency has failed to adjudicate the application within 120 days after conducting its initial examination. See Etape, 497 F.3d at 385; see also Hovsepian, 359 F.3d at 1163 (“A central purpose of [section 1447(b)] was to reduce the waiting time for naturalization applicants.” (citing H.R.Rep. No. 101-187, at 8 (1989); 135 Cong. Rec. H4539-02, H4542 (1989) (statement of Rep. Morrison))). Both the courts and the agency itself have interpreted section 1447(b) as imposing a 120-day deadline for agency action. See, e.g., Al-Maleki, 558 F.3d 1200, 2009 WL 692612, at *5 (treating statute as imposing a deadline); Hovsepian, 359 F.3d at 1161; 8 C.F.R. § 335.3(a) (“A decision to grant or deny the application shall be made at the time of the initial examination or within 120-days after the date of the initial examina*111tion of the applicant for naturalization (emphasis added); see also Walji v. Gonzales, 500 F.3d 432, 439 (5th Cir.2007) (“[BJecause the clear intent of Congress was to accelerate naturalization applications, and the statutory and regulatory language gives a definite time frame for decision once an examination has occurred, [§ 1447] is violated in situations [where the 120-day deadline is not met].”).
The majority’s contention that the statute does not command USCIS to act within the deadline is untenable. Although the majority acknowledges that the agency has adopted a regulation, 8 C.F.R. § 335.3(a), that treats the 120-day time frame as a deadline, the majority regards the statutory and regulatory frame as merely aspirational, with no consequences for the agency if it fails to comply.10 If Congress had taken such a related view of its 120-day time frame, it would not have explicitly provided that an applicant whose naturalization application remains unresolved at the end of the 120-day period may file suit in federal court to have the application either adjudicated by the court or remanded to the agency with instructions to adjudicate it. See, e.g., Etape, 497 F.3d at 384-85 (concluding that after an applicant has filed suit with the district court pursuant to § 1447(b), the court has exclusive jurisdiction over the application).11
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 *112NNCP 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 US-CIS’s handling of Aronov’s application. It asserts sweepingly that “the choice by USCIS to favor national 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 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 *113not 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 only general justifications for the delay, including the importance of the agency’s policy of requiring name checks for security purposes and the significant backlog of names that the FBI is processing. These explanations, however, do not justify the agency’s disregard of the clear statutory mandate. Although I also acknowledge that the agency has valid — indeed persuasive — reasons for requiring comprehensive FBI name checks under ordinary circumstances, that policy determination cannot justify the failure to comply with a statutory deadline. See, e.g., Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir.2008) (“An agency has an obligation to abide by its own regulations.”).
Despite the agency’s plaint to the contrary, USCIS was not caught in a hopeless bind between the national security imperatives of name check review and the 120-day statutory and regulatory deadline. As the facts in this case demonstrate, USCIS could have addressed the name check delay in a manner consistent with the applicable laws and regulations, and without sacrificing national security interests, by doing generally and more promptly exactly what it did here. Instead of waiting for a lawsuit, the agency could have bumped applicants “mistakenly” interviewed before their name checks were completed to the front of the name check line before the 120-day deadline lapsed, saving the applicants and the agency the expense of a lawsuit. At the very least, in those cases where the deadline has already passed and the applicant has informed the agency of this fact, USCIS could ask the FBI for expedited treatment of the name check.16 What the agency surely cannot do with “substantial justification” is blatantly ignore the requirements imposed on it by Congress and by itself.
The majority’s attempt to invoke an administrative policy to trump an explicit statutory command turns Chevron deference on its head. See Stinson v. United States, 508 U.S. 36, 44, 113 S.Ct. 1913, 123 L.Ed.2d 598 (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 ex*114pedite 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 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 contrary to the purpose and the promise of the EAJA. I respectfully dissent.
. The "3 " references the docket number of the joint motion and was hyperlinked to the joint motion’s text.
. The EAJA provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
. Elsewhere parties have litigated the question of whether the court maintains exclusive jurisdiction or, alternatively, concurrent jurisdiction with the USCIS. Most courts have held that the district court has exclusive jurisdiction over the application until it has acted pursuant to the statute. See, e.g., Etape, 497 F.3d at 384-85 (holding that section 1447(b) vests the district court with exclusive jurisdiction over a naturalization application); United States v. Hovsepian, 359 F.3d 1144, 1159 (9th Cir.2004) (en banc) (same). But see, e.g., Bustamante v. Chertoff, 533 F.Supp.2d 373, 381 (S.D.N.Y.2008) (reaching the opposite conclusion). In its initial argument to us, the government did not suggest that USCIS maintained jurisdiction over Aronov’s application after he filed suit in district court. In the en banc proceedings, the government alluded to the concurrent jurisdiction argument. Whatever the government’s intent with the allusion, it is beside the point. The government's conduct of the litigation reflected its view that it could not act on Aronov's naturalization application without a remand order from the district court. Moreover, as, the Tenth Circuit recently pointed out in Al-Maleki v. Holder, 558 F.3d 1200, 1205 (10th Cir.2009), even if US-CIS did retain concurrent jurisdiction over the application after the suit was filed, "the district court resolved the litigation before USCIS could voluntarily naturalize [the applicant].” Id. (emphasis in original). This order of events distinguishes Buckhannon regardless of the jurisdictional question.
. 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, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). Yet a plaintiff who obtains a consent decree is eligible for fees. Maher, 448 U.S. at 129-30, 100 S.Ct. 2570. 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, un*106like 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 Maimón 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 *108reasonable 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 11(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, 114 S.Ct. 1673. 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 Fed.R.Civ.P. 65(d) (discussing form of order); United States v. Saccoccia, 433 F.3d 19, 28 (1st Cir.2005) (requiring terms to be clear and unambiguous). The crucial question, as the majority acknowledges, is whether the district court retained jurisdiction over the agreement. The remand order did this by incorporating the terms of the joint motion by reference. Given this circumstance, if USCIS had failed to comply with the remand order, Aronov could have asked the court to issue an injunction confirming the naturalization obligation of USCIS and ordering compliance with it. Courts routinely issue supplemental orders to enforce a consent decree as a prelude to the invocation of contempt authority. See, e.g., King v. Greenblatt, 127 F.3d 190, 192 n. 5 (1st cir.1997) (describing the district court's issuance of injunctions "to implement the thrust of the earlier consent decree”). The majority fails to recognize the distinction between consent decrees and injunctions. It suggests wrongly that I have characterized the district court "as having essentially issued an injunction.” That is not so. I have concluded that the district court entered the functional equivalent of a consent decree. There are key differences between consent decrees and in*109junctions — 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.
. The Tenth Circuit’s recent decision in Al-Maleki, 558 F.3d 1200, 1205, 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 1205. 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.
. 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 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.
. In addition to section 1447(b)'s specific command, the Administrative Procedures Act (“APA”) offers a more general directive to agencies to resolve matters presented to them within a reasonable amount of time. See 5 U.S.C. § 555(b) (“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.”). Our assessment of what is reasonable is informed by the relevant statutes and regulations. See Towns of Wellesley, Concord and Norwood, Mass. v. FERC, 829 F.2d 275, 277 (1st Cir.1987) (discussing the guidelines, including the existence of a "rule of reason,” which govern the time an agency may take to make a decision) (citing Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C.Cir.1984)); Caswell v. Califano, 583 F.2d 9, 16 (1st Cir.1978) (indicating that courts may look to statutory text to provide a reasonable time limit on agency action). Here, section 1447(b) and 8 C.F.R. § 335.3(a) provide such guidance. See Sze v. INS, No. C-97-0569 SC, 1997 WL 446236, at *7 (N.D.Cal. July 24, 1997) ("[T]he 120-day rule provides the court with a measure of what constitutes a reasonable period for INS to process naturalization applications.”).
. 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 naturalizalion process to file mandamus lawsuits.” It is the agency itself that gives applicants an incentive to file suit by choosing to request expedition of name checks if an applicant files suit. The agency could remove this incentive by requesting expedition before a suit is filed, as the record shows it could. Finally, the majority also endorses the government's suggestion that awarding attorney’s fees will create a “disincentive for the agency to settle these cases.” Yet the government already pursues such settlements in jurisdictions where it faces the risk of having to pay attorney's fees. See, e.g., Kats v. Frazier, No. Civ. 07-479, 2008 WL 2277598 (D.Minn. May 30, 2008); Ghanim v. Mukasey, 545 F.Supp.2d 1146 (W.D.Wash.2008); Phompanya v. Mukasey, No. C07-597MJP, 2008 WL 538981 (W.D. Wash. Feb 25, 2008); Berishev v. Chertoff, 486 F.Supp.2d 202 (D.Mass.2007). The agency's decision to seek an early compromise despite facing a risk of paying attorney’s fees is easy to understand. By refusing to settle the agency would risk the payment of substantially higher EAJA fees because its unreasonable litigation position would compound the cost of its unreasonable pre-litigation position.
. This is the same conclusion reached by the Tenth Circuit in Al-Maleld, 558 F.3d 1200, 1206. 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 1210. 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.