Aronov v. Chertoff

United States Court of Appeals
For the First Circuit

No. 07-1588

ALEXANDRE ARONOV,

Plaintiff, Appellee,

v.

MICHAEL CHERTOFF, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Chief Judge,
Tashima, Circuit Judge,*
and Lipez, Circuit Judge.

Surell Brady, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Peter D. Keisler, Assistant Attorney General, Thomas H. Dupree,
Jr., Deputy Assistant Attorney General, and Donald E. Keener,
Deputy Director, were on brief, for appellant.
Gregory Romanovsky, with whom the Law Office of Boris B.
Maiden was on brief, for appellee.

August 1, 2008

*
Of the Ninth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. We address in this case whether

appellee Alexandre Aronov is entitled to attorney's fees from the

government under the Equal Access to Justice Act ("EAJA"), 28

U.S.C. § 2412. The act provides that a court shall award fees and

expenses to a prevailing party in a civil action against the United

States unless the court finds that the position of the government

was substantially justified or that other circumstances make an

award unjust.

Aronov filed the action in this case to force the

government to act on his long-pending application for

naturalization. The district court awarded him attorney's fees

under the EAJA on the grounds that he was the prevailing party in

the litigation and that the pre-litigation position taken by the

government was not substantially justified. We affirm the district

court's award.

I.

A native of Russia and a permanent resident of the United

States since 2001, Aronov applied for naturalization with the

Vermont Service Center of the United States Citizenship and

Immigration Services ("USCIS") on May 22, 2004. After initial

processing and completion of the required fingerprint check,

Aronov's case was forward to the Boston USCIS office. Pursuant to

8 U.S.C. § 1446(b) and 8 C.F.R. § 335.2(a), Aronov was interviewed

on February 14, 2005 regarding his application. However, as the

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government acknowledges, the agency's interview with Aronov was

premature. The agency's own regulation dictates that an initial

examination should be undertaken only after an applicant's full

background check has been completed. See 8 C.F.R. § 335.2(b) ("The

Service will notify applicants for naturalization to appear before

a Service officer for initial examination on the naturalization

application only after the Service has received a definitive

response from the Federal Bureau of Investigation that a full

criminal background check of an applicant has been completed.").

The government has not explained why it did not follow its

regulation in this case.

At the time of the interview, Aronov was informed that

his application could not be approved until additional security

checks were completed. After hearing nothing from the USCIS for

more than a year, Aronov received a letter from the agency on March

23, 2006 informing him that his application was being actively

processed, but that additional review was required. The notice

also instructed Aronov to contact USCIS if he did not receive a

decision within six months of the date of the notice.

On August 28, 2006, more than eighteen months after being

interviewed by the agency, Aronov filed an action in the district

court under 8 U.S.C. § 1447(b), requesting that the court grant his

application for naturalization or, alternatively, remand his

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application with instructions to the agency to adjudicate it.1

Five weeks later, on October 6, 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
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:

1. On or about August 28, 2006,
plaintiff Alexandre Aronov filed this action.
2. Since that date, USCIS has
completed its review of plaintiff's
application for naturalization and, if
jurisdiction is returned to the agency, would
grant the application and schedule plaintiff's
oath ceremony for no later than November 8,
2006.
3. The governing statute, 8 U.S.C. §
1447(b), provides that, in cases in which the
agency has failed to render a decision on an

1
8 U.S.C. § 1447(b) reads:

If there is a failure to make a determination
under section 1446 of this title [to grant or
deny the naturalization application] before
the end of the 120-day period after the date
on which the examination is conducted . . . ,
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.

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 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."2 Aronov was sworn in as a U.S. citizen on November 8,

2006.

On November 28, 2006, Aronov filed an application for

attorney's fees pursuant to the EAJA. The statute 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

2
The "3" references the previously submitted joint remand
motion.

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 States was substantially justified or that
special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The government opposed the application,

asserting that Aronov 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 (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. The government appeals this decision.

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 EAJA, authorizes the 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.

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 We review 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 England Regional 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. We

apply this standard to both the prevailing party and substantial

justification determinations. Pierce v. Underwood, 487 U.S. 552,

558-63 (1988) (substantial justification); McDonald v. Secretary of

HHS, 884 F.2d 1468 (1st Cir. 1989) (prevailing party). An error of

law is always an abuse of discretion. Rosario-Urdaz v. Rivera-

Hernandez, 350 F.3d 219, 221 (1st Cir. 2003).

A. Prevailing Party

1. The District Court's Decision

The district court began its attorney's fees analysis by

addressing whether Aronov was a prevailing party under the EAJA.

Invoking the Supreme Court's decision in Buckhannon, the district

court found that the first requirement of the prevailing party

standard -- whether there was "a material alteration of the legal

relationship of the parties" -- was indisputably met because

Aronov's status had changed from legal permanent resident to U.S.

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citizen. The government does not dispute that this requirement has

been satisfied.

Proceeding to the second element of the test -- whether

there was a "judicial imprimatur3 on the change" in status -- the

court rejected the government's assertion that the imprimatur

requirement had not been met here because the agency had acted

voluntarily to grant Aronov's naturalization application. Instead,

the court concluded that the remand order satisfied the second

element set forth in Buckhannon because the order effectuated the

change in legal status that Aronov had sought. The court indicated

that the remand did not merely return jurisdiction to USCIS. It

also mandated the agency's compliance with a November 8, 2006

deadline for granting Aronov's naturalization. The court noted

that "[w]here the government in Buckhannon took its conciliatory

action purely voluntarily, and took on no further duties in the

dismissal, the government here was granted not a dismissal, but a

remand to the agency conditional on the granting of plaintiff's

naturalization action by November 8, 2006." (emphasis in

original). It asserted, therefore, that "[h]ad the naturalization

not so occurred, the parties might very well be back in front of

this court litigating a contempt action. This is far more than a

catalyst theory -- it was an order of the Court."

3
Black's Law Dictionary defines "imprimatur" as "a grant of
approval; commendatory license or sanction." (8th ed. 2004).

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 2. Buckhannon

The issue in Buckhannon was whether a legislative change

that effectively awarded petitioner its sought-after relief could

provide the basis for a statutory fee award.4 The plaintiff was an

operator of assisted living homes who failed a state fire

inspection because some of the residents of plaintiff's homes were

not capable of "self-preservation," as defined by West Virginia

law. On behalf of itself and other parties similarly situated, the

home operator brought suit against the state, two state agencies,

and several individuals, seeking injunctive and declaratory relief

to the effect that the "self-preservation" requirement violated

provisions of the Fair Housing Amendments Act of 1988 ("FHAA") and

the Americans with Disabilities Act of 1990 ("ADA"). Before the

federal district court decided the issue, the West Virginia

legislature eliminated the "self-preservation" requirement by

statute. The court subsequently granted the defendants' motion to

dismiss the case.

4
Although the Supreme Court in Buckhannon interpreted the
fee-shifting provisions of the Fair Housing Amendments Act of 1988
("FHAA"), 42 U.S.C. §§ 3601-3631, and the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213, "the
principles underlying [its] holding [we]re broadly stated and []
not statute-specific." Doe v. Boston Pub. Schs., 358 F.3d 20, 25
(1st Cir. 2004). Accordingly, we have held that the Supreme
Court's reasoning in "Buckhannon is presumed to apply generally to
all fee-shifting statutes that use the 'prevailing party'
terminology." Smith v. Fitchburg Pub. Schs., 401 F.3d 16, 22 n.8
(1st Cir. 2005) (quoting Doe, 358 F.3d at 25). The parties do not
dispute the applicability of Buckhannon in this case.

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 The plaintiffs filed an application for attorney's fees

under the FHAA and the ADA, which was denied by both the district

court and the Fourth Circuit. The Supreme Court affirmed. The

Court held that petitioner could not obtain a fee award in the

matter because the legal change had not been judicially sanctioned

by a court. Buckhannon, 532 U.S. at 605 ("[D]efendant's voluntary

change in conduct, although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit, lack[ed] the necessary

judicial imprimatur."). The Court explicitly rejected the notion

that a party is entitled to attorney's fees simply because the

underlying litigation triggered her sought-after relief -- the so-

called "catalyst theory." Id. It noted that previously it had

"only awarded attorney's fees where the plaintiff ha[d] received a

judgment on the merits or obtained a court-ordered consent decree,"

but not "where the plaintiff ha[d] secured the reversal of a

directed verdict, or acquired a judicial pronouncement that the

defendant ha[d] violated the Constitution unaccompanied by judicial

relief," id. at 605-06 (internal citation and quotation marks

omitted). A private settlement not incorporated into a court order

does not confer prevailing party status. See id. at 606 ("Never

have we awarded attorney's fees for a nonjudicial alteration of

actual circumstances.") (emphasis added) (internal quotation

omitted).

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 3. Smith v. Fitchburg Public Schools

As a circuit, we have applied Buckhannon in a number of

cases, see Smith v. Fitchburg Public Schools, 401 F.3d 16, 22 (1st

Cir. 2005) (applying the Supreme Court's decision in the context of

an action under the Individuals with Disabilities Education Act

("IDEA")); Doe v. Boston Public Schools, 358 F.3d 20, 22-26 (1st

Cir. 2004) (similar analysis); Kinton, 284 F.3d at 30 (declining to

award attorney's fees because the district court had not entered

any order "compelling, or even leading to" the plaintiff receiving

the relief it had requested), each time evaluating the specific

facts of the case to determine whether the court's conduct was

sufficient to "provide the necessary judicial imprimatur on the

change in the legal relationship between the parties," Smith, 401

F.3d at 23 (citation omitted).

The government relies in particular on our Smith

decision. There, the parents of a disabled child initiated a

proceeding under the IDEA against the Fitchburg Public Schools,

seeking special education services for their child. After several

pre-hearing orders by a hearing officer of the Bureau of Special

Education Appeals ("BSEA"), the entity in charge of overseeing the

proceeding, the parties reached a private settlement that provided

the plaintiffs all of the relief they had sought. The plaintiffs

subsequently filed an action in the district court seeking to

recover attorney's fees pursuant to the IDEA. They argued that the

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orders of the BSEA, which required the school district to take

certain actions and set deadlines for those actions, served as the

necessary "judicial imprimatur" to grant them "prevailing party"

status. Id. at 22.

After recognizing that the administrative relief was not

in the form of a consent decree or a final judgment on the merits,

and that the plaintiffs had not argued that the administrative

orders were functionally equivalent to a consent decree, we

addressed in Smith whether the facts of the case generally met the

two required elements of Buckhannon.5 Acknowledging that the

plaintiffs had achieved a material change in the parties'

relationship -- thereby satisfying the first prong of Buckhannon,

we rejected the plaintiffs' claim for attorney's fees on the ground

that the BSEA orders had not provided sufficient "judicial

imprimatur" on the relief obtained. Id. at 27. On this issue, we

observed that when the administrative orders were imposed, the BSEA

had not yet begun to analyze the plaintiffs' substantive claim --

whether they were entitled to relief pursuant to the IDEA --

because it had yet to convene a due process hearing. Id. at 26-27.

The BSEA's decisions, therefore, were not substantive ones made

5
We noted in Smith that this circuit had not "squarely
addressed whether judgments on the merits or consent decrees are
the only forms of relief sufficient to confer prevailing party
status, whether a functional equivalent of such relief may be
adequate, or whether any other types of relief could satisfy
Buckhannon's requirements." Smith, 401 F.3d at 23; see also Doe,
358 F.3d at 24 n.4.

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after reviewing the merits of plaintiffs' claims, but rather orders

directing Fitchburg to do what it had already promised the

plaintiffs it would do. Id. at 27. Accordingly, the "orders and

ruling were [not] issued . . . to place the weight of judicial

authority behind Fitchburg's substantive concession that

[plaintiff] was entitled to an IEP," and hence the relief obtained

by the plaintiffs lacked the necessary judicial imprimatur. Id.

4. Applying Buckhannon and Smith

Citing Smith, the government contends that the district

court's remand order did not provide the necessary "judicial

imprimatur" for Aronov's sought-after remedy, naturalization. The

government maintains that it already had voluntarily decided to

grant Aronov's application. It then established a specific time-

frame for doing so, and the court order merely "memorialized" the

government's independent concessions, as it did in Smith. Further,

the remand order did not include any "appropriate instructions"

directing the government to take specific action, see 8 U.S.C. §

1447(b), or retain jurisdiction in order to determine whether the

government followed through on its voluntary decision to approve

Aronov's application. Accordingly, the order had no substantive

effect on the proceeding and, therefore, did not constitute a

"judicial imprimatur," as the Supreme Court defined it in

Buckhannon and as we applied the standard in Smith.

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 We reject the government's arguments and find its

reliance on Smith misplaced. Most of the language from Smith

relied upon by the government comes in that portion of the panel's

decision where it assesses whether the plaintiff's relief, "even

though not in the form of a consent decree or a final judgment on

the merits, comports with the overarching requirements of

Buckhannon; that is, whether the [administrative hearing officer's

involvement] provided the necessary judicial imprimatur on a

material alteration of the legal relationship between the parties."

Smith, 401 F.3d at 26. As the panel noted, "[the plaintiff] does

not argue that the order dismissing her case is the functional

equivalent of a consent decree, and thus we deem that argument

waived." Id. at 24. Moreover, the Smith panel assessed whether

the order of an administrative hearing officer, rather than the

order of a judge, meets the prevailing party standard set forth in

Buckhannon. Since the administrative law analog to a judicial

consent decree is uncertain, the focus of the panel in Smith was

whether the administrative orders were akin to a judgment on the

merits. In short, the Smith decision has little relevance to the

prevailing party issue here, which turns on whether the district

court's order was the functional equivalent of a consent decree.

Nevertheless, though offered as dicta, the Smith panel

made some useful observations about the concept of the functional

equivalent of a consent decree. Specifically, the panel

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distinguished between a court's incorporation of the terms of an

agreement between the parties, which made the court order

functionally equivalent to a consent decree, and mere recognition

of an agreement accompanied by the dismissal of the case because

there is no longer a dispute, which was not equivalent to a consent

decree. Relying on the Fourth Circuit's decision in Smyth v.

Rivero, the panel put that critical difference in these terms:

Thus, "either incorporation of the terms of
the agreement or a separate provision
retaining jurisdiction over the agreement will
suffice for [an order to be considered the
functional equivalent of a consent decree]" .
. . In contrast, "[w]here a court merely
recognizes the fact of the parties' agreement
and dismisses the case because there is no
longer a dispute before it, the terms of the
agreement are not made part of the order and
consequently will not serve as a basis of
jurisdiction."

Smith, 401 F.3d at 24 (quoting Smyth, 282 F.3d 268, 283 (4th Cir.

2002)).

Here, the district court held that its remand order fell

under the first category of orders -- where the court incorporates

the terms of the parties' agreement into an order -- rather than

the second -- where the court merely recognizes the agreement and

dismisses the matter as no longer in dispute. As the district

court put it:

In Buckhannon, the government acted
independently to give the plaintiff what it
wanted, and then sought dismissal. Here, the
Court remanded specifically "so that USCIS can
grant plaintiff's application for

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 naturalization, and schedule plaintiff's oath
ceremony for no later than November 8, 2006."
This is the judicial imprimatur required by
and lacking in the specific facts of
Buckhannon. Where the government in
Buckhannon took its conciliatory action purely
voluntarily, and took on no further duties in
the dismissal, the government here was granted
not a dismissal, but a remand to the agency
conditional on the granting of plaintiff's
naturalization by November 8, 2006. Had the
naturalization not so occurred, the parties
might very well be back in front of this Court
litigating a contempt action. This is far
more than a catalyst theory -- it was an order
of the Court.

Aronov v. Chertoff, No. 06-11526-NG, 2007 U.S. Dist. LEXIS 40455,

at *4-5 (Jan. 30, 2007) (emphasis in original).

Because the district court is in the best position to

explain the meaning of its own order, we defer to its conclusion on

the significance of the 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.").

Moreover, based on our assessment of the remand order and

the circumstances of its issuance, we see no reason to question the

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district court's assessment of its own work. After Aronov filed

suit in the district court under the statute, USCIS lost

jurisdiction to adjudicate Aronov's application, thereby precluding

it from entering a binding legal agreement with Aronov regarding

his application. 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).6 The parties acknowledged as much in their joint

motion for remand to the district court, which highlights the terms

of 8 U.S.C. § 1447(b). Therefore, despite the agency's concession

to allow Aronov's naturalization, it did not have the authority to

effectuate that outcome until the district court returned

jurisdiction to the agency. The court's order was indispensable to

the naturalization outcome.

The court's remand order also ended the dispute by

providing Aronov his sought-after relief. To be sure, the district

6
The question of whether the court maintains exclusive
jurisdiction or, alternatively, concurrent jurisdiction with the
USCIS has been litigated in other courts. 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 § 1447(b) vests the
district court with exclusive jurisdiction over a naturalization
application); United States v. Hovsepian, 359 F.3d 1144, 1159 (9th
Cir. 2002) (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). Here, the government does not assert that
the USCIS maintained jurisdiction over Aronov's application after
he filed suit in district court.

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court relied on the government's statements in the joint motion for

remand that naturalization was appropriate. However, because of

the jurisdictional element, the district court could reasonably

conclude that it was ultimately the remand order, not the agency's

concession, that brought about the material change in the parties'

relationship and "place[d] the weight of judicial authority" on the

agreed-upon alteration in Aronov's legal status, see Smith, 401

F.3d at 26.

There remains the question of the form of the court's

order. If the district court had entered an order explicitly

setting forth the agreement of the parties as set forth in the

joint motion for remand, its order would unquestionably be a

consent decree. See Frew v. Hawkins, 540 U.S 431, 437 (2004) ("A

consent decree 'embodies an agreement of the parties' and is also

'an agreement that the parties desire and expect will be reflected

in, and be enforceable as, a judicial decree that is subject to the

rules generally applicable to other judgments and decrees.'"

(quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378

(1992))); see also Black's Law Dictionary (8th ed. 2004) (defining

a "consent decree" as "[a] court decree that all parties agree

to"). Yet the district court's brief remand order here, which

incorporated the terms of the joint motion by reference, had the

same import and effect. See Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 381 (1994) (indicating that a court would

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maintain jurisdiction to enforce a settlement agreement "if the

parties' obligation to comply with [its] terms . . . had been made

part of the order of dismissal -- either by separate provision . .

. or by incorporating the terms of the settlement agreement in the

order. In that event, a breach of the agreement would be a

violation of the order, and ancillary jurisdiction to enforce the

agreement would therefore exist."). Hence the brief remand order

was the functional equivalent of a consent decree. If the

government had failed to comply with the terms of the remand order,

Aronov could have sought enforcement of the order through a

contempt proceeding, as the district court noted. He would not

have had to file a separate contract action against the agency or

another suit under § 1447(b).7

7
This distinction has an analog in the private realm, where
one party is seeking to enforce the terms of a settlement agreement
against another private party. If the terms of the settlement
agreement have not been incorporated into a court order, the
federal courts will often lack jurisdiction to enforce its terms.
In contrast, where the parties have obtained a consent decree or a
court order that either incorporates the terms of the settlement
agreement or explicitly retains jurisdiction, a federal court will
possess "enforcement" or "ancillary" jurisdiction to enforce the
terms of the order. See Kokkonen, 511 U.S. at 381; Buckhannon, 532
U.S. at 604 n.7 ("[F]ederal jurisdiction to enforce a private
contractual settlement will often be lacking unless the terms of
the agreement are incorporated into the order of dismissal.")
(emphasis added); see also Fafel v. DiPaola, 399 F.3d 403, 414
(recognizing that a federal court had ancillary jurisdiction to
enforce its prior Fed. R. Civ. Pro. 68 judgment because the
judgment, although limited in nature, "necessarily incorporate[d]
the terms of the underlying Rule 68 offer" and the district court
limited its exercise of ancillary jurisdiction to enforcing the
terms of that prior judgment); Martel v. Fridovich, 14 F.3d 1, 3
n.4 (1st Cir. 1993) (per curiam) ("The appropriate vehicle for

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 There is ample authority for the proposition that the

functional equivalent of a consent decree satisfies the

requirements of Buckhannon.8 Like our sister circuits, we do not

read Buckhannon so narrowly as to preclude all forms of judicial

enforcement of the consent decree is an action for contempt brought
before the court responsible for the decree.").
8
See, e.g., Truesdell v. Phila. Hous. Auth., 290 F.3d 159,
165 (3d Cir. 2002) (holding that a court order, characterized by
the defendant as a stipulated settlement, was sufficient to support
a finding of judicial imprimatur where the order contained
mandatory language, included the judge's signature, and was
judicially enforceable); Smyth, 282 F.3d at 281 ("We doubt that the
Supreme Court's guidance in Buckhannon was intended to be
interpreted so restrictively as to require that the words 'consent
decree' be used explicitly."); T.D. v. LaGrange Sch. Dist. No. 102,
349 F.3d 469, 478 (7th Cir. 2003) ("[S]ome settlement agreements,
even though not explicitly labeled as a 'consent decree' may confer
'prevailing party' status, if they are sufficiently analogous to a
consent decree."); Carbonell v. INS, 429 F.3d 894, 901 (9th Cir.
2005) ("[W]hen a court incorporates the terms of a voluntary
agreement into an order, that order is stamped with sufficient
'judicial imprimatur' for the litigant to qualify as a prevailing
party for the purpose of awarding attorney's fees."); Am.
Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir.
2002) ("A formal consent decree is unnecessary . . . because the
explicit retention of jurisdiction or the court's order
specifically approving the terms of the settlement are . . . the
functional equivalent of the entry of a consent decree."); Davy v.
CIA, 456 F.3d 162, 166 (D.C. Cir. 2006) ("Where a settlement
agreement is embodied in a court order such that the obligation to
comply with its terms is court-ordered, the court's approval and
the attendant judicial over-sight (in the form of continuing
jurisdiction to enforce the agreement) may be equally apparent. We
will assume, then, that an order containing an agreement reached by
the parties may be functionally a consent decree for purposes of
the inquiry to which Buckhannon directs us."); see also Bell v. Bd.
of County Comm'rs. of Jefferson County, 451 F.3d 1097, 1103 (10th
Cir. 2006) ("Most circuits recognize that some settlement
agreements, even though not explicitly labeled as a consent decree
may confer prevailing party status, if they are sufficiently
analogous to a consent decree.") (internal quotations omitted).

-20-
relief other than a judgment on the merits or a court order in the

form of a consent decree, or one explicitly labeled as such, from

satisfying the judicial imprimatur requirement.9 Therefore, the

district court did not abuse its discretion in holding that its

remand order issued pursuant to § 1447(b) incorporated the terms of

the parties' joint motion and hence was the functional equivalent

of a court-ordered consent decree.10 Accordingly, the order

constituted the necessary "judicial imprimatur" on the parties'

9
Although in Smith we noted that there was disagreement among
our sister circuits on this question, citing the Eighth Circuit's
decision in Christina A. v. Bloomberg, 315 F.3d 990 (8th Cir.
2003), as an example of a court reading Buckhannon narrowly to
preclude all other forms of relief, the Eighth Circuit has more
recently repudiated our reading of its decision. See Smith, 401
F.3d at 23. In Northern Cheyenne Tribe v. Jackson, 433 F.3d 1083,
1085 n.2 (8th Cir. 2006), the court asserted that its decision in
Christina A. did not foreclose the possibility that other types of
court-ordered relief could provide the requisite judicial
imprimatur required by Buckhannon.
10
The dissent asserts that the issue of whether the district
court's remand order was the equivalent of a consent decree was not
raised by either party, nor was it the theory on which the district
court relied, and therefore we should not analyze that issue in
deciding the case. The district court did not use the phrase
"functional equivalent of a consent decree" in its decision
awarding attorney's fees and costs to Aronov. Nevertheless, in
addressing the judicial imprimatur question in its decision, the
district court described its order as incorporating the terms of
the parties' joint motion for remand. It further stated that its
order could be enforced through a contempt action. Hence the
district court described its order in consent-decree terms. The
government chose not to challenge this consent-decree aspect of the
district court's decision. Instead, it advanced a largely
irrelevant judicial imprimatur argument under our Smith decision
that it deemed more favorable to its position. Aronov responded to
the argument made by the government. He had no obligation to
respond to an argument that the government did not make.

-21-
change in legal relationship, qualifying Aronov as a prevailing

party.

B. Substantial Justification

1. Framework for Review

The government bears the burden of demonstrating that its

position was substantially justified. Shock, 254 F.3d at 5. 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, 487 U.S. at 565; see also, e.g.,

Shock, 254 F.3d at 5; Dantran, Inc. v. U.S. Dep't of Labor, 246

F.3d 36, 40-41 (1st Cir. 2001). Thus, the key question is whether

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

Pierce, 487 U.S. at 566 n.2.

As a matter of law, the government's position is

substantially justified when the government's actions are required

by a statute or law. See Dantran, 246 F.3d at 41; United States v.

One Parcel of Real Prop., 960 F.2d 200, 208-09 (1st Cir. 1992); see

also United States v. B & M Used Cars, 860 F.2d 121, 124 (4th Cir.

1988) ("Whether the government's decision . . . was reasonable must

be examined in light of . . . the appropriate statute.").

-22-
Additionally, the government's position may be substantially

justified even if its reasonable interpretation of its legal

obligations is not ultimately affirmed by a court. Schock, 254

F.3d at 5. The district court having concluded that the

government's litigation position was substantially justified, we

review only the government's pre-litigation position. 28 U.S.C. §

2412(d)(2)(D); Shock, 254 F.3d at 5.

2. The District Court's Decision

In focusing on the government's pre-litigation position,

the court noted that more than a year and a half had passed between

Aronov's citizenship exam and the filing of his action -- an amount

of time that exceeded by a multiple of four the statutory period

that was a prerequisite for filing an action under 8 U.S.C. §

1447(b). The court viewed this delay as unjustified because the

government had procedures in place for expediting an FBI name check

application, including issuance of a writ of mandamus. The court

concluded that "[i]t is not 'substantially justified' for the

government to force naturalization applicants to incur additional

expense -- and the courts to be burdened -- just to have

naturalization applications processed in the timely manner already

supposedly guaranteed by statute." It rejected the government's

argument that it was unable to act on Aronov's application sooner

because the FBI did not complete its background check until

September 2006.

-23-
 3. The Government's Position

The government claims that two statutes justify its

actions and inactions on Aronov's application. First, it cites 8

U.S.C. § 1446(a), which provides that "[b]efore a person may be

naturalized, an employee of the [USCIS], or of the United States

designated by the Attorney General, shall conduct a personal

investigation of the person applying for naturalization." It

asserts that because the personal investigation of Aronov required

by the statute had not been completed before he filed suit, USCIS

could not legally grant him citizenship. Second, the government

cites language included by Congress in the 1998 Appropriations Act,

which has continuing effect: "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. 105-119, Stat. 2440-2448-49

(1997) (8 U.S.C. § 1446 note) (emphasis added). It asserts that

this language prevented USCIS from taking final action on Aronov's

application before the FBI finished its background check in

September 2006, after Aronov had filed suit.

-24-
 In response, Aronov argues that neither the language of

8 U.S.C. § 1446(a) nor the 1998 Appropriations Act requires the

USCIS to undertake the comprehensive FBI name check, which the

government concedes has been the primary cause of the delay in

Aronov's proceeding. Further, he notes that the agency policy

calling for such name checks has not been codified in any

regulation. Finally, he cites a report from the USCIS's ombudsman

that raised questions about the wisdom of the USCIS policy to

require such searches, particularly in light of the significant

backlog of applicants waiting for their FBI name checks to be

completed.

Before addressing the parties' arguments, we briefly

discuss the FBI name check process and the USCIS's use of that

process for adjudicating naturalization applications.

a. The FBI's National Name Check Program

The FBI's National Name Check Program ("NNCP") was

established during the Eisenhower Administration by Executive Order

10450. The NNCP reviews information in the FBI's files to

determine whether an individual has been the subject of, or

mentioned in, any FBI investigations. NNCP provides this

information to dozens of federal, state, and foreign agencies

"seeking background information from FBI files on individuals

before bestowing a privilege -- [w]hether that privilege is

government employment or an appointment; a Green card or

-25-
naturalization; admission to the bar; or a visa for the privilege

of visiting our homeland." Foreign Travel to the United States:

Testimony Before the H. Comm. on Gov. Reform (July 10, 2003)

(statement of Robert J. Garrity, Jr., Assistant Dir., Records Mgmt.

Div., Fed. Bureau of Investigation), available at 2003 WL 21608243

(hereinafter Garrity). The NNCP also "conducts numerous name

searches in direct support of the counterintelligence,

counterterrorism, and homeland security efforts of the FBI." Id.

The USCIS commissions the FBI on a fee-for-service basis

to provide the name checks, in accordance with USCIS-defined

standards. USCIS Ombudsman, Annual Report to Congress June 2007, at 38, available at

http://www.dhs.gov/xlibrary/assets/CISOMB_Annual%20Report_2007.pdf.

The scope of these standards has expanded over time. Until late

2002, the FBI was required to search only its "main" files for

possible links between the applicant and an individual who was

previously the target of an FBI investigation. In late 2002,

however, in response to heightened security concerns after the

attacks on September 11, 2001, and an incident in which an

individual who was a member of a terrorist group was awarded

benefits, the USCIS revised its policy and began requiring more

comprehensive FBI name checks. These checks entailed a search of

the FBI's "reference" files in addition to its main investigation

files. United States Dep't of Homeland Security, Office of

Inspector General, A Review of the U.S. Citizenship and Immigration

-26-
Services' Alien Security Checks 24 n.30 (Nov. 2005), available at

www.dhs.gov/xoig/assets/mgmtrpts/OIG_06-06_Nov05.pdf; see

also Spencer S. Hsu and N.C. Aizenman, FBI Name Check Cited in

Naturalization Delays, Wash. Post, June 17, 2007, at A1.

Additionally, USCIS resubmitted 2.4 million applicant names to the

FBI for these expanded checks. As currently undertaken, the FBI

name check process entails the following:

The name is electronically checked against the
FBI Universal Indices (UNI). The searches
seek all instances of the individual's name
and close date of birth, whether a main file
name or reference. . . . The names are
searched in a multitude of combinations,
switching the order of first, last, middle
names, as well as combinations with just the
first and last, first and middle, and so on.
It also searches different phonetic spelling
variations of the names . . . .
If there is a match with a name in a
FBI record, it is designated as a 'Hit,'
meaning that the system has stopped on a
possible match with the name being checked,
but now a human being must review the file or
indices entry to further refine the names
'Hit" on. . . .
Approximately 85% of name checks are
electronically returned as having "No Record"
within 72 hours. . . . A secondary manual name
search usually identifies an additional 10% of
the requests as having a "No Record" . . . .
The remaining 5% are identified as possibly
being the subject of an FBI record. The FBI
record must now be retrieved and reviewed. If
the records were electronically uploaded into
the FBI Automated Case Support (ACS)
electronic recordkeeping system, it can be
viewed quickly. If not, the relevant
information must be retrieved from the
existing paper record.

Garrity, supra.

-27-
 Before September 11, 2001, the FBI received approximately

2.5 million name check requests per year. After the USCIS revised

its policy in 2002, that number increased. Id. For example, in

the FBI's fiscal year 2003 alone, it received over 6 million name

check requests. Federal Bureau of Investigation, National Name

Check Program, http://www.fbi.gov/hq/nationalnamecheck.htm (last

visited June 27, 2008). USCIS currently processes approximately

1.5 million applications requiring name checks annually, including

applications both for green cards and for citizenship, and 99% of

these are cleared by the FBI in less than six months. Julia

Preston, Rules Eased to Expedite Green Card Applications, N.Y.

Times, Feb. 12, 2008, at A12. Other applications, however, take

longer; approximately 140,000 USCIS applications have been held up

in the FBI's name check system for six months or longer. Spencer

S. Hsu, U.S. To Skirt Green-Card Check, Wash. Post, Feb. 12, 2008,

at A3. As of May 2007, of the about 329,000 cases pending before

USCIS, "64% were stalled [with the agency] for more than 90 days,

32% for more than one year and 17% for more than two years." Hsu

and Aizenman, supra, at A1.11

11
To help alleviate this backlog, USCIS decided in February
2008 to give preliminary approval to green card applicants for whom
an FBI fingerprint check and Interagency Border Inspection Services
check have been successfully completed and an FBI name check
request has been pending for over six months. If the eventual name
check turns up negative information, the visa will be canceled and
deportation proceedings commenced. Memorandum from Michael Aytes,
Assoc. Dir., USCIS Domestic Operations, to USCIS Field Leadership
2 ( F e b . 4 , 2 0 0 8 ) , a v a i l a b l e a t

-28-
 The FBI name check is one piece of the larger background

check that the USCIS commissions for all naturalization applicants.

In addition to the FBI name check, the agency conducts a name check

in the Interagency Border Inspection System (IBIS), "a multiagency

effort with a central system that combines information from

multiple agencies, databases and system interfaces to compile data

relating to national security risks, public safety issues and other

law enforcement concerns." Fact Sheet, USCIS Press Office, Immigration Security

Checks -- How and Why the Process Works 2 (April 25, 2006), available at

http://www.uscis.gov/files/pressrelease/security_checks_42506.pdf.

Results of an IBIS check are typically available immediately. Id.

The FBI also obtains an applicant's fingerprints in order to search

the existing criminal databases for records of arrests and criminal

convictions. The FBI typically forwards a response on the

fingerprint check to USCIS within 24 to 48 hours. Id.

b. Statutory Requirements

There is nothing in the language of 8 U.S.C. 1446(a) or

the 1998 Appropriations Act that requires USCIS to include the NNCP

in the naturalization process. Neither provision cited by the

government states explicitly that an FBI name check is required,

let alone a name check that includes an evaluation of all FBI

http://www.uscis.gov/files/pressrelease/DOC017.pdf. This change
does not apply to citizenship applicants because "revoking
naturalization is a much more difficult thing to do" than revoking
a green card. Hsu, supra, at A3 (quoting USCIS Spokesman
Christopher S. Bentley).

-29-
reference files in addition to the main files. Section 1446(a)

requires only that a "personal investigation" be conducted prior to

allowing an individual to be naturalized, while the 1998

appropriations bill limits funds to the USCIS to complete

adjudication of a naturalization application until the agency has

received FBI confirmation that a "full criminal background check"

has been completed. There is no specification in the bill beyond

this phrase. It is entirely plausible -- indeed likely -- that the

language used by Congress in the 1998 appropriations bill referred

to the FBI's criminal history check, which is an established,

preliminary step taken in the naturalization process, rather than

the FBI name check.

Importantly, the FBI name check program had already been

in place for decades at the time the statutes relied upon by the

government were enacted. If Congress intended to mandate that the

USCIS commission FBI name checks before granting naturalization

applications, it could have explicitly referenced such checks.

See, e.g., United States v. Cabrera, 208 F.3d 309, 314 (1st Cir.

2000) (examining Congress's other textual options in interpreting

the statutory language at issue). Other than an unpersuasive

reliance on the text of the statutes, the government has not

-30-
identified any evidence that Congress intended to require the FBI

name checks.12

Indeed, USCIS did not even begin requiring the full,

comprehensive FBI name checks until 2002, years after passage of

the applicable statutes. That fact confirms that the comprehensive

name checks were a result of a policy change within the agency

12
Although the government has not invoked it, a regulation
relevant to interpreting the scope of the statutory provisions at
issue does exist. In full, 8 C.F.R. § 335.2(b) reads:

Completion of criminal background checks
before examination. The Service will notify
applicants for naturalization to appear before
a Service officer for initial examination on
the naturalization application only after the
Service has received a definitive response
from the Federal Bureau of Investigation that
a full criminal background check of an
applicant has been completed. A definitive
response that a full criminal background check
on an applicant has been completed includes:

(1) Confirmation from the Federal Bureau of
Investigation that an applicant does not have
an administrative or a criminal record;

(2) Confirmation from the Federal Bureau of
Investigation that an applicant has an
administrative or a criminal record; or

(3) Confirmation from the Federal Bureau of
Investigation that two properly prepared
fingerprint cards (Form FD-258) have been
determined unclassifiable for the purpose of
conducting a criminal background check and
have been rejected.

The regulation does not assist the agency's claims because, like
the statutes, it gives no indication that a "full" criminal
background check includes an FBI name check.

-31-
after the September 11, 2001 attacks rather than a congressional

mandate.13

In sum, the statutes cited by the government did not

require USCIS to commission FBI name checks -- let alone

comprehensive ones -- before adjudicating a naturalization

application. Therefore, the "mandated by statute" rationale fails

as a substantial justification for the agency's delays in

adjudicating Aronov's application.

c. The Application of Chevron

Perhaps realizing the flaws in its statutory argument,

the government offers an alternative basis for finding that its

pre-litigation position on Aronov's naturalization application was

substantially justified. Relying on Chevron U.S.A. Inc. v. Natural

Resource Defense Council, Inc., 467 U.S. 837, 842-45 (1984), the

government asserts that we must defer to the USCIS's decisions

regarding the scope of the "personal investigation" and "full

criminal background check" of an applicant for naturalization

because Congress, pursuant to the statutes discussed above, has

13
The USCIS's recent change of policy to grant thousands of
green-card applicants permanent residency before their full FBI
name checks are completed reinforces this view. Although the
agency did not take the same step with respect to naturalization
applications, it attributed the differential treatment to the
difficulty of revising naturalization decisions, not to statutory
requirements. Hsu, supra, at A3 (citing USCIS Spokesman
Christopher S. Bentley). In so explaining the discrepancy, the
agency implicitly acknowledged that it was not prohibited by
law from extending the policy to naturalization decisions.

-32-
committed to the agency the decision-making authority on these

issues. The government argues that the agency, having concluded

that the comprehensive FBI name checks are "essential" to the

background investigations, was substantially justified in awaiting

completion of Aronov's background check before adjudicating his

naturalization application. Acknowledging that a small percentage

of name checks take a considerable amount of time to complete, the

agency asserts implicitly that those isolated delays, which are the

fault of the FBI and not USCIS, should not prevent the government

from maintaining the name check requirement as its policy and

applying to it Aronov's naturalization application. That is, the

agency argues that its general policy of requiring the name checks

excuses the delays associated with individual naturalization

applications, such as Aronov's.

Even if the government is entitled to invoke Chevron to

defend its general policy on the FBI name check process, see, e.g.,

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 its general policies does not require us

to find substantial justification in this particular instance.14

14
Aronov argues on a number of grounds that the USCIS's name
check policy is not entitled to Chevron deference. We need not
reach that question because of our conclusion that even if the
agency is entitled to Chevron deference for its policy requiring
FBI name checks, this deference does not substantially justify the

-33-
The government's eighteen-month delay in acting on Aronov's

naturalization application directly contravened § 1447(b), which

gives a district court jurisdiction to 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 [§ 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

§ 1447(b) as imposing a 120-day deadline for agency action. See

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 examination of the applicant for naturalization . . . .")

(emphasis added); see also Walji v. Gonzales, 500 F.3d 432, 439

(5th Cir. 2007) ("[B]ecause the clear intent of Congress was to

accelerate naturalization applications, and the statutory and

regulatory language gives a definite time frame for decision once

an examination has occurred, [§ 1447] is violated in situations

[where the 120-day period is not complied with].").

government's pre-litigation conduct in this particular instance.

-34-
 In addition to § 1447(b)'s specific command,15 the

Administrative Procedures Act ("APA"), 5 U.S.C. § 555(b), offers a

more general directive to agencies to resolve matters presented to

it 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, §

15
The dissent's treatment of the 120-day time frame
established by 8 U.S.C. § 1447(b) is curious. Although the dissent
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
dissent treats the statutory and regulatory time frame as merely
aspirational in nature, with no consequence for the agency if it
fails to comply. If Congress had taken such a relaxed 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).

-35-
1447(b) and 8 C.F.R. § 335.3(a)16 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.").

Without foreclosing 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 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. As a district court deciding this exact issue

has aptly stated:

But while a reasonable person would not
dispute the necessity of conducting a
background check on an applicant for
naturalization, a reasonable person would
require a satisfactory justification for a
substantial delay in completing the background
check. Indeed, government agencies are
required to conclude matters presented to them
within a "reasonable time." See 5 U.S.C. §

16
8 C.F.R. § 335.3(a) states: "A decision to grant or deny the
[naturalization] application shall be made at the time of the
initial examination or within 120-days after the date of the
initial examination of the applicant for naturalization under §
335.2."

-36-
 555(b). Otherwise, an applicant for
naturalization remains in perpetual limbo and
is by de facto, denied his citizenship, a
right that has been afforded by Congress to
deserving individuals since the rise of the
American democracy. This is particularly true
when Congress has enacted legislation
permitting the applicant to apply to federal
district court if a decision is not rendered
on the application within 120 days of the
completion of the examination under 8 U.S.C. §
1447(b). Here, Defendants offer no
justification for the delay; rather, they
merely state that "background checks were
necessary and had to be completed before the
plaintiff could be naturalized." This
explanation merely restates, in a conclusory
manner, the necessity of completing the
background check; it does not justify the
delay.

Alghamdi v. Ridge, No. 3:05cv344-RS, 2006 WL 5670940, at *14 (N.D.

Fla. Sept. 25, 2006). Although we 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.").

Indeed, despite the agency's assertions that the FBI

backlog was a significant cause of the delays in this case, the

ultimate cause of the agency's failure to comply with the law was

its own non-compliance with its regulations.17 If the agency had

17
Specifically, the agency failed to comply with 8 C.F.R. §
335.2(b). The regulation states: "The Service will notify

-37-
properly deferred conducting its initial interview of Aronov until

the FBI name check process had been completed, the statutory

obligation would not have arisen.18 In its brief, the government

has neither explained nor justified its non-compliance with 8

C.F.R. § 335.2(b) in connection with Aronov's application or that

of any other naturalization applicant.19

Therefore, the government's assertion that it was

required to wait until Aronov's FBI name check was completed before

finally adjudicating his naturalization application does not have

"a reasonable basis in law and fact." Pierce, 487 U.S. at 566 n.2.

applicants for naturalization to appear before a Service officer
for initial examination on the naturalization application only
after the Service has received a definitive response from the
Federal Bureau of Investigation that a full criminal background
check of an applicant has been completed." Id.
18
We 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.
However, this fact does not alter our legal analysis. Once USICS
gave Aronov his initial interview, it had to confront the clear
timing obligation imposed by Congress.
19
Based on a recent press release issued by USCIS on April 2,
2008, there appear to be approximately 29,800 applicants whose
naturalization applications were submitted to the FBI before May
2006 and whose interviews have already been completed. The agency
has requested that the FBI prioritize their name checks. This is
one piece of a larger, joint plan between the agency and the FBI to
eliminate the backlog of name checks. The FBI also announced its
intention to have processed all name checks pending for more than
three years by May of this year. See News Release, USCIS, USCIS and FBI
Release Joint Plan to Eliminate Backlog of FBI Name Checks (Apr. 2, 2008), available at
http://www.uscis.gov/files/article/NameCheck_2Apr08.pdf.

-38-
Indeed, the government'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."). In light of the 120-day statutory directive, the

agency's long delay (over four times the statutory period), and the

absence of any evidence that the government tried to expedite

Aronov's application to comply with the statute, 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, we conclude that

the district court did not abuse its discretion in holding that the

government's pre-litigation conduct was not substantially

justified.20

III.

For the foregoing reasons, we affirm the district court's

order granting Aronov's application for attorney's fees and

expenses under 28 U.S.C. § 2412(d)(1)(A). Additionally, we remand

the matter to the district court so that the fee award may be

20
We also conclude that the district court did not abuse its
discretion in finding that there are no "special circumstances
[that] make an award [of attorney's fees] unjust." See Schock, 254
F.3d at 4 (quoting 28 U.S.C. § 2412(d)(1)(A)).

-39-
recalculated to reflect the fees and expenses associated with this

appeal.

So ordered.

-- Dissenting Opinion Follows –

-40-
 LYNCH, Chief Judge, dissenting. With respect, I dissent.

Because the award rests on errors of law, I would reverse.

The Equal Access to Justice Act ("EAJA"), 28 U.S.C. §

2412(d)(1)(a), must be construed in favor of the United States.

Ardestani v. INS, 502 U.S. 129, 137 (1991). The Act requires a

court to award fees and expenses to a prevailing party in a civil

action against the United States 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). The purpose of the Act was to "ensure that certain

individuals . . . will not be deterred from seeking review of, or

defending against, unjustified governmental action because of the

expense involved . . . . The Act reduces the disparity in

resources between individuals . . . and the federal government."

H.R. Rep. 99-120(I), at 4 (1985); see also Scarborough v. Principi,

541 U.S. 401, 407 (2004).21

I disagree with the majority's reasoning on both prongs

of the EAJA analysis. This result contravenes the purposes of the

21
See also 131 Cong. Rec. S9991-02, 1985 WL 715613 (daily
ed. July 24, 1985) (statement of Sen. Grassley) (noting that the
purpose of the Act was to prevent "meritless" government action);
id. (statement of Sen. DeConcini) ("Before the [EAJA], small
businesses, faced with unjustified Federal agency actions, were
confronted with a difficult choice -- to comply without question to
Government regulatory enforcement which they believed improper, or
challenge the Government, often at a cost exceeding the fine or
penalty imposed.").

-41-
Act. It imposes on United States Citizenship and Immigration

Services ("USCIS") the costs of plaintiff's attorneys' fees when

the agency at all times acted in accordance with the law. It also

imposes such costs on the agency for attempting to resolve the

matter by agreement and withdrawing the issue from the court and

back to the agency so that the agency could give the relief the

plaintiff sought. It also has the practical effect of draining

resources from an agency which is already struggling to do its job.

I.

In my view, plaintiff is not a prevailing party. A party

is prevailing for EAJA purposes if there is a material alteration

in the party's position that bears a "judicial imprimatur."

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human

Res., 532 U.S. 598, 604-05 (2001). In Buckhannon, the Supreme

Court noted two specific ways in which a party can prevail: by

obtaining a judgment on the merits or a consent decree in its

favor. Id. at 605. Other circuits have read Buckhannon as

allowing parties to prevail if they receive the equivalent of a

consent decree or some other form of judicial relief that both

affects a material alteration and bears a judicial imprimatur. See

Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 23-24 (1st Cir. 2005).

This circuit has not taken a position on the issue. Id. at 23.

The majority focuses on the first situation, asking

"whether the district court's order was the functional equivalent

-42-
of a consent decree." The majority distinguishes this circuit's

decision in Smith on the ground that Smith was not concerned with

whether the orders in question were the equivalent of a consent

decree. However, as in Smith, here the question of whether the

order was the equivalent of a consent decree was not raised by

either party, nor was that the theory on which the district court

relied. Thus the issue was waived. Id. at 24 (the issue is waived

if not presented by the parties). Instead, the parties and

district court focused on the second situation: whether the

district court's order put the necessary judicial imprimatur on the

change in Aronov's legal status. The majority should not create

arguments the parties and the district court did not use, nor do so

to justify its result.

But even if the issue had not been waived, the district

court's brief order remanding the case is not the equivalent of a

consent decree. The order contains no statement incorporating an

agreement between the parties or requiring that either party act in

a particular way. All the order does is to remand the case at the

request of the agency. The order here thus differs from the ones

cited by the majority which other circuits have found to be the

functional equivalent of consent decrees. See, e.g., Carbonell v.

INS, 429 F.3d 894, 897 (9th Cir. 2005) (district court incorporated

parties' stipulation into an order); Truesdell v. Phila. Hous.

Auth., 290 F.3d 159, 162 (3d Cir. 2002) (district court order

-43-
included detailed terms of parties' settlement); Am. Disability

Ass'n v. Chmielarz, 289 F.3d 1315, 1317 (11th Cir. 2002) (parties'

settlement was "approved, adopted, and ratified" by the district

court in an order where the court expressly retained jurisdiction).

As the Supreme Court has made clear, the distinction is

material: "The situation would be quite different if the parties'

obligation to comply with the terms of the settlement agreement had

been made part of the order . . . ." Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 381 (1994). It is quite clear that

a "judge's mere awareness and approval of the terms of the

settlement agreement do not suffice to make them part of his

order." Id.

I would hold that the district court's order lacks the

necessary judicial imprimatur to entitle Aronov to prevailing party

status. Our circuit precedent in Smith requires that result. The

majority's treatment of the order as the functional equivalent of

a consent decree is inconsistent with our holding in Smith.22 That

case involved an administrative hearing officer's pre-hearing

orders, some of which were accompanied by the threat of sanctions,

which "memorialized the voluntary concessions made by [defendant]

and attempted to keep the settlement process moving forward in a

22
The majority also suggests that Smith is somehow
different because the orders in question came from an
administrative hearing officer rather than a district court, but
Smith lends no support to that proposition.

-44-
timely manner." Smith, 401 F.3d at 26. We held that these orders,

although they imposed specific requirements on defendant, did not

have sufficient judicial imprimatur to make plaintiff a prevailing

party because they simply made defendant "follow through with what

[defendant] had already voluntarily promised to do." Id. at 27.

That is exactly the case here. The district court's remand

permitted USCIS to follow through with its announced intention to

make Aronov a citizen by November 8, 2006. USCIS had voluntarily

agreed to do so before it requested the remand. As in Smith, the

remand may have kept the process moving in a timely manner, but

that is not enough to make Aronov a prevailing party. His claim

under the EAJA should have stopped there.

II.

I also disagree with the majority that the government's

pre-litigation position was not substantially justified.

The Supreme Court has interpreted the "substantially

justified" language in the EAJA: "[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 (1988);

see also, e.g., Schock v. United States, 254 F.3d 1, 5 (1st Cir.

2001); Dantran, Inc. v. U.S. Dep't of Labor, 246 F.3d 36, 40-41

-45-
(1st Cir. 2001). The government's position is substantially

justified if required by law. See Dantran, 246 F.3d at 41; United

States v. One Parcel of Real Prop. With Bldgs., 960 F.2d 200, 208-

09 (1st Cir. 1992). That was true here.

The government's position may be substantially justified

even if its reasonable interpretation of its legal obligations is

not ultimately affirmed by a court. Schock, 254 F.3d at 5. This

court earlier reversed a district court for abuse of discretion in

granting attorneys' fees when the government "was at least

reasonable" in denying a visa because it wanted to "communicate the

attitude of the United States government toward the activities of

the Soviet Union," even though the visa applicant's interpretation

of the underlying law ultimately prevailed. Allende v. Baker, 891

F.2d 7, 12, 13 (1st Cir. 1989); see also, e.g., Li v. Keisler, 505

F.3d 913, 920 (9th Cir. 2007) ("In the absence of guidance from

this court, the government's position was substantially

justified."); Bricks, Inc. v. U.S. EPA, 426 F.3d 918, 924 (7th Cir.

2005) (although EPA was unsuccessful in its attempt to show a

hydrological connection, it was still substantially justified in

doing so).

Here, the government argues that USCIS's pre-litigation

position was substantially justified because that position was

taken pursuant to federal law. In particular, the government

points to two congressional enactments with which it has complied

-46-
here. The first is 8 U.S.C. § 1446(a), which provides that

"[b]efore a person may be naturalized, an employee of the [USCIS],

or of the United States designated by the Attorney General, shall

conduct a personal investigation of the person applying for

naturalization." The second is language included by Congress in

the 1998 Appropriations Act which has continuing effect: "[D]uring

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 . . . ." Dep'ts of Commerce, Justice & State, The

Judiciary & Related Agencies Appropriations Act, 1998, Pub. L. 105-

119, 111 Stat. 2440, 2448-49 (1997) (8 U.S.C. § 1446 note)

(emphasis added).

The majority faults USCIS for interpreting the phrase

"full criminal background check" to include a FBI name check. In

the end, the award here turns on the majority's view that USCIS did

not need to include the FBI name check as part of a "full" check,

and that the agency's compliance with its name check policy renders

its pre-litigation position here (to await the results of a

requested name check) not substantially justified. But the

agency's policy and its pre-litigation decision to comply with its

policy were entirely reasonable.

-47-
 The question before us is not whether the language in 8

U.S.C. § 1446 and the 1998 Appropriations Act specifically requires

that FBI name checks be part of the background check on citizenship

applicants, but whether the agency's interpretation of these

statutes as requiring FBI name checks to fulfill its statutory

responsibilities renders its position not substantially justified.

The position is substantially justified because it was a reasonable

interpretation of a legislative command23 and that interpretation

was committed to the agency's expertise.

Principles of administrative law require that courts

defer to reasonable interpretations by agencies of matters

committed to the agency's expertise by Congress. Chevron U.S.A. v.

Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984); Global

NAPs, Inc. v. Verizon New England, 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); Global NAPs, 505 F.3d at 47;

Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st

Cir. 1997) ("[P]olicy choices are for the agency, not the court, to

23
The majority says that the government has presented no
argument that Congress intended that USCIS use the FBI name check.
That reasoning puts the cart before the horse. The broad language
used by Congress lets the agency determine how best to perform a
full criminal background check and does not limit the agency to a
particular type of check. There is no evidence, textual or
otherwise, that Congress intended to require the agency not to use
FBI name checks.

-48-
make. Even if a reviewing court disagrees with the agency's

conclusions, it cannot substitute its judgment for that of the

agency."). We also note that we are describing a consistent USCIS

interpretation and practice, not one adopted for purposes of the

issues in this attorneys' fees litigation.

USCIS, not the majority, has the expertise to determine

what should constitute a full criminal background check. The

concern that applicants be adequately vetted before they become

citizens has taken on added urgency in an age where terrorism is a

reality and a continuing threat. That the agency came to decide in

2002 that the inclusion of FBI name checks provided better full

criminal background investigations only undercuts the majority's

position.

The majority holds that although a court might ordinarily

defer to USCIS's policy of using FBI name checks to fulfill its

statutory mandate to complete background investigations on

citizenship applicants, here we cannot do so because the agency

contravened 8 U.S.C. § 1447(b). The statute permits a citizenship

applicant to file suit in federal district court if USCIS fails to

adjudicate his application within 120 days of conducting an initial

examination. The majority places great weight on this provision,

treating it as a "statutory mandate" that the agency must

adjudicate an application within 120 days of an initial

-49-
examination. That is plainly not what the statute says. It says

only that suit may be brought within 120 days of the examination.

The provision's legislative history discusses the

importance of eliminating delays but says nothing about imposing a

deadline on the agency, only that after 120 days relief can be

sought in federal court. See 135 Cong. Rec. H4539-02, 4542-43,

1989 WL 182156 (daily ed. July 31, 1989). Thus the authorization

to file suit in district court is meant to encourage the agency to

act fast, but that does not mean that Congress meant to impose a

strict deadline on the agency. Indeed, if Congress wanted to

impose a strict deadline, it could have done so directly. It is

true that the agency's regulations suggest that it treat the 120-

day provision as an internal deadline, see 8 C.F.R. § 335.3(a), but

that does not create a "statutory mandate." The statute simply

governs the timing of suits.24

Corresponding with its view that 8 U.S.C. § 1447(b)

creates a mandate, the majority suggests that the government would

24
Additionally, the cases the majority cites for the
proposition that the statute creates a deadline involved different
questions. United States v. Hovsepian, 359 F.3d 1144 (9th Cir.
2004), was concerned with the question of whether exclusive
jurisdiction rests in the district court after 120 days, and it
provided no analysis or support for its observation that § 1447(b)
"requires the INS to make a decision . . . within 120 days." Id.
at 1161. Walji v. Gonzales, 500 F.3d 432 (5th Cir. 2007), involved
the question of when the 120-day period begins to run and used the
language "the statute is violated in situations such as
[petitioner's]" in the context of supporting its conclusion that
the 120-day period applies from the time the examination, and not
the entire background check, is completed. Id. at 439.

-50-
have to make a very strong showing in order to justify missing the

120-day mark. It also faults the government for not advancing a

"particularized justification" regarding Aronov and why a name

check was necessary for him. In my view both rationales are wrong

on their own terms and both miss the point.

Even reading the statute as imposing a deadline on the

agency, the majority is nonetheless wrong because there is nothing

to say that 8 U.S.C. § 1447(b) was meant to trump the agency's

obligations to see that an applicant meets the requirements for

citizenship or to trump the agency's mandate to conduct a full

criminal background check.

Here the agency made a mistake by conducting Aronov's

initial examination before it had completed his background

investigation, including obtaining the results from the FBI of his

name check.25 Bureaucracies make mistakes. Given this mistake, the

relevant question is whether it was unreasonable for the agency to

proceed with the name check even though doing so meant that Aronov

could pursue relief in federal court because of the 120-day

provision.

I would hold that it was not unreasonable for USCIS to

miss the 120-day mark in order to complete a name check before

granting Aronov citizenship. No "particularized justification" is

25
There is no question that doing so was an error. See 8
C.F.R. § 335.2(b).

-51-
necessary because the entire point of conducting name checks is

that the government does not know what the check will uncover. As

USCIS has stated,

Although these security 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.

Moreover, as the majority points out, although USCIS

recently eliminated the name check requirement for visa applicants

in order to lessen its backlog, it has not done so for citizenship

applicants for the very sensible reason that once a person is

granted citizenship, that decision is not easily reversed. There

is nothing unreasonable about USCIS's decision to postpone a

decision on Aronov's application for citizenship until obtaining

information about whether the name check revealed risks to national

security or public safety, even if doing so meant that a decision

could not be reached within 120 days of his examination.

-52-
 Indeed, the case law also provides no basis for the award

here. USCIS's pre-litigation position in this case bears no

resemblance to pre-litigation positions that courts have found not

to be substantially justified. In Healey v. Leavitt, 485 F.3d 63

(2d Cir. 2007), the Second Circuit held that the government's pre-

litigation position was not substantially justified when the

government "failed to offer any justification for the Secretary's

failure to require [home health agencies] to provide written notice

of the termination of benefits." Id. at 67. Here the agency

points to statutes forbidding it to grant citizenship before

certain actions are taken. In Sierra Club v. Secretary of Army,

820 F.2d 513 (1st Cir. 1987), this court held that an agency's

refusal to prepare an environmental impact statement for a project

was unreasonable when there was significant evidence that the

project required one and several other federal agencies had

advocated for one and warned that one might be legally required.

Id. at 519-20 (citing Sierra Club v. Marsh, 769 F.2d 868, 874-75

(1st Cir. 1985)). Here, the agency did not act contrary to law,

but according to its reasonable interpretation of the law.

III.

The majority opinion will, in my view, have a number of

unfortunate consequences. The majority holds that the government,

by acting reasonably and requesting a remand so that it could grant

Aronov citizenship, exposed itself to liability under the EAJA

-53-
because Aronov necessarily became a prevailing party once the court

granted the remand. This will discourage USCIS from acting to

resolve these cases in a similarly efficient and amicable way in

the future. The majority also says that it would be very difficult

for the government to show that it was substantially justified in

missing the 120-day mark to act on a citizenship application. The

majority would thus discourage USCIS from conducting investigations

of applicants that could turn up important information but would

require longer than 120 days after the applicant's examination for

the agency to make a final determination. Ultimately the decision

could be contrary to the interests of applicants because in the

face of incomplete information, the agency might choose the safer

course of denying citizenship.

I respectfully dissent.

-54-