Cody v. Caterisano

• Decision Date: 13 January 2011
• Docket Number: No. 09–2166.,09–2166.
• Citation: 631 F.3d 136
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Andrew Peter CODY, Midshipman First Class, Petitioner–Appellant,v.Richard CATERISANO, District Director, Baltimore District Office U.S. Citizenship & Immigration Service; Michael Aytes, Acting Director, U.S. Citizenship & Immigration Service; Janet Napolitano, Secretary, U.S. Department of Homeland Security; Eric H. Holder, Jr., Attorney General, U.S. Department of Justice; Rod J. Rosenstein, U.S. Attorney, Defendants–Appellees.

631 F.3d 136

Andrew Peter CODY, Midshipman First Class, Petitioner–Appellant,

v.Richard CATERISANO, District Director, Baltimore District Office U.S. Citizenship & Immigration Service; Michael Aytes, Acting Director, U.S. Citizenship & Immigration Service; Janet Napolitano, Secretary, U.S. Department of Homeland Security; Eric H. Holder, Jr., Attorney General, U.S. Department of Justice; Rod J. Rosenstein, U.S. Attorney, Defendants–Appellees.

No. 09–2166.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2010.Decided: Jan. 13, 2011.

ARGUED: Douglas J. Behr, Keller & Heckman, Washington, D.C., for Appellant. Jason Daniel Medinger, Office of the United States Attorney, Baltimore, Maryland, for Appellees. ON BRIEF: Mary E. Pivec, Keller & Heckman, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellees.Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and BOBBY R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.Affirmed by published opinion. Senior Judge BALDOCK wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.

OPINION

BALDOCK, Senior Circuit Judge:

Petitioner Andrew Peter Cody asks us to reverse the district court's denial of his petition for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(a), because the Government's position was not substantially justified or, in the alternative, to remand for the district court to explain its rationale for denying the petition. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

The facts in this case are undisputed. Petitioner, an Irish national, was nominated by the Republic of Ireland to attend the United States Naval Academy (“the Academy”) in 2005. A few days after nominating him, the Irish government indicated it was unable to fund Petitioner's attendance at the Academy. Petitioner then secured private funding and attended the Academy. Because Ireland did not fund his attendance, Petitioner had no obligation to serve in the Armed Forces of the Republic of Ireland after graduating from the Academy. Petitioner's situation is, apparently, unique. It seems all other foreign nationals who attend or have attended the Academy are obligated to return and serve in the armed forces of their home countries. See 10 U.S.C. § 6957(a)(3) (providing that when the Secretary of the Navy permits foreign nationals to attend the Academy, the Secretary “shall give a priority to persons who have a national service obligation to their countries upon graduation from the Academy.”).

By all accounts, Petitioner was a model midshipman who served honorably and received many awards. Wishing to become a citizen of the United States so he could serve as a commissioned officer in the United States Navy after graduation in May 2009, Petitioner filed an N–400 application for naturalization in March 2008. He claimed eligibility for citizenship under Section 329 of the Immigration and Nationality Act, 8 U.S.C. § 1440, which provides, in relevant part:

Any person who, while an alien or a noncitizen national of the United States, has served honorably ... in an active-duty status in the ... naval forces of the United States ... during any ... period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force ... may be naturalized as provided in this section if (1) at the time of enlistment ... such person shall have been in the United States.... The executive department under which such person served shall determine whether persons have served honorably in an active-duty status.

Id. § 1440(a). On July 3, 2002, President George W. Bush issued an executive order declaring the period beginning on September 11, 2001, to be a period in which the Armed Forces of the United States were engaged in armed conflict with a hostile foreign force. Exec. Order No. 13269, 3 C.F.R. 241 (2003), reprinted in 8 U.S.C. § 1440 app. at 415 (2006). That period of hostilities remains ongoing.

As proof of his eligibility under Section 329, Petitioner executed a Form N–426. On this form, Assistant Registrar Barbara S. Meeks certified that Petitioner entered active duty at the Academy on June 25, 2005. Joint Appendix (J.A.) at 19–20. In April 2008, United States Citizenship and Immigration Services (USCIS) requested another Form N–426, explaining that the one initially submitted failed to state whether Petitioner was serving honorably. J.A. at 95. Accordingly, Meeks promptly completed another Form N–426, certifying that Petitioner was serving honorably. J.A. at 134–135.

Petitioner appeared for his naturalization exam in August 2008. Though he passed the tests for English and United States history and government, Petitioner was told a decision could not yet be made about his application. J.A. at 119. In December 2008, USCIS issued a notice of continuance and requested additional documentation confirming Petitioner's active duty status. In January 2009, Petitioner provided his military service contract. This contract, countersigned by the Navy, evidenced Petitioner's commitment to serve as a commissioned naval officer upon graduation. Petitioner also provided a letter from Captain C.N. Morin, Deputy Assistant Judge Advocate General, indicating his office's legal opinion that “attendance at the U.S. Naval Academy constitutes ‘active duty’ service” and “the N–426 certification of ‘active duty’ status is conclusive evidence of such service.” J.A. at 108.

With no action on his application forthcoming, in March 2009, Petitioner filed the underlying immigration action against Defendants Richard Caterisano, Michael Aytes, Janet Napolitano, Eric H. Holder, Jr., and Rod J. Rosenstein (collectively “the Government”) pursuant to 8 U.S.C. § 1447, which provides in relevant part:

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 Service to determine the matter.

Id. § 1447(b). As the district court noted, both parties agree that USCIS did not make a determination regarding Petitioner's application before the 120–day period expired.

Shortly after the complaint was filed, the Government moved to remand the action to USCIS. Petitioner moved for summary judgment. Two days before the Government filed its cross-motion for summary judgment, it obtained another Form N–426. This form, certified by Captain K.L. Fischer–Anderson, Staff Judge Advocate to the Superintendent of the Academy, stated: “Applicant never entered onto active duty with U.S. Navy.” J.A. at 250. The Government also included Fischer–Anderson's affidavit stating that Meeks committed an administrative error when she certified that Petitioner had served on active duty based on his attendance at the Academy. J.A. at 247. In the affidavit, Fischer–Anderson also stated: “[T]he USNA hereby rescinds and nullifies the previously-signed Form N–426.” J.A. at 247–48.

The Government contended the later Form N–426 was controlling on the question of Petitioner's active duty status, but the court disagreed and concluded that because the Navy issued conflicting Forms N–426, it would make an independent determination of Petitioner's active duty status. Despite the Government's concerns that certifying Petitioner as serving on active duty at the Academy would create a precedent applicable to other foreign national midshipmen, the district court proceeded to evaluate Petitioner's status. The court reasoned that Petitioner “has done everything required of midshipmen who are United States citizens and has served honorably ...; he has received certifications, other letters of support, and a legal opinion documenting his active-duty status”; and he has “been ‘constructively inducted’ into active-duty in the Navy based on his rank of ‘midshipman’ and his performing the duties of a service member.” J.A. at 391. The court rejected the Government's contention that Petitioner was never inducted into the Navy because he took the Oath of Compliance administered to foreign nationals rather than the Oath of Office, explaining it did not think the form of oath was critical and declining to address the effect of either oath. J.A. at 391 n. 4. The district court concluded Petitioner was eligible for naturalization, ordered Petitioner to appear before it to take his oath of allegiance, and ordered USCIS to issue a Form N–550 Certificate of Citizenship to Petitioner. J.A. at 394–96. The Government did not appeal.

Petitioner then moved for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA), which 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.

Id. § 2412(d)(1)(A). The “ ‘position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.” Id. § 2412(d)(1)(D)(2)(D). Petitioner argued the Government's position was not substantially justified because USCIS was...