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Court denies attorney’s fees to victorious litigant

A federal appeals court has denied attorney’s fees to an Irish national who took the U.S. government to court in a successful effort to gain American citizenship.

Andrew Peter Cody, a 2009 U.S. Naval Academy graduate, did not qualify for the fees under the federal Equal Access to Justice Act because the government’s opposition to his naturalization was “not substantially unjustified,” the 4th U.S. Circuit Court of Appeals said in upholding a judge’s decision.

U.S. District Judge Marvin J. Garbis of Baltimore denied the fee award in 2009, even though he had rejected the government’s argument that Cody was not qualified to become a citizen. The government’s position — that Cody had not served on active duty — was wrong but reasonable, rendering Cody ineligible for attorneys fees under the Equal Access to Justice Act, said Garbis.

The 4th Circuit, in agreeing with the judge, said fees can be awarded in civil litigation against the federal government only if its legal position was not substantially justified under the EAJA. The government had based its opposition to Cody’s citizenship bid on a reasonable interpretation of U.S. immigration law and a fair reading of prior cases, the court held.

“In this case of first impression, the government made reasonable arguments based on statutory interpretation and analogous cases,” Senior Judge Bobby R. Baldock wrote for the appellate court. “The district court, therefore, did not abuse its discretion in deciding the government’s position was substantially justified.”

Baldock, of the 10th U.S. Circuit Court of Appeals, was sitting by designation.

Cody’s unusual path to U.S. citizenship began when the Republic of Ireland nominated him to attend the Naval Academy in 2005 but said it could not fund his attendance. Cody secured private funding and attended the Annapolis school, serving honorably and receiving many awards, Garbis stated.

Shortly before graduation, Cody applied for U.S. citizenship, an uncommon move — generally foreign nationals who attend the academy are obligated to return to their home country and serve in its military. But because the Irish government did not fund his attendance, Cody had no obligation to return and serve in Ireland’s military.

Cody applied for citizenship under a U.S. Immigration and Nationality Act provision that qualifies for naturalization anyone who served honorably on active-duty status in the Navy during a time of “armed conflict with a hostile foreign force.”

As proof of his eligibility, Cody submitted in his application a Form N-426 on which Barbara S. Meeks, the academy’s assistant registrar, certified he had entered the academy in 2005 and had served honorably. Cody also submitted a Judge Advocate General’s opinion that attending the Naval Academy constitutes active-duty service.

In addition, Cody sent in former President George W. Bush’s still-active executive order of July 3, 2002, declaring that the United States has been in a period of armed conflict since Sept. 11, 2001.

When the government failed to act on his citizenship application within 120 days, Cody filed a request for a hearing in the U.S. District Court in Baltimore.

The government moved to have the case remanded to the U.S. Citizenship and Immigration Services. The government also submitted to the court a new Form N-426 — certified by Capt. K.L. Fischer-Anderson, staff judge advocate to the academy’s superintendent — stating that Cody’s time at the academy did not qualify as active Naval duty, along with an affidavit stating that Meeks erred in stating otherwise on the first form.

Garbis rejected the government’s arguments, saying Cody had “done everything required of midshipmen who are United States citizens and has served honorably [and] 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.” Garbis ordered the USCIS to issue a certificate of citizenship to Cody.

But Garbis denied Cody’s request for attorney’s fees under the EAJA, saying the government’s arguments in opposition to citizenship were wrong but “reasonable” and that another judge “could reasonably disagree” with his decision.

Cody then appealed unsuccessfully to the 4th Circuit.

Cody’s attorney, Douglas J. Behr, did not respond to telephone messages seeking comment Monday. Behr is with Keller & Heckman LLP in Washington, D.C.

U.S. Attorney Rod J. Rosenstein, a named defendant in the case, also did not respond to telephone messages Monday. Jason D. Medinger, an assistant to Rosenstein, argued the case for the government.

Joining Baldock’s opinion were Chief Judge William B. Traxler Jr. and Judge J. Harvie Wilkinson III.



Cody v. Caterisano et al., 4USCA 09-2166. Reported. Opinion by Baldcock, J. Filed Jan. 13, 2011.


Did the trial judge err in not awarding attorney’s fees to a victorious litigant in his claim against the federal government?


No; plaintiffs may be awarded attorney’s fees under the Equal Access to Justice Act only when the government’s position was “not substantially justified.”


Douglas J. Behr for appellant; Jason D. Medinger for appellee.

RecordFax # 11-0113-60.