En banc 1st Cir. rejects fees in naturalization case

The en banc First Circuit held 3-2 that a panel improperly approved attorneys’ fees under the the Equal Access to Justice Act (EAJA) for a naturalization candidate based on the district court’s remand to the federal agency.

 The majority held that the plaintiff was not a prevailing party and further that, even if he was, the government’s position was substantially justified.  Aronov v. Napolitano, --- F.3d ---, 2009 WL 975836 (1st Cir. Apr. 13, 2009).

 

                Under 8 U.S.C. § 1447(b), individuals may sue Citizenship and Immigration Services (CIS) for failing to make a determination on naturalization within 120 days of the initial interview. Here, CIS violated its own regulation by conducting the interview before completing of an FBI background check. 8 C.F.R. § 335.2(b). The court characterized this mistake as an error in Aronov’s favor; he was able to sue precisely because the agency had conducted the initial interview.  Aronov sued 560 days after the interview. Within a few weeks of filing, the FBI check was complete, and the parties filed a joint motion for remand to CIS. The district court issued an order stating in full: “Electronic ORDER granting [Docket Number] 3 Joint Motion to Remand to U.S. [CIS].” The district court later characterized this order as being conditional on granting naturalization, on pain of contempt, and accordingly awarded fees. The panel affirmed, and the nation’s smallest en banc court now reverses.

 

                Because fees are not permitted if the suit was merely a catalyst for the government changing its position, Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Hum. Res., 532 U.S. 598 (2001), the critical issue here for determining whether Aronov was a prevailing party in the context of the EAJA was whether the remand order was the functional equivalent of a consent decree. The key features of a consent decree are (1) a court-ordered change in legal relationship, (2) judicial approval of relief vis-à-vis the merits, and (3) continuing judicial oversight.  The majority said that these factors must be appraised “by determining the content of the order against the entire context before the court.”

 

              The remand order here, the court said, “lacked all of the core indicia of a consent decree.” First, it “did not order USCIS to do anything.” Second, the district court “made no evaluation of the merits of the controversy”; it was not asked and could not have done so, because CIS never filed an answer, raised any defenses, or otherwise engaged on the merits. Third, the order “did not contain provisions for future enforcement typical of consent decrees,” but instead “merely returned jurisdiction to the agency to allow the parties to carry out their agreement.” Accordingly, the court said Aronov was simply trying to revive the “catalyst” theory rejected in Buckhannon.

 

               The majority further stated that CIS’s conduct was substantially justified.  According to the majority, 8 USC § 1447 does not create a statutory deadline, as other courts have assumed. Even if CIS regulations imposed such a deadline, 8 CFR § 335.3(a), that requirement was “in tension” with the requirement to complete full FBI background checks. Since CIS “has imposed regulatory requirements on itself that are in tension,” the court said, its choice “to bend the 120-day rule because the background check had not been completed” was “entirely reasonable.” Moreover, said the court, CIS was justified in “favor[ing]” full background checks over the 120-day rule because of the agency believes the checks are essential to national security.

 

               The majority distinguished Al-Maleki v. Holder, 558 F.3d 1200 (10th Cir. 2009) (summary), which upheld a fee award based on a remand order in a factually similar case.  The majority pointed out that in Al-Maleki the government filed an answer, and the district court expressly ordered CIS to grant citizenship. The majority also pointed out that it own analysis of substantial justification was based on arguments not presented to the Tenth Circuit, which treated § 1447 as establishing a deadline.

 

               The majority also stated that the EAJA, which permits fee awards against the federal government, cannot be construed as “flexibly” as other fee-shifting statutes because it is a waiver of sovereign immunity. But the court did not base its decision on this distinction, however.

 

                In dissent, Judges Lipez and Torruella argued that despite the sparse text of the remand order, the circumstances and the district court’s own later statements made clear that it was conditional, was based on an evaluation of the merits, and contemplated enforcement through contempt proceedings. Given the simple nature of this case – which concerned only whether CIS violated a deadline for one application – the court could evaluate the merits based only on the complaint and the joint remand motion, and it was natural for it to grant the motion without elaboration. In these circumstances, the order should be deemed to incorporate the remand motion, and accordingly to retain jurisdiction to enforce it. And unlike Buckhannon and like Al-Maleki, the change in legal relationship here came only after the court order.

 

                The dissenters further argued that CIS “blatantly ignore[d]” a clear statutory deadline and its own regulations, could not justify this failure via national security concerns. There was no apparent reason why CIS could not have expedited the background check, and indeed the briefs showed both that CIS routinely violates the deadline and yet is routinely able to accelerate approvals in the face of litigation. Writing separately, Judge Torruella excoriated the court for applying a “double standard” to immigrants and the government, baselessly excusing the government’s dilatoriness while strictly holding immigration petitioners to deadlines in other cases.

 

               There have been many recent fee disputes in similar cases of delay by CIS, with varying results. Compare, e.g., Othman v. Chertoff, 2008 WL 5381344 (5th Cir. 2008) (unpublished; remand with instructions to make determination by date certain did not make plaintiff a prevailing party because it did not direct a particular result); Wagner v. Chertoff,  --- F.Supp.2d ----, 2009 WL 988638 (D.Nev. Mar. 30, 2009) (no fees because remand order did not incorporate joint motion); Shalash v. Mukasey, 576 F.Supp.2d 902 (N.D.Ill. 2008) (remand order with instruction to make determination did merit fees because it was premised on finding of violation); Ghanim v. Mukasey, 545 F.Supp.2d 1146 (W.D.Wash. 2008) (fees where remand order contained explicit findings and instructions); Aarda v. USCIS, 2008 WL 974916 (D.Minn. 2008) (fees were order included instruction to make determination).  In these cases, courts reaching the issue have generally held that the government was not substantially justified in exceeding the 120-day period.

 

                While the dissenters characterize the decision in sweeping terms, it can be limited to the narrow situation where a court, without the benefit or any hearing or responsive pleadings, grants the parties’ motion for remand or dismissal without any explicit conditions, findings, provisions for enforcement, or incorporation of pleadings. To the extent that it is not dicta, the court’s substantial justification analysis is also limited because it is based on its conclusion (however erroneous) that there was no statutory violation in this case.