Aronov v. Chertoff

• Decision Date: 01 August 2008
• Docket Number: No. 07-1588.,07-1588.
• Citation: 536 F.3d 30
• Parties: Alexandre ARONOV, Plaintiff, Appellee, v. Michael CHERTOFF, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

536 F.3d 30

Alexandre ARONOV, Plaintiff, Appellee, v. Michael CHERTOFF, et al., Defendants, Appellants.

No. 07-1588.

United States Court of Appeals, First Circuit.

Heard February 6, 2008.

Decided August 1, 2008.

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.

Before LYNCH, Chief Judge, TASHIMA, Circuit Judge,^* and LIPEZ, Circuit Judge.

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 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 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 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 U.S. 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 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, 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. 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, 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 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.

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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (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. 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 Buckhan...