PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
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

Appeal from the United States District Court

for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:09-cv-00687-MJG)
Argued: October 28, 2010
Decided: January 13, 2011
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.

CODY v. CATERISANO

Affirmed by published opinion. Senior Judge Baldock wrote

the opinion, in which Chief Judge Traxler and Judge Wilkinson joined.

COUNSEL
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.

OPINION
BALDOCK, Senior Circuit Judge:
Petitioner Andrew Peter Cody asks us to reverse the district
courts denial of his petition for attorneys fees under the
Equal Access to Justice Act, 24 U.S.C. 2412(d)(1)(a),
because the Governments 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 Petitioners attendance at the
Academy. Petitioner then secured private funding and
attended the Academy. Because Ireland did not fund his atten-

CODY v. CATERISANO

dance, Petitioner had no obligation to serve in the Armed

Forces of the Republic of Ireland after graduating from the
Academy. Petitioners 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 activeduty 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

CODY v. CATERISANO

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
1920. 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 134135.
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 Petitioners
active duty status. In January 2009, Petitioner provided his
military service contract. This contract, countersigned by the
Navy, evidenced Petitioners 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 offices 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 (col-

CODY v. CATERISANO

lectively "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 120day 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 Petitioners 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. FischerAnderson, 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-Andersons 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 24748.
The Government contended the later Form N-426 was controlling on the question of Petitioners 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 Petitioners active duty status. Despite

CODY v. CATERISANO

the Governments 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 Petitioners 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 activeduty 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 Governments 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
39496. 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

CODY v. CATERISANO

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 Governments
position was not substantially justified because USCIS was
required to adjudicate his application within 120 days under
8 U.S.C. 1447(b) and 8 C.F.R. 310.5(a). Additionally,
Petitioner argued, USCIS was obligated to accept the Navys
Form N-426 certification as conclusive evidence that he
served on active-duty status. Thus, after receiving a properly
executed Form N-426, USCIS "had no justifiable basis in
refusing to act." J.A. at 409.
Without waiting for a response from the Government, the
district court denied Petitioners motion for EAJA fees. In a
three-page order, the court noted that Petitioner had prevailed
and requested a reasonable, perhaps even low, fee but concluded:
[T]he instant case presents a unique, unlikely to be
repeated, set of circumstances. The Court does not
need to require governments counsel to file a
response to the instant motion to establish what was
made clear in the Courts deliberations. There were
reasonable arguments on both sides of outcome
determinative issues. The court held for Petitioner
but recognizes that other judges could reasonably
disagree with its decision.
J.A. at 442 (internal quotations omitted). Petitioner appealed
this order, arguing the Governments position was not substantially justified and the district court failed to sufficiently
explain its reasoning in denying Petitioners request for EAJA
fees.
II.
We first consider whether the Governments position was
substantially justified. We review the district courts decision

CODY v. CATERISANO

to deny Petitioners request for EAJA fees for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 559 (1988). To
determine whether the Governments position was substantially justified, we consider "all aspects of the civil action."
Commissioner v. Jean, 496 U.S. 154, 161 (1990). As we said
in Roanoke River Basin Assn v. Hudson, 991 F.3d 132 (4th
Cir. 1993):
[W]e look beyond the issue on which the petitioner
prevailed to determine, from the totality of the circumstances, whether the government acted reasonably in causing the litigation or in taking a stance
during the litigation. In doing so, it is appropriate to
consider the reasonable overall objectives of the
government and the extent to which the alleged governmental misconduct departed from them.
Id. at 139. The Governments position is substantially justified if it is "justified in substance or in the mainthat is,
justified to a degree that could satisfy a reasonable person."
Pierce, 487 U.S. at 565. Nor must the Government win to
prove its position substantially justified; "it can be substantially justified if a reasonable person could think it correct,
that is, if it has a reasonable basis in law and fact." Id. at 566
n.2. Thus, we consider the Governments position both before
and during litigation to evaluate whether it was substantially
justified.
On appeal, Petitioner contends the Government was
required, by statute and regulation, to accept the Navys initial
certification that he was on active-duty status. In addition,
Petitioner argues the Government unjustifiably (1) obtained a
new Form N-426 and (2) argued the court was bound by the
Navys most recent certification. See also J.A. at 48486. If
the Government was bound by the Navys certification of
Petitioners status, Petitioner argues, then the Government
should have accepted the first completed N-426 and naturalized him accordingly. Because he had already passed his natu-

CODY v. CATERISANO

ralization exam and background checks, and with Meekss

Form N-426 certifying his active-duty status, Petitioner
argues the Government had no basis for denying his application for citizenship and, therefore, delayed his application
unjustifiably. This delay forced him to file suit. Lastly, after
he had been forced to file a lawsuit, Petitioner argues, the
Government altered the facts of the case by obtaining FischerAndersons Form N-426 in order to bolster its litigating position that Petitioner had not served on active-duty and was,
therefore, not eligible for naturalization.1 For these reasons,
Petitioner contends the Governments position is not substantially justified.
The Government, on the other hand, argues the central
issue in this lawsuit is and has always been whether Petitioner
was eligible for naturalization. The answer to this question
turns on whether Petitioner served on active duty while a midshipman at the Academy. Both parties have stated numerous
times that this is a question of first impression.2 As the Government notes, litigating cases of first impression is generally
1

Before the district court, the parties declined to delve into the facts surrounding the new Form N-426, such as whether the Government somehow
fraudulently obtained it. The court seemed to conclude the form had been
obtained for the purpose of bettering the Governments litigating position
but did not rely on any Form N-426 in deciding this case. Nor will we
speculate on the Governments motive in obtaining Fischer-Andersons
Form N-426.
2
At oral argument, Petitioners counsel argued the question to be
answered in this case was not "what does it mean to be on active duty?"
but "whether the Navy has certified [Petitioner was] on active duty."
Because, in his view, the relevant statutes and regulations tasked the Navy
with determining the active duty status of its Academy students, counsel
seemed to argue the case was "not a case of first impression, its a case
under a statute thats been interpreted before . . . ." Even if Petitioner has
correctly framed the question the district court had to answer in this case,
there are no cases in this Circuit addressing whether USCIS is bound by
the Navys certification of a midshipmans active duty status or whether
a foreign nationals attendance at the Academy constitutes active duty service. Thus, this case is properly termed one of first impression.

10

CODY v. CATERISANO

justifiable. Hyatt v. Shalala, 6 F.3d 250, 256 (4th Cir. 1993);

Southern Dredging Co. v. United States, 1996 WL 516158 at
*23 (4th Cir. 1996) (unpublished).
At the outset, we note the Government correctly argues
Petitioner bears the burden of demonstrating his eligibility for
citizenship: "[I]t has been universally acknowledged that the
burden is on the alien applicant to show his eligibility for citizenship in every respect. This Court has often stated that
doubts should be resolved in favor of the United States and
against the claimant." Berenyi v. Immigration & Naturalization Service, 385 U.S. 586, 637 (1967). Courts have the power
to confer citizenship only "in strict compliance with the terms
of an authorizing statute." Immigration & Naturalization Service v. Pangilinan, 486 U.S. 875, 884 (1988). The Government argues Petitioner did not satisfy his heavy burden of
proving his eligibility for citizenship.
Below, the Governments argument rested on the interpretation of statutory text, analogous cases, and Congressional
intent. In a nutshell, the Government contended the court was
bound to accept the Navys Form N-426 certification that
Petitioner was not on active duty while at the Academy.
Alternatively, if the court decided to accept neither form, the
Government argued the court should consider relevant statutes and analogous cases, which, in its view, revealed that
Petitioner had not been serving on active duty status at the
Academy. Nor, according to the Government, did Congress
pass 329 with the intent to reward activity such as Petitioners attendance at the Academy as active duty service. We
consider each of the Governments arguments briefly.
To support its first point, the Government argued 8 U.S.C.
1440(a) required it and the court to accept the Navys certification that Petitioner was not on active duty status during his
time at the Academy. Section 1440(a) provides, in relevant
part: "The executive department under which such person
served shall determine whether persons have served honor-

CODY v. CATERISANO

11

ably in an active-duty status, and whether separation from

such service was under honorable conditions." The Government argued the court was not bound by the original Forms
N-426 certifying Petitioners active duty status because from
the beginning, "he was not serving on active duty, and those
are the facts." J.A. at 489. Essentially, the Government argued
the Navy was mistaken in its original Form N-426 certification and sought to correct its mistake. See Bagheri v. I.N.S.,
2000 WL 335712, at *1 (9th Cir. 2000) (unpublished) (concluding the petitioner was ineligible for naturalization under
329 because the Navy retracted its certification of his active
duty status after concluding his participation in a Reserve
Officers Training Corps training cruise was not active duty
service).
Anticipating the district courts rejection of the conflicting
Forms N-426, the Government made several statutory arguments. First, the Government pointed to the definition of
active duty in 10 U.S.C. 101:
The term "active duty" means full-time duty in the
active military service of the United States. Such
term includes full-time training duty, annual training
duty, and attendance, while in the active military service, at a school designated as a service school by
law or by the Secretary of the military department
concerned.
Id. 101(d)(1). Though the text of this provision could be
read to include cadet time as active duty service, the Government urged the district court to follow the Ninth Circuits
logic, found in a footnote in Jacobs v. United States, 680 F.2d
88 (9th Cir. 1982): "We agree with the district court that,
because of the phrase while in active military service, [the
definition of active duty] refers to education that takes place
after an officer has been commissioned, and not . . . before."
Id. at 89 n.2. According to the Government and the Ninth Circuit, because Petitioner had not obtained a commission before

12

CODY v. CATERISANO

attending the Academy, his attendance at the Academy did

not fall within the statutory definition of active duty.
Second, the Government urged the district court to consider
the text of 10 U.S.C. 6959, which provides in relevant part:
"The Secretary of the Navy may . . . order to active duty for
such period of time as the Secretary prescribes . . . a midshipman who breaches an agreement [regarding service in the
armed forces upon graduation from the Academy]." Id.
6959(b)(1). The Government reasoned that if a midshipman
could be ordered to active duty while at the Academy, his
attendance at the Academy could not also constitute active
duty.
Third, the Government pointed to 10 U.S.C. 971, which
prohibits officers from counting service performed as midshipmen at the Academy towards service credit. Id.
971(a)(c). If attendance at the Academy as a midshipman
could not be counted toward the length of time an officer
served, the Government argued, such attendance was not the
same as active duty. Rather, 971 distinguishes attendance at
a service academy from the active duty service rendered by a
"regular soldier." Appellee Br. at 28.
In addition, the Government provided analogous cases to
support its position. J.A. at 23242. In these cases, other
courts concluded service in the Reserve Officers Training
Corps (ROTC) was not active-duty service. Bagheri, 2000
WL 335712 (concluding a ROTC practice cruise was not
active duty service because the Navy retracted its certification
of the petitioners active duty status); United States v. Chen,
170 F.2d 307, 30809 (1st Cir. 1948) (reversing the district
courts grant of citizenship to a non-citizen who trained for
two years with the University of Illinois ROTC because the
petitioner was never issued a commission, he had never taken
an oath, and his offer of service was rejected). The Government argued Petitioners status as a midshipman at the Academy was analogous to the non-citizens in these cases whose

CODY v. CATERISANO

13

service in ROTC was not equivalent to active duty service or

military service for the purposes of eligibility for citizenship.
The Government also relied on legislative history to demonstrate that Congresss intent in drafting 329 was not to
reward people like Petitioner with an accelerated path to naturalization. Rather, the Government argued, Congress intended
to reward the "military service [of an] alien in times of war
or undeclared military hostilities with due recognition of the
dangers and risks inherent in such service wherever it might
be because of the ever-present possibility of reassignment to
the war zones of operation." S. Rep. No. 1292, 90th Cong., 2d
Sess. 13, reprinted in 1968 U.S.C.C.A.N. 4517, 4527. The
Government argued that service at the Academy does not
present the same risks of being called to serve in "the war
zones of operation." Thus, Petitioner should not be naturalized under 329 because his time at the Academy was not the
sort of service 329 was intended to reward.
Further, though Petitioner argues the Governments prelitigation conduct was not substantially justified because it
unreasonably delayed and refused to accept the Navys certification of Petitioners active duty status, the Government
responds that while the Navy may have altered its position
because of a mistake, USCIS continually questioned whether
Petitioner had met his burden to demonstrate eligibility for
citizenship. Any delay, argued the Government, resulted from
its attempt to thoroughly investigate Petitioners application.
The district courts consideration of these arguments is
clear from the record, which includes a transcript of a hearing
where the court thoroughly questioned counsel for both parties about their positions. As a result, though the district
courts order denying Petitioners request for EAJA fees only
briefly explained the courts reasoning, both the order and the
record reflect that the district court considered the arguments
of both parties to be reasonable. We agree. In this case of first
impression, the Government made reasonable arguments

14

CODY v. CATERISANO

based on statutory interpretation and analogous cases. The

district court, therefore, did not abuse its discretion in deciding the Governments position was substantially justified.
III.
Petitioner argues in the alternative that the district court did
not sufficiently explain its reasons for finding the Governments position to be substantially justified. He points to the
fact that the district court did not even wait for the Government to respond to his motion for EAJA fees before ruling.
The Government contends that the arguments made below are
clearly reflected in the record, and despite the district courts
minimal reasoning in its order denying EAJA fees, we can,
therefore, determine exactly what the district court considered
in evaluating the Governments position.
As Petitioner correctly notes, we have twice remanded
EAJA fee cases for the district court to explain its reasoning
for concluding the Governments position was substantially
justified. See Mann v. Astrue, 258 Fed. Appx 506 (4th Cir.
2007) (unpublished); Morgan v. Barnhart, 227 Fed. Appx
235 (4th Cir. 2007) (unpublished). Our reason for remanding
in those cases was: "[W]e cannot properly review the district
courts decision without an explanation for how it reached
that decision." Morgan, 227 Fed. Appx at 237; see also
Mann, 258 Fed. Appx at 508. In the instant case, on the other
hand, the district court set forth the governing law, then provided analysis for each part of an EAJA inquiry. First, the
court concluded that Petitioner was the prevailing party. Second, though it did not include the words "substantially justified," in its analysis, the district court explained that the case
was unique, reasonable arguments existed on both sides of
outcome determinative issues, and other judges could disagree
with its decision for Petitioner. J.A. at 442. Thus, the district
court considered what the Supreme Court requires: that is,
whether the Governments position would be acceptable to a
reasonable person. Pierce, 487 U.S. at 565. Moreover, the

CODY v. CATERISANO

15

record contains not only the parties motions and supporting

briefs but also a transcript of a hearing where the district court
inquired extensively into both parties arguments. Thus, we
can determine that the district court did not abuse its discretion in concluding those arguments were reasonable.
Petitioner does not provide, nor could we find, precedent
requiring a district court to perform a certain kind of analysis,
recite certain magic words, or follow a particular formula
when denying motions for EAJA fees. While the district court
in this case could have set forth its rationale in more detail,
we can discern from the record what the district court meant
when it said both parties made reasonable arguments. Moreover, as Pierce requires, the district court determined the
Government made arguments which would be satisfactory to
a reasonable person. Pierce, 487 U.S. at 565. Thus, despite
the district courts perhaps overly concise explanation, the
record provides sufficient information for us to review its
decision. Nor do we think a remand would yield any different
result or new information. Indeed, doing so would tend to turn
Petitioners request for EAJA fees into a "second major litigation," a course of conduct we have expressly cautioned
against. See Hyatt v. Barnhardt, 315 F.3d 239, 253 (4th Cir.
2002) ("A request for attorneys fees should not result in a
second major litigation." (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983))).
Accordingly, the district courts denial of Petitioners
request for EAJA fees is
AFFIRMED.