Alexandre ARONOV, Plaintiff, Appellee, v. Janet NAPOLITANO, et al., Defendants, Appellants, 562 F.3d 84

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. 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 harmless 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 plaintiffs application for naturalization and, if jurisdiction [were] returned to the agency, [US-CIS] would grant the application and

schedule plaintiffs oath ceremony for no later than November 8, 2006” and requesting that the court “remand the matter to USCIS so that it [could] grant plaintiffs application for naturalization, and

schedule plaintiffs 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, which stated in full: Electronic ORDER granting [Docket Number] S 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(1), 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 United States, such flexibility does not exist as to EAJA applications. See Lehman v.

Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (“[Limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957))). A. The Judicial Imprimatur Standard Under the Prevailing Party Requirement of the EAJA We hold as a matter of law that Aronov is not a prevailing party under the order entered by the district court.

The Supreme Court set the general standards for defining the term “prevailing party” in federal attorneys’ fees shifting statutes in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), a case concerned with fee statutes other than the EAJA. Buckhannon sets the minimum standards for prevailing party status under the EAJA. “[T]he Supreme Court’s reasoning in ‘Buckhannon is presumed to apply generally to all fee-shifting statutes that use the prevailing party terminology.’” Smith, 401 F.3d at 22 n. 8 (quoting Doe v.

Boston Pub. Sch., 358 F.3d 20, 25 (1st Cir.2004)) (internal quotation marks omitted); accord Ma v. Cherboff, 547 F.3d 342, 344 (2d Cir.2008) (per curiam) (collecting cases). “[T]he term ‘prevailing party’ [is] a legal term of art.” Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835. To be a prevailing party, a party must show both a “material alteration of the legal relationship of the parties,” id. at 604, 121 S.Ct. 1835 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)), and a “judicial imprimatur on the change,” id. at 605, 121 S.Ct. 1835.

Both terms are illuminated by the potential meanings Buckhannon rejected: the Supreme Court held that mere success in accomplishing a party’s objectives is insufficient to be a prevailing party for a fee award. Buckhannon, 532 U.S. at 606, 121 S.Ct. 1835. The Court rejected the “catalyst” theory which had been accepted by many circuits, including this one. The Court noted that use of the catalyst theory would have the adverse effect of discouraging the government from voluntarily settling cases (pre-suit or post-suit).

See id. at 608, 121 S.Ct. 1835 (noting the “disincentive that the ‘catalyst theory’ may have upon a defendant’s decision to voluntarily change its conduct”). The Court stated that its plain language approach served the purpose of providing a clear formula allowing for ready administrability and avoiding the result of a second major litigation over attorneys’ fees. See id. at 609-11, 121 S.Ct. 1835.

Buckhannon explicitly identified two and only two situations which meet the judicial imprimatur requirement: where plaintiff has “received a judgment on the merits,” which does not apply here, or “obtained a court-ordered consent decree.” Id. at 605, 121 S.Ct. 1835. The Court was clear that “settlement agreements enforced through a consent decree” may be the basis for fee awards and the resulting change in the legal relationship between the parties must be “court-ordered.” Id. at 604, 121 S.Ct. 1835 (emphasis added).

The change in the legal relationship must be a “judicially sanctioned change.” Id. at 605, 121 S.Ct. 1835. Notably, Buckhannon, which affirmed the judgment of the Fourth Circuit in denying fees, did not adopt that portion of the Fourth Circuit rule which permitted an award of fees for a “settlement giving some of the legal relief sought” in addition to fees for an “enforceable judgment [or] consent decree.” Id. at 602, 121 S.Ct. 1835. The order here was plainly not a judgment on the merits, nor was it labeled a “court-ordered consent decree.” That, however, does not end the matter.

We agree with other circuits that the formal label of “consent decree” need not be attached; it is the reality, not the nomenclature which is at issue. Sometimes the question has been phrased in terms of whether a given court order is the “functional equivalent of a consent decree”; the better articulation may be to ask whether the order contains the sort of judicial involvement and actions inherent in a “court-ordered consent decree.” The district court did not allow EAJA fees on the basis that the order it entered was the equivalent of a consent decree.

Rather, it said in its award order that it entered the award on the ground that it had entered an order compelling the agency to take action, which it thought was sufficient to support an award. Indeed, Aronov never argued to the district court that this situation was so like a consent decree as to constitute the requisite judicial imprimatur. Nonetheless, the consent decree theory is the primary grounds now asserted, and the parties have addressed the issue to the en banc court. We bypass his waiver and address the argument.

The Supreme Court has described what it meant by a “court-ordered consent decree.” It distinguished such consent decrees from “private settlements” (as to which fees may not be awarded), saying “[pjrivate settlements do not entail the judicial approval and oversight involved in consent decrees.” Id. at 604 n. 7, 121 S.Ct. 1835.

Buckhannon contrasted final judgments on the merits and court-ordered consent decrees with situations which failed to meet the judicial imprimatur test: for example, securing the reversal of a directed verdict, acquiring a judicial pronouncement that a defendant has violated the Constitution unaccompanied by “judicial relief,” or obtaining a nonjudicial “alteration of actual circumstances.” Id. at 605-06, 121 S.Ct. 1835. The Court emphasized three related factors. The first was that the change in legal relationship must be “court-ordered.” See id. at 604, 121 S.Ct. 1835.

Second, there must be judicial approval of the relief vis-a-vis the merits of the case. Buckhannon cited Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 381, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), which held a “judge’s mere awareness and approval of the terms of the settlement agreement do not suffice to make them part of his order.” Third, there must be judicial oversight and ability to enforce the obligations imposed on the parties. See Buckhannon, 532 U.S. at 604 n. 7, 121 S.Ct. 1835 (noting that judicial oversight is inherent in consent decrees but not in private settlements).

These factors from Buckhannon are themselves, not surprisingly, contained in the law of consent decrees. A consent decree “embodies an agreement of the parties,” that they “desire and expect will be reflected in, and be enforceable as, a judicial decree.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)); see also Ricci v. Patrick, 544 F.3d 8, 17 (1st Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1907, — L.Ed.2d -, 2009 WL 229763 (Apr. 6, 2009).

As the Fourth Circuit noted in Smyth: A consent decree, because it is entered as an order of the court, receives court approval and is subject to the oversight attendant to the court’s authority to enforce its orders, characteristics not typical of settlement agreements. [.Buckhannon ]’s admonition that consent decrees may satisfy the prevailing party standard while private settlements ought not be so construed is thus consistent with the general purposes and effects of the two forms of resolution of disputes. Smyth, 282 F.3d at 281. Court approval of a consent decree must involve some appraisal of the merits.

See id. at 279. By contrast, a private settlement does not, ordinarily, receive court approval. Id. at 280. A court entering a consent decree must examine its terms to be sure they are fair and not unlawful. See id.; see also T.D., 349 F.3d at 479 (“Mere involvement [by the court] in a settlement ... is not enough. There must be some official judicial approval of the settlement.”). As an example, the Third Circuit held in John T. ex rel. Paul T. v.

Delaware County Intermediate Unit, 318 F.3d 545, 558-60 (3d Cir.2003), that neither a preliminary injunction nor a contempt order based on that injunction contained the necessary judicial imprimatur because neither had required the court to weigh the merits of the underlying dispute. Further, an obligation to comply and the provision of judicial oversight to enforce that obligation are the sine qua non for a consent decree. See Smyth, 282 F.3d at 279-81; see also Roberson, 346 F.3d at 82-83; Am. Disability Ass’n, 289 F.3d at 1320.

While a consent decree begins as a settlement, it is one that “includes an injunction, or some other form of specific relief,” which may ultimately be enforceable by contempt. Charles A. Wright & Mary Kay Kane, Law of Federal Courts § 98, at 702 n. 2 (6th ed.2002). This means enforcement through an action for breach of contract, which may be available in a private settlement, is insufficient to meet the standards for a consent decree. See Christina A. ex rel. Jennifer A. v.

Bloomberg, 315 F.3d 990, 993 (8th Cir.2003). “The parties to a consent decree expect and achieve a continuing basis of jurisdiction to enforce the terms of the resolution of their case in the court entering the order.” Smyth, 282 F.3d at 280. A private settlement agreement, by contrast, does not require the same level of judicial oversight. Another characteristic of the judicially approved obligations in a consent decree is that a party seeking to modify a consent decree must meet a significant burden to demonstrate that circumstances have changed to a degree that justifies a modification.

See generally Rufo, 502 U.S. at 378-83, 112 S.Ct. 748; see also Fed. R.Civ.P. 60(b). This is so because, by its nature, a consent decree contemplates a court’s continuing involvement in a matter. Application of these principles necessarily results in the conclusion the order entered here did not meet the judicial imprimatur standards for a prevailing party. Whether an order contains a sufficient judicial imprimatur can only be determined by determining the content of the order against the entire context before the court. The order here lacked all of the core indicia of a consent decree.

The court did not order USCIS to do anything. The court made no evaluation at all of the merits of the controversy — indeed the court was never asked to do so; it was only asked to dismiss the case. There was no basis on which the court could evaluate the merits because the US-CIS never filed an answer, never raised the potential defenses it had, and there never was an engagement of any sort on the merits for the district court to consider. Further, the order itself did not contain provisions for future enforcement typical of consent decrees.

See Kokkonen, 511 U.S. at 381, 114 S.Ct. 1673; Saccoccia, 433 F.3d at 28. The order also did not resolve a dispute between the parties, it merely returned jurisdiction to the agency to allow the parties to carry out their agreement. Indeed, the order would not create prevailing party status under the tests adopted by any of the circuits. See, e.g., Davy, 456 F.3d at 165-66; Rice Servs., 405 F.3d at 1027; T.D., 349 F.3d at 478; Roberson, 346 F.3d at 81; Truesdell, 290 F.3d at 165; Am. Disability Ass’n, 289 F.3d at 1320-21; Smyth, 282 F.3d at 276.

Aronov’s argument is also inconsistent with Smith, which held that the fact that the defendant has voluntarily agreed to change its behavior does not lead to prevailing party status for the plaintiff. A plaintiff does not become a prevailing party if the court merely recognizes what the government has voluntarily agreed to and only “requir[es] [the government] to follow through with what [it] had already voluntarily promised to do.” Smith, 401 F.3d at 27.

Aronov makes a separate argument that a remand to the agency was necessary so that citizenship could be granted, and that this suffices to make him a prevailing party. We need not resolve the question of whether the agency could have acted without the remand, as it does not matter to our resolution of the judicial imprimatur issue. The order remanding to the agency is alone not enough to establish the needed imprimatur. See, e.g., Rice Seros., 405 F.3d at 1025 (under the EAJA, securing a remand order alone is insufficient; the claimant must secure relief on the merits); see also Envtl. Def. Fund, Inc. v.

Reilly, 1 F.3d 1254, 1257-58 (D.C.Cir.1993) (same, applying Resource Conservation and Recovery Act). Aronov’s argument is simply an effort to revive the “catalyst theory,” which the Supreme Court has rejected. B. Substantial Justification Even if the court order in this case had the attributes of a consent decree, the remaining condition for an EAJA award has not been met. We also hold as a matter of law that the government has met its burden to show its pre-litigation actions or inactions which led to this suit were substantially justified.

An action is “substantially justified” if “it has a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541. The government’s conduct must be “justified to a degree that could satisfy a reasonable person.” Id. at 565, 108 S.Ct. 2541; see also Schock, 254 F.3d at 5. The government need only have “a reasonable basis both in law and in fact for its position.” De Allende v. Baker, 891 F.2d 7, 12 (1st Cir.1989); see also United States v. Yoffe, 775 F.2d 447, 449 (1st Cir.1985).

Importantly, for EAJA purposes, the position of a government agency can be substantially justified even if a court ultimately determines the agency’s reading of the law was not correct. Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541 (“[A] position can be justified even though it is not correct, and we believe it can be substantially ... justified if a reasonable person could think it correct.”). The government’s position as to what the law requires may be substantially justified even if its

interpretation of its legal obligations is not ultimately affirmed by a court. Schock, 254 F.3d at 5. In De Allende, we held that the district court abused its discretion in awarding attorneys’ fees under the EAJA when the government was “at least reasonable” in denying a visa, even though the applicant’s

interpretation of the underlying law ultimately prevailed. De Allende, 891 F.2d at 12, 13; see also Li v. Keisler, 505 F.3d 913, 920 (9th Cir.2007) (holding, under the EAJA, that “[i]n the absence of guidance from this court, the government’s position was substantially justified”); Trahan v. Brady, 907 F.2d 1215, 1219-20 (D.C.Cir.1990) (finding substantial justification where government acted in response to what it reasonably, though incorrectly, believed was its statutory obligation).

And of course, if the agency reasonably believes the action or inaction is required by law, then, by definition it cannot be the basis for an award of EAJA fees. See Dantran, Inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 41 (1st Cir.2001) (the government’s pre-litigation conduct of initiating a debarment procedure was substantially justified because it was required to do so by statute). Aronov’s argument rests on a fundamental misapprehension of what substantially justified means.

His argument is addressed to why he thinks the agency is not legally “right” in its position and not to whether the USCIS position was substantially justified, a different question. The test is whether a reasonable person could think the agency position is correct. Pierce, 487 U.S. at 566 n. 2, 108 S.Ct. 2541. While we think the agency was “right” in how it handled the matter, the substantial justification analysis does not hinge on whether the agency was right or wrong but on whether its actions were reasonable. Aronov concedes no case flatly held the law required the agency to adopt his position.

Nonetheless, he argues the position was unreasonable because no statute mandates USCIS to use the backlogged FBI name check, and that § 1447(

b) establishes a “statutory deadline” of 120 days after the interview to grant or deny citizenship, and so violation of the deadline means the government’s position was not substantially justified. The decision by the agency not to grant Aronov citizenship until his background check was completed, even if that exceeded 120 days, stemmed from two statutory mandates under which the agency must operate. First, 8 U.S.C. § 1446(

a) provides that “[bjefore a person may be naturalized, an employee of [the USCIS] ... shall conduct a personal investigation of the person applying for naturalization.” Second, in a budgetary statute that has continuing effect, Congress provided that “none of the funds appropriated or otherwise made available to the [USCIS] shall be used to complete adjudication of an application for naturalization unless the [USCIS] has received confirmation from the [FBI] that a full criminal background check has been completed.” Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub.L.

No. 105-119, 111 Stat. 2440, 2448-49 (1997) [hereinafter 1997 Appropriations Act]. These are statutory commands the agency could not ignore. Aronov’s argument is that the phrase “confirmation from the [FBI] that a full criminal background check has been completed” did not require the USCIS or the FBI to include an FBI name check in that process.

While it might have been reasonable, he argues, to require the FBI name check if it could have been completed within 120 days, it was not reasonable to do so if that name check requirement virtually guaranteed that the application process would take longer than 120 days to complete. It is true that Congress did not define for the agency what a full criminal background check was. Congress chose to let the USCIS, with its particular expertise, decide the content of that “confirmation from the [FBI][of] a full criminal background check.” 1997 Appropriations Act, 111 Stat. at 2448-49.

That delegation to USCIS is entirely sensible for a number of reasons, including the sometimes rapidly evolving law enforcement technologies. The USCIS decided in 2002 that the inclusion of FBI name checks provided better full criminal background investigations. It reached this conclusion after the terrorist attacks of September 11, 2001 and after it discovered .that deficiencies in its previous screening process had resulted in the grant of naturalization to a man suspected of ties to the terrorist group Hezbollah. See S.S. Hsu & N.C. Aizenman, FBI Name Check Cited .in Naturalization Delays, Wash.

Post, June 17, 2007, at Al. Also, Congress used the word “full” criminal background check, which supports the choice of the commonly used FBI name checks.

Further, Congress has since essentially endorsed the USCIS’s choice to use FBI name checks as part of the required crimi-' nal background check when, in 2007 (after the delay in this case), it addressed the delays by appropriating $20 million to US-CIS to “address backlogs of security checks associated with pending applications and petitions” provided that the agency submitted a plan to eliminate the backlogs and ensure that the agency “has the information it needs to carry out its mission.” Consolidated Appropriations Act of 2008, Pub.L. No. 110-161, div. E; tit. IV, 121 Stat. 1844, 2067 (Dec. 26, 2007).

Congress chose not to prohibit the use of the FBI name check, but rather provided funding to expedite the process USCIS had chosen. The agency’s, and the FBI’s, choices to use name checks were clearly within their legal authority and were reasonable. Principles of administrative law require that courts defer to reasonable

interpretations by an agency on matters committed to the agency’s expertise by Congress. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Global NAPS, Inc. v. Verizon New Eng., 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, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v.

Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Global NAPS, 505 F.3d at 47; Associated Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). Once the USCIS made that choice, it acted under the requirements of law — its own regulations — in awaiting the full background check. Aro-, nov argues the agency was not permitted to make that choice because it was mandated by statute, § 1447(b), to complete all checks within 120 days. In its briefing to this court, USCIS has taken the position that the statute does not impose a flat 120-day deadline to grant citizenship.

The agency argues that the plain text of the statute says only that if the agency fails to make a determination of citizenship within the 120-day period after the interview, “the applicant may apply to the United States district court” for it to “determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.” 8 U.S.C. § 1447(b). The agency also supports its reading with a reference to the Congressional history. See 135 Cong. Rec. H4539, H4542-43, 1989 WL 182156 (daily ed.

July 31, 1989) (legislative history of § 1447(b)’s 120-day provision) (discussing the importance of addressing delays but making no mention of a deadline on the agency). If the statute is read literally, as the USCIS argues, the agency could reasonably believe it does not violate the statute by not acting within 120 days on the grounds that the statute does not command it to act within the deadline. Cf. United States v.

James Daniel Good Real Prop., 510 U.S. 43, 63, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (holding that dismissal of government’s forfeiture action for failure to follow statutory timing guidelines was unwarranted because “if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction”). Aronov replies that even if the statute does not set a deadline of 120 days, the agency by regulation has.

See 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....”). That regulation should, of course, be read in the context of the regulations defining when an initial determination may take place. Aronov was mistakenly given a premature initial examination. See id. § 335.2(b).

Even were the agency’s views wrong as to the requirement for FBI name checks and as to whether the statute and/or regulation imposed a flat 120-day deadline, its views were still substantially justified. Neither the Supreme Court nor this court has ever held that FBI name checks are not required as part of full FBI background checks or that § 1447 imposes an absolute time limit for granting citizenship regardless of whether the name check is completed..

At most, then, this is a situation in which an agency has imposed regulatory requirements on itself that are in tension, and the solution it chose, to bend the 120-day rule because the background check was not completed, is entirely reasonable. Independently, the choice by USCIS to favor national security in requiring a full check of the background of a citizenship applicant over a self-imposed 120-day deadline, regardless of whether the interview was prematurely granted here, cannot be unreasonable.

As the USCIS has stated: Although [FBI name 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-ResponseOmbudsman-06-Report-May-2007.pdf. It is not unreasonable for the agency to require greater certainty when deciding whether to grant citizenship. See Alexander v. INS, 74 F.3d 367, 370 (1st Cir.1996) (“[T]he right in question — American citizenship — is one of the most precious imaginable.”).

Indeed, the importance of the greater certainty that the name check provides is highlighted by the agency’s choice in 2007 to address the backlog problem by distinguishing between applicants for residency and applicants for citizenship — USCIS grants residency to applicants if their cases were otherwise complete but their name checks remained pending over 180 days from the date of the initial request. See USCIS Interoffice Memorandum, Revised National Security Adjudication and Reporting Requirements (Feb. 4, 2008), available at http://www.useis.gov/files/ pressrelease/DOC017.PDF.

The agency reasonably concluded that, if the name checks turned up negative information about applicants, it could initiate removal proceedings against those granted residency while it would have much more difficulty proceeding against those granted citizenship. See S.S. Hsu, U.S. to Skirt Green-Card Check, Wash. Post, Feb. 12, 2008, at A3 (citing statement by USCIS spokesperson Christopher S. Bentley). Aronov advances one more reason why, in his view, the agency had been unreasonable.

He argues that the USCIS had created a system for giving priority to certain applicants, under which the agency would request the application be expedited if, for example, the applicant were facing military deployment. One of the official factors is whether the applicant has filed an action for mandamus. Aronov says that this has created an incentive system which requires candidates to sue to get priority in having FBI name checks done, which unreasonably forces applicants to sue.

As the USCIS points out, the logic of this argument is to impose EAJA fees on it in the numerous instances it has benefitted an applicant by giving priority to the applicant’s name check. The reasoning assumes there is some right in the applicant to priority, but there is no statutory right, given to Aronov or anyone else, to jump the queue. And the agency’s choice to give priorities to the categories it selected was a rational allocation of resources, which must be spent on litigation if the agency does not work out a voluntary solution.

For the same reasons, Aronov’s argument that he should be given fees against the FBI if not the US-CIS fails. III. The order awarding attorneys’ fees is reversed and the application for fees is ordered dismissed with prejudice. . We acknowledge with appreciation the assistance provided by the amicus American Immigration Lawyers Association. . See generally Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2530, 168 L.Ed.2d 467 (2007) ("In administrative law ... there is a harmless error rule.” (quoting PDK Labs., Inc. v. U.S.

Drug Enforcement Admin., 362 F.3d 786, 799 (D.C.Cir.2004))). . The parties agree the order was a final judgment; EAJA applications may not be filed until there is a final judgment. See 28 U.S.C. § 2412(d)(1)(B), (d)(1)(D)(2)(G); see also Melkonyan v. Sullivan, 501 U.S. 89, 97, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). . Buckhannon involved provisions of the Federal Housing Amendments Act of 1988, 42 U.S.C. § 3613(c)(2) and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12205. . Buckhannon thus overruled this circuit’s prior acceptance of the catalyst theory in Guglietti v.

Secretary of Health & Human Services, 900 F.2d 397 (1st Cir.1990) (applying EAJA), followed in Paris v. United States Department of Housing & Urban Development, 988 F.2d 236 (1st Cir.1993) (same). . The Court said these requirements were imposed by the plain language of the statute and while there was no need to resort to legislative history, that history was consistent with these requirements. Buckhannon, 532 U.S. at 607-08, 121 S.Ct. 1835. We reject Aronov's arguments that the legislative history supports a broader approach. . See, e.g., Davy v.

CIA, 456 F.3d 162, 166 (D.C.Cir.2006) (holding, under the attorneys’ fee provision of the Freedom of Information Act, that an award was appropriate even though the court's order was "styled 'order' as opposed to 'consent decree’ ”); see also Rice Sens., 405 F.3d at 1026-27 (EAJA); T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir.2003) (Individuals with Disabilities Education Act); Roberson v. Giuliani, 346 F.3d 75, 81 (2d Cir.2003) (42 U.S.C. § 1988); Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165 (3d Cir.2002) (same); Am. Disability Ass'n, Inc. v.

Chmielarz, 289 F.3d 1315, 1320 (11th Cir.2002) (ADA); Smyth, 282 F.3d at 276 (§ 1988). . There is no basis, as a result, to consider deference to non-existing "findings” of the district court, as to whether this was the equivalent of a consent decree. . A consent decree, which has attributes both of contracts and of judicial decrees, Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), must, therefore, go beyond contractual obligations. .

In Pierce, a pre-Buckhannon case where the Supreme Court affirmed an award of EAJA fees, the district court administered and enforced the settlement agreement reached. See Pierce, 487 U.S. at 556, 108 S.Ct. 2541 (noting that the government had created a $60 million settlement fund and that a California federal court had taken responsibility for administering the settlement). . We need not address what the proper vehicle would have been had the USCIS failed to carry through with its representation that it would grant citizenship.

But it is clear that the district court erred in concluding it could directly hold the USCIS in contempt in such circumstances because the order did not issue a mandate to the USCIS. Before a court can find a party in contempt for violating an order, it must conclude that “the words of the court's order have clearly and unambiguously forbidden the precise conduct on which the contempt allegation is based." United States v.

Saccoccia, 433 F.3d 19, 28 (1st Cir.2005) (emphasis in original); see also id. ("[T]he test is whether the putative contemnor is 'able to ascertain from the four comers of the order precisely what acts are forbidden.’ ” (emphasis added) (quoting Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 76 (1st Cir.2002))). A consent decree may itself contain mandatory language that is directly enforceable by a contempt action. . This case is factually distinguishable from the Tenth Circuit’s recent decision in Al-Maleki v. Holder, 558 F.3d 1200 (10th Cir.2009).

There, the court upheld an award of fees under the EAJA where the district court, after the case was filed, denied the government's initial motion for an unrestricted remand after a hearing, ordered the government to file an answer, accepted the representations in the answer, then granted a joint motion to remand, and entered an order expressly directing the USCIS to administer the oath of citizenship to the applicant, Abbas Al-Maleki.

The court found an order directing the agency to act was required because, as the court noted, “at the time the district court’s order was entered, USCIS had not yet naturalized Al-Maleki or made a binding commitment to do so.” Id. at 1205. Here, there were no such proceedings. No such order was entered; the court only remanded to the agency for it to act on its promise to grant citizenship. Our pointing out these factual distinctions should not be taken as agreement with the panel decision of the Tenth Circuit on this or any other point. .

The dissenters appear to characterize the district court as either having essentially issued an injunction requiring the agency to perform certain actions or as somehow having turned the remand into a consent decree. The dissenters' reading is not based on the actual October 12, 2006 remand order, but on the district court’s later characterization of the order. The argument is flawed for a number of reasons. First, the district court itself did not at any time characterize itself as having issued an injunction or as having approved a consent decree which incorporated other terms into its order, and properly so.

The requirements of Rule 65 were never met nor sought to be met nor was this presented as a consent decree. Second, the October 12, 2006 order on its face is merely an allowance of a motion to remand, it was not an injunction nor did it incorporate anything else. On its face, the order was unambiguous and lacked any provision mandating the USCIS to act or expressly retaining jurisdiction to force the government to act. While the allowance of motions for remand after litigation may meet the EAJA criteria for judicial imprimatur, this did not.

Third, while a district court's later characterization of what it. had intended in an earlier order may at times be helpful, this situation does not fall into any of the usual patterns. For example, the district court was not involved in settlement negotiations which enabled it to shed light on the nature of the settlement. See F.A.C., Inc. v. Cooperativa de Seguros de Vida de P.R., 449 F.3d 185, 192 (1st Cir.2006). Nor was this an issue of whether statements from the bench were meant to be a judicial order. See New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 30 (1st Cir.2002).

Nor was there any ambiguity in its October 12 order. See Harvey v. Johanns, 494 F.3d 237, 242 (1st Cir.2007). Fourth, it is also firmly the law that there must be a clear basis within the order (of October 12) for both the court's continuing jurisdiction and its power to enforce an agreement between the parties. Kokkonen, 511 U.S. at 381, 114 S.Ct. 1673; Saccoccia, 433 F.3d at 28. In F.A.C., we held that a court's order must expressly retain jurisdiction or expressly incorporate the terms of a settlement agreement to satisfy Kokkonen.

A "bare reference to ‘a settlement agreement' does not satisfy Kokkonen." F.A.C., 449 F.3d at 190. That was not done here. See also Smith, 401 F.3d at 24. ("For an order to be considered the functional equivalent of a consent decree, ... '[t]he obligation to comply with a settlement's terms must be expressly made part of a court's order for jurisdiction to enforce the settlement after dismissal of the action to exist.’ ” (quoting Smyth, 282 F.3d at 283 (emphasis added))); Hospitality House, Inc. v.

Gilbert, 298 F.3d 424, 431-32 (5th Cir.2002) (holding a district court order that included a settlement order attached as an exhibit did not satisfy Kokkonen because "to make a settlement agreement part of a dismissal order by incorporation, Kokkonen requires a district court to clearly indicate its intention within the dismissal order itself by expressly incorporating the agreement's terms” and noting that "a number of our sister circuits have similarly interpreted Kokkonen "). . Compare Etape v.

Chertoff, 497 F.3d 379, 383-87 (4th Cir.2007) (holding that a district court has exclusive jurisdiction once a § 1447(

b) suit is filed), and United States v. Hovsepian, 359 F.3d 1144, 1159 (9th Cir.2004) (en banc) (same), with Xie v. Mukasey, 575 F.Supp.2d 963, 964-65 (E.D.Wis.2008) (holding that the court and USCIS have concurrent jurisdiction), and Bustamante v. Chertoff, 533 F.Supp.2d 373, 376 (S.D.N.Y.2008) (same). . The parties agree that the government's post-litigation conduct was substantially justified. . In May 2008, USCIS had approximately 270,000 name check cases pending for all categories of applicants, and over 80% of the cases had been pending for more than 90 days.

In April 2008, USCIS and the FBI announced a joint plan to eliminate the backlog in name check searches by refining the search process and increasing the amount of staff dedicated to conducting searches. See Citizenship and Immigration Services Ombudsman, Annual Report 2008, at 6-7, available at http://www.dhs.gov/xlibrary/assets/ CISOMB_Armual_Report_2008.pdf. The number of pending name checks dropped to approximately 95,000 by August 2008. See Press Release, Update on Pending FBI Name Checks and Projected Naturalization Processing Times, http://www.dhs.gov/xnews/releases/ pr_1220993097713.shtm.

An amicus brief filed by the American Immigration Lawyers Association reported'a study of cases filed in district courts in the First Circuit. It concluded that plaintiffs had filed 137 cases involving naturalization' delay litigation in 2007. .

The FBI provides name check information to dozens of federal, state, and foreign agencies "seeking background information from FBI files on individuals before bestowing a privilege — [wjhether that privilege is government employment or an appointment; a security clearance; attendance at a White House function; a Green card or 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't Reform (July 10, 2003) (statement of Robert J. Garrity, Jr., Assistant Dir. (Acting), Records Mgmt.

Div., FBI), available at 2003 WL 21608243. . Congress's appropriation also addresses amicus's policy argument that the fact that cases brought under § 1447(b), like Aronov's, have spurred the agency to speed up the name check process should lead us to award fees. While § 1447(

b) claimants and their counsel may play a commendable role in bringing attention to the backlog problem, amicus’s argument is relevant only to the catalyst theory. Further, the government had been aware of the backlog in security checks before the peak in litigation that amicus cites, see, e.g., Citizenship and Immigration Services Ombudsman, Annual Report 2004, at 4-5, available at http://www.dhs.gov/xlibrary/ assets/CISReport_to_Congress.pdf, and it responded by securing additional resources to address the problem, see, e.g., Oversight of the Federal Bureau of Investigation: Hearing before the S.

Judiciary Comm. (Sept. 17, 2008) (statement of Robert S. Mueller, III, Dir., FBI) ("[W]hen we had the backlog, [and] recognized it, we sought the funding, [and] received the funding to address the backlog.”). . The criteria for expediting are: "Military deployment must be imminent,” "Age-out benefits,” "Writ of Mandamus,” "Immigration Judge cases — grant of lawful permanent residence,” and "Compelling reasons as provided by the requesting office (i.e., critical medical condition) assessed on a case by case basis.” .

Aronov and amicus argue that in an EAJA action, a court can never consider the resources of the agency on the question of whether the agency's actions were substantially justified. That is not so. Aronov and amicus wrongly rely on the Court’s statement in Commissioner, INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), that under the EAJA, "[t]he Government’s general interest in protecting the federal fisc is subordinate to the specific statutory goals of encouraging private parties to vindicate their rights.” Id. at 164-65, 110 S.Ct. 2316 (footnote omitted).

This statement addresses only the argument, which the government does not make here, that the agency’s need for resources should outweigh a successful applicant’s right to an award. It is simply irrelevant to the separate issue of whether the government's prelitigation position was substantially justified. A court can, and should, take into account the resources that an agency has to meet its statutory commands and to proceed in fairness to all applicants in light of the constraints under which it operates.

The EAJA was meant to allow plaintiffs to chailenge "unjustified governmental action”; the state of an agency's resources is material to whether its choice was or was not justified. Here, the agency was justified in acting as it did in light of its resources. . In Al-Maleki, the Tenth Circuit found the government’s prelitigation conduct not substantially justified. There, the issue was defined as whether the USCIS had unreasonably rejected petitioner's informal efforts to resolve the matter and failed, after the 120-day period, to request an expedited FBI name check.

The only justification presented by the government, unlike this case, was that it was unable, at that point, to request expedition. The circuit court found this was factually untrue. It also held "[bjecause USCIS ha[d] not offered any other justification for its prelitigation actions,” Al-Maleki, 558 F.3d 1200, 1205, there was no abuse of discretion. Thus, that court was not faced with the justifications offered to us.