concurring in part and dissenting in part:

I join my colleagues in voting to deny the Government’s motion for late filing of an objection to the Gwaduris’ request for fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 (2003). Although I certainly understand what it is like to have to handle a “high volume of work,” 1 and even to have to “prepare *1148 much of [my] own correspondence,” these excuses offered by the Government’s attorney are simply inadequate to forgive its having missed — by nearly six weeks — our court’s 14-day deadline for filing such a response. See Ninth Cir. R. 39-1.7 (“Any party from whom attorneys fees are requested may file an objection to the request ... within 14 days after service of the request.”).

I must dissent, however, from the court’s grant of attorneys’ fees. I certainly recognize that, absent the peculiar combination of the court’s administrative oversight and the Government’s belated motion for late filing of its objection, the Gwadu-ris’ otherwise unopposed motion for fees apparently long ago would have been granted by a staff attorney. Yet now that this application has come formally before the panel, I believe a fee award in this case to be statutorily unauthorized.

I

It is well-settled that fees under the EAJA may be awarded against the Government only if its litigating position in the case from which the prevailing party’s request arises lacked “a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552 , 566 n. 2, 108 S.Ct. 2541 , 101 L.Ed.2d 490 (1988); see also 28 U.S.C. § 2412 (d)(1)(A). That simply cannot be said of the position taken by the Government in response to the Gwaduris’ assertion that their due process rights were violated by having received ineffective assistance of counsel before the INS. Cf. Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985) (“Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.”).

In its disposition awarding relief, the majority conceded that the Gwaduris had not complied with the BIA’s procedural requirements for the presentation of an ineffectiveness claim, as established in Matter of Lozada, 19 I & N Dec. 637, 639 , 1988 WL 235454 (BIA 1988). See Gwaduri v. INS, 69 Fed.Appx. 878, 880 (2003) (unpublished disposition). 2 Our prior caselaw had held that those requirements generally are waivable only when the court is presented with what the record reveals to be “a clear and obvious case of ineffective assistance.” See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir.2002). As explained in greater detail in my dissenting opinion, I believe neither that that standard was met here, nor that the Gwa-duris even received constitutionally ineffective assistance at all. See Gwaduri, 69 Fed.Appx. at 884 (O’Scannlain, J., dissenting). I therefore believe the Government’s position that the BIA did not err in denying the Gwaduris’ motion to remand was at least reasonable — even if it ultimately failed to garner a majority vote of this court. See Pierce, 487 U.S. at 552 , 108 S.Ct. 2541 (“[T]he Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose.”).

Notably, the court’s decision to grant fees does not suggest otherwise. Instead, *1149 my colleagues seem merely to follow a practice of routinely granting EAJA fee requests whenever the government fails to oppose their award. That custom is understandable in light of the uniquely demanding burdens generated by our court’s gargantuan caseload, and in view of the adversary nature of our system of justice. Cf. Order at 1146.

But while I do not think it impermissible, I also do not believe it to be required. Therefore, I must disagree with my colleagues’ apparent suggestion that, in these circumstances, the court has but two alternatives. See id. (“[The court may] determine that the government’s lack of timely opposition is tantamount to a concession that its position ... was not substantially justified. Alternatively, we may treat the government’s non-opposition as ... a failure to carry its burden of proof.”) (citations omitted). Indeed, there is an obvious but overlooked third alternative: At least two of our sister circuits have recognized that a court properly may reach the merits of, and in the end may even deny, an unopposed fee request under the EAJA. See Libas, Ltd. v. U.S., 314 F.3d 1362, 1366 (Fed.Cir.2003) (holding that a court may deny an unopposed request for fees pursuant to the EAJA so long as it provides a reasoned explanation for its decision); United States v. Eleven Vehicles, Their Equipment, and Accessories, 200 F.3d 203, 212 (3rd Cir.2000) (explaining that, although a court generally may not reduce EAJA fees in the absence of a Government objection, that limitation on sua sponte court action applies only to the amount of fees — not to whether those fees are available in the first instance). 3 Most surprising, given the curious mordancy of their order awarding fees, is the fact that my colleagues appear entirely to agree with the eminently moderate position I have advanced. Though they decline to reach the issue whether the Government’s position was “substantially justified,” they have opted to award fees at a rate lower than requested by the Gwadu-ris — apparently on the theory that no special legal expertise was required to prosecute the Gwaduris’ ineffectiveness claim. See Order at 1146-47; cf. Ramon-Sepulveda v.INS, 863 F.2d 1458, 1463 (9th Cir.1988) (“[E]ven if immigration law can be classified as a practice specialty, the legal problem posed in [this case] requires no ‘distinctive knowledge’ or ‘specialized skill’.... On the contrary, [petitioner’s] legal claim against the INS involves established principles of res judicata — principles with which the majority of attorneys are, or should be, familiar.”) (quoting Pierce, 487 U.S. at 572 , 108 S.Ct. 2541 ). The majority’s colorful talk of “concession” and of “the government’s failure to carry its burden of proof,” Order at 3331, thus rings hollow — for, by reaching the merits of an unopposed motion in this fashion, the majority engages in precisely the analysis it suggests we ought now to eschew. 4

II

One further observation might be appropriate. Had an administrative oversight not resulted in the Gwaduris’ fee request coming before this panel in such peculiar fashion, and had a motions attorney simply granted the Gwaduris’ request for fees pursuant to what appears to be the pre *1150 vailing practice, the Government would have had 14 days within which to contest such award. See Ninth Cir. R. 27-7; Ninth Cir. Gen. Order App. A. One wonders whether such an adverse disposition would not have at last prompted the Government timely to respond to the Gwaduris’ request, in which case the motions attorney’s decision then would have been reconsidered on the merits by our court’s Appellate Commissioner or by a single judge of this court. See id. 5

By contrast, today’s order denies the Government that critical opportunity, leaving as its only possible path to redress the filing of a petition for rehearing en banc. Now, to garner what otherwise would be an automatic reconsideration of this award in response to an objection, the Government will have to obtain the votes of some 14 of our present complement of 26 active judges. Thus, even though today’s award of fees appears merely to achieve the same result that our administrative practice otherwise would have reached, the panel’s decision to mimic that custom here sets the Gwaduris’ motion on a distinct procedural course — and one that appears far more likely to result in the needless expenditure of taxpayer dollars.

Ill

For the foregoing reasons, I respectfully dissent from the court’s discretionary decision to award attorneys’ fees.

. See, e.g., Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003: Hearing Before the Suhcomm. on the Courts, the Internet, and Intellectual Property of the House Comm, on the Judiciary, 108th Cong. 14 (October 21, 2003) (statement of Hon. Diarmuid F. O’Scannlain, U.S. Circuit Judge) ("Even with the lumbering number of judges on our Circuit, we can hardly keep up with the immense breadth and scope of our Circuit's caseload. In the 2002 court year, we handled 11,271 appeals — over double the average of other circuits, and almost twenty-five hundred more cases than the next busiest court (the Fifth). Unfortunately, these numbers will only increase, and indeed have: as of three weeks ago, the end of the 2003 court year, that volume climbed to 12,632 filings.”).

. Although I usually am loathe to call attention to an unpublished disposition for the reasons well-stated in Hart v. Massanari, 266 F.3d 1155, 1176-80 (9th Cir.2001); see also Alex Kozinski & Stephen Reinhardt, Please Don’t Cite This! Why We Don’t Allow Citation to Unpublished Opinions, Cal. Lawyer, June 2000, at 43-44 & 81, I pause to observe that this is one of the veiy few instances in which doing so may be appropriate. See Ninth Circuit Rule 36 — 3(b)(ii) ("[Unpublished dispositions] may be cited to this Court or by other courts of this circuit for factual purposes, such as to show ... entitlement to attorneys’ fees.”).

. Although these two cases address the authority of the lower federal courts, they are equally applicable in this context — where we are not reviewing a district court’s decision, but in the first instance determining the propriety of awarding fees for legal work rendered on appeal.

. Cf. Order at 1146 ("[W]e do not generally favor requiring judges in fee application proceedings . . . sua sponte to initiate an opposition to a fee request where none is offered by the party affected, at least in the absence of a showing of injustice or hardship.”).

. The majority somewhat curiously suggests that, in the event the Government had moved for such reconsideration, the Appellate Commissioner or Circuit Judge responsible for addressing that motion could have denied it and granted the requested fees solely on the basis of the Government’s earlier failure to respond to the request. See Order at 1147. This proposition, however, seems at odds with the framework within which it assertedly operates.

Pursuant to this court's Rules, and subject to the court's approval, the Chief Judge may “delegate to the Clerk or a designated deputy clerk [the] authority to decide motions that are subject to reconsideration by a single judge or appellate commissioner.” Ninth Cir. R. 27-7. For present purposes, the relevant delegation provides only that circuit court mediators and motions attorneys may "issue ... orders granting unopposed motions for attorney fees.” Ninth Cir. Gen. Order App. A(50) (emphasis added). If the judicial actor required by the Government's filing of a reasoned "motion for ... reconsideration! 1 or rehearing,” Cir. Advisory Comm. Note to Ninth Cir. R. 27-7(l)(c), to appraise the propriety of the motions attorney's fee order could dispose of such responsibility simply by pointing to the Government's earlier lack of opposition, then such mandatory rehearing would be little more than an empty formality. After all, because motions attorneys are empowered to enter the kind of order which would initiate that process only when the issuance of such an order is formally unopposed in the first instance, see Ninth Cir. Gen. Order App. A(50), dispensing of a subsequently arising responsibility to reconsider the award of fees on grounds that they earlier were uncontested would be purely circular; it simply could serve no meaningful purpose (unless one sees a particular value in requiring an Article III adjudicator merely to count the days between the filing of a party’s request for fees and the issuance of the motions attorney's order, while simultaneously dis *1151 couraging him or her from considering the underlying merit of the award).