Aronov v. Napolitano

Decision Date13 April 2009
Docket NumberNo. 07-1588.,07-1588.
Citation562 F.3d 84
PartiesAlexandre ARONOV, Plaintiff, Appellee, v. Janet NAPOLITANO,<SMALL><SUP>*</SUP></SMALL> et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Thomas H. Dupree, Jr., Principal Deputy Assistant Attorney General, Civil Division, with whom Gregory G. Katsas, Assistant Attorney General, Civil Division, and Donald E. Keener, Deputy Director, were on brief for appellants.

Gregory Romanovsky with whom Law Offices of Gregory Romanovsky was on brief for appellee.

Anthony Drago, Jr., Anthony Drago, Jr., P.C., Marisa A. DeFranco, Devine Millimet & Branch, Howard Silverman, Ross, Silverman & Levy LLP, Jeanette Kain, Ilana Etkin Greenstein, Harvey Kaplan, Kaplan, O'Sullivan & Friedman, Paul Glickman, Ellen Sullivan, Glickman Turley, LLP, Vard Johnson, William Graves, Kerry Doyle, and Graves & Doyle on brief for American Immigration Lawyers Association, amicus curiae.

Before LYNCH, Chief Judge, TORRUELLA, BOUDIN, LIPEZ, and HOWARD, Circuit Judges.

OPINION EN BANC

LYNCH, Chief Judge.

This case concerns the standards for an award of attorneys' fees against an agency of the United States under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A). The Act requires such an award for a successful litigant who meets the particularized standards for being a "prevailing party," when the government's position, either before or after suit was filed, was not substantially justified, and provided that the award of fees would not otherwise be unjust. Id.; see also generally Smith v. Fitchburg Pub. Sch., 401 F.3d 16 (1st Cir.2005).

Alexandre Aronov, an applicant for citizenship, sued the U.S. Citizenship and Immigration Service ("USCIS"), which immediately entered into a voluntary settlement and never filed a responsive pleading. Instead the parties filed a joint motion to remand. The district court issued a one-line order granting the joint motion to remand and terminating the case. No hearing was ever held by the district court. The order remanded to the USCIS, which swore in Aronov as a citizen on November 8, 2006, as it had represented in the joint motion that it would do.

Aronov, newly a citizen, then filed an application for fees and costs under the EAJA, which the district court granted in the sum of $4,270.94, over the opposition of the USCIS. The USCIS appealed. The award was originally upheld by a panel, over a dissent.

The USCIS sought en banc review, arguing that the panel decision, if left standing, would have dangerous systemic consequences far beyond this case. The precedent would "create[] an enormous incentive for individuals frustrated with delays in the naturalization process to file mandamus lawsuits in this Circuit; [and would] create[] an enormous disincentive for the agency to settle these cases by agreeing to grant naturalization." It argued the panel decision was contrary to law and "undermine[d] the uniform judgment of both Congress and the agency that background checks are critical to insuring public safety and national security." While the sum awarded in this case might be small, it said, the potential economic consequences were quite large. This court granted en banc review.1

We now reverse the award of fees and order dismissal of Aronov's EAJA application with prejudice on the two separate and independent grounds that he was not a prevailing party and that, whether or not he met the prevailing party requirement, USCIS's position in requiring an FBI name check was substantially justified. The key question is not whether a court ultimately agrees with the agency's reading of its legal obligations but whether the agency's position was substantially justified.

I.

Aronov's suit, filed on August 28, 2006, was brought under 8 U.S.C. § 1447(b), which allows an applicant for citizenship to seek relief in federal district court if the USCIS does not act on the application within 120 days of his or her citizenship interview examination. Section 1447(b) provides in full:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the [USCIS] to determine the matter.

8 U.S.C. § 1447(b).

There are no disputed facts. Aronov, a native of Russia and permanent U.S. resident since 2001, submitted an application for citizenship to the USCIS on May 22, 2004. On February 14, 2005, a USCIS officer examined Aronov before the agency received a full FBI background check for him, contrary to USCIS regulations. The officer informed him that his application could not be approved until additional security checks were completed.

The USCIS erred by examining Aronov prematurely. By regulation, the agency may not schedule an interview, which starts the 120-day clock for filing suit under § 1447(b), until a full FBI background check for the applicant is complete. See 8 C.F.R. § 335.2(b) (the USCIS will schedule interviews "only after [it] has received a definitive response from the [FBI] that a full criminal background check of an applicant has been completed"). Mistakes happen. Nevertheless, the error was harmless2 and accrued to Aronov's benefit. The early interview meant he was immediately eligible for citizenship upon successful completion of the FBI background check and, under the literal terms of § 1447(b), was able to bring suit if the agency did not act on his application within 120 days.

On March 23, 2006, the USCIS sent Aronov written notice that additional review of his case was necessary and asked Aronov to contact the agency if he did not receive a notice of action within six months.

Instead, Aronov sued. The USCIS did not file a responsive pleading. On October 6, 2006, Aronov and the government, having settled the case, filed a Joint Motion for Remand, stating that "USCIS ha[d] completed its review of plaintiff's application for naturalization and, if jurisdiction [were] returned to the agency, [USCIS] would grant the application and schedule plaintiff's oath ceremony for no later than November 8, 2006" and requesting that the court "remand the matter to USCIS so that it [could] grant plaintiff's application for naturalization, and schedule plaintiff's oath ceremony for no later than November 8, 2006." Except on paper, the parties did not even appear before the court, there were no hearings and no representations were made about the parties' negotiations or the history of the matter. On October 12, 2006, the court entered an electronic order,3 which stated in full:

Electronic ORDER granting [Docket Number] 3 Joint Motion to Remand to U.S. Citizenship and Immigration Services.

That remand order forms the basis for the EAJA award at issue. By order dated January 30, 2007, the district court awarded fees on the basis that its order was a remand to the agency to do something and so met the judicial imprimatur requirement. The government, it found, unjustifiably delayed the petition, forced Aronov to file his action, and allowed for expedition only after mandamus was filed.

II.

The EAJA provides in relevant part:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

The purpose of the Act is "to ensure that certain individuals ... will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved." Scarborough v. Principi, 541 U.S. 401, 407, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (quoting H.R.Rep. No. 99-120(I), at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 132-33). The EAJA "reduces the disparity in resources between individuals ... and the federal government." H.R.Rep. No. 99-120(1), at 4, 1985 U.S.C.C.A.N. at p. 133.

Two issues are raised: (1) whether Aronov met the "judicial imprimatur" requirement of the "prevailing party" test; and (2) whether the USCIS has met its burden of showing that it did not act unreasonably.

We review a district court's determinations under the EAJA for abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 558-59, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Schock v. United States, 254 F.3d 1, 4 (1st Cir.2001). An error of law is an abuse of discretion. Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir.2003); see also Atl. Fish Spotters Ass'n v. Daley, 205 F.3d 488, 491 n. 2 (1st Cir.2000). Whether a party is a prevailing party is itself a legal determination subject to de novo review. Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1021 (Fed. Cir.2005); Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir.2002). The district court's award rests on errors of law.

The EAJA is a departure from the traditional "American rule" that parties must ordinarily bear their own attorneys' fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Importantly, the EAJA is not simply a fee shifting statute. The EAJA is also a waiver by the government of its sovereign immunity and so must be construed strictly in favor of the government. Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991). Whatever flexibility there may be in interpreting fee shifting statutes involving awards against parties other than the...

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