G.H. Daniels & Associates v. Pizzella ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
G.H. DANIELS III & ASSOCIATES,
INC.; HANDY ANDY SNOW
REMOVAL,
Plaintiffs - Appellants,
No. 18-1375
v. (D.C. No. 1:12-CV-01943-CMA-MJW)
(D. Colo.)
PATRICK PIZZELLA,* Acting Secretary
of U.S. Department of Labor; KEVIN
McALEENAN, Acting Secretary of
U.S. Department of Homeland Security;
MICHAEL R. POMPEO, Secretary of
State; WILLIAM P. BARR, United
States Attorney General,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT***
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Patrick Pizzella is substituted for Alexander Acosta as
Defendant-Appellee in this action.

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Kevin McAleenan is substituted for Kirstjen Nielsen as
Defendant-Appellee in this action.
***
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
_________________________________
Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Appellants G.H. Daniels III & Associates, Inc. and Handy Andy Snow
Removal employ H-2B nonimmigrant guest workers to perform seasonal work. They
filed suit against the Department of Homeland Security (“DHS”) challenging DHS’s
administration of the H-2B visa program. After prevailing on their claim that DHS
impermissibly sub-delegated its decisionmaking authority under the H-2B visa
program to the Department of Labor (“DOL”), they moved for an award of attorneys’
fees, costs, and expenses pursuant to the Equal Access to Justice Act (“EAJA”). The
district court denied the motion, and they appealed. Exercising jurisdiction under
28 U.S.C. § 1291, we reverse and remand for further proceedings.
I
The H-2B visa program permits United States employers to recruit and hire
foreign workers to fill temporary, unskilled, non-agricultural positions for which
domestic workers cannot be located. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). DHS sets
the terms and conditions for admitting H-2B nonimmigrants, but the determination of
whether to admit a nonimmigrant worker in each specific case must be made “after
consultation with appropriate agencies of the Government.” § 1184(c)(1) (emphasis
added).
In 2008, DHS issued regulations that require H-2B petitioners to secure a valid
labor certification from DOL before filing an H-2B foreign worker petition with
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DHS. Appellants challenged this regulation. The government moved to dismiss the
complaint, arguing that DHS’s exercise of its authority to require that an employer
first obtain a labor certification from DOL is authorized by the “consultation”
provision in § 1184(c)(1). The district court agreed, but we reversed on appeal. We
concluded that “DHS’s formulation of the scope and nature of DOL’s ‘consultation’
is unreasonable.” G.H. Daniels III & Assocs. v. Perez, 626 F. App’x 205, 210
(10th Cir. 2015) (unpublished).
The government then filed a petition for rehearing, which we denied. We
noted the government raised a new argument in its petition—“that 8 U.S.C.
§ 1103(a)(6) gave DHS authority to subdelegate its H-2B decision-making authority
to DOL.” Id. at 212 n.10. We explained that, “[the government’s] argument has
always been there is no subdelegation” and “[i]t clearly waived any reliance on
8 U.S.C. § 1103(a)(6) in this case or, at best, forfeited the issue.” Id. And we further
explained, “[i]t is too late in the process to entertain waived/forfeited arguments that
may or may not be meritorious.” Id.
Because appellants prevailed on the subdelegation claim, they filed a motion
for fees and costs under EAJA. That statute directs a court to award fees and other
expenses to a prevailing party in a civil action against the United States “unless the
court finds that the position of the United States was substantially justified.”
§ 2412(d)(1)(A).
The district court denied the motion, explaining that the government’s theory
had been adopted in decisions of multiple courts, including the Third Circuit, and that
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the government may take substantially justified positions and still lose, see Pierce v.
Underwood, 487 U.S. 552, 569 (1988). Appellants now appeal.
II
We review the district court’s denial of a motion for fees under EAJA for
abuse of discretion. See Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011).
An abuse of discretion “occurs when the district court bases its ruling on an
erroneous conclusion of law or relies on clearly erroneous fact findings.” Id.
(quotations omitted). “Our appellate role is limited to ensuring that the district
court’s discretionary decision did not fall beyond the bounds of the rationally
available choices before the district court given the facts and the applicable law in the
case at hand.” Id. (quotations and alterations omitted).
In their motion for fees, appellants argued the government’s position was
unreasonable.1 They sought fees for all stages of the litigation, including the time
1
Although this is an appeal from the denial of appellants’ motion for fees
under EAJA, appellants inexplicably failed to include a copy of that motion in their
appendix. “An appellant represented by retained counsel must electronically file an
appendix sufficient for considering and deciding the issues on appeal.” 10th Cir. R.
30.1(B)(1). “When the appeal is from an order disposing of a motion . . . , the motion
. . . must be included in the . . . appendix.” 10th Cir. R. 10.4(D)(2). “The court need
not remedy any failure of counsel to provide an adequate appendix,” 10th Cir. R.
30.1(B)(3), and “[w]hen the party asserting an issue fails to provide a record or
appendix sufficient for considering that issue, the court may decline to consider it,”
10th Cir. R. 10.4(B). Although we have the authority to go beyond the appendix to
review documents filed in the district court, we are not obligated to do so. See
Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907-08 (10th Cir. 2009). We have
retrieved appellants’ motion from the district court docket and reviewed it, but
caution counsel that filing an insufficient appendix could result in a summary
affirmance of the district court’s decision. Id. at 910.
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spent researching and preparing a response to the government’s petition for
rehearing. They asserted the government unreasonably reversed its previous
litigation position in its petition for rehearing, without authority or reasonable basis
for changing its position, and that “[t]he inconsistency in the government’s positions
prior to its petition for rehearing and in its petition for rehearing establishes that its
changing positions were not substantially justified.” The district court’s order
denying the motion for fees does not mention this argument or otherwise discuss the
government’s petition for rehearing.
On appeal, appellants argue the district court abused its discretion by failing to
consider the argument regarding the government’s change of position in its petition
for rehearing. And appellants specifically contend that the government’s
unreasonable position in the petition for rehearing constitutes sufficient justification
to award EAJA fees.
The Supreme Court has explained: “While the parties’ postures on individual
matters may be more or less justified, the EAJA—like other fee-shifting statutes—
favors treating a case as an inclusive whole, rather than as atomized line-items.”
Comm’r v. Jean, 496 U.S. 154, 161-62 (1990). In reviewing appellants’ motion for
fees under EAJA, the district court should have considered appellants’ argument
regarding the government’s position on rehearing as part of the district court’s
holistic assessment of whether the government’s overall position in the litigation was
justified. See United States v. Johnson, 920 F.3d 639, 649 (10th Cir. 2019) (finding
persuasive the Fourth Circuit’s conclusion “that the substantial-justification inquiry
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should focus holistically on whether the government acted reasonably in causing the
litigation or in taking a stance during the litigation” (quotations omitted)), pet. for
cert. filed, (U.S. June 27, 2019) (No. 19-10). We are unable to discern from the
district court’s decision whether it considered appellants’ argument about the
government’s petition for rehearing. We therefore must remand for the district court
to explicitly address this issue as part of its substantial-justification inquiry. Cf.
Griffen v. City of Okla. City, 3 F.3d 336, 342 (10th Cir. 1993) (remanding to district
court for further findings or explanation because this court could not tell from the
district court’s order why it refused to impose sanctions and therefore this court was
left with no “means by which to judge the exercise of the [district] court’s discretion”
(quotations omitted)).
III
Accordingly, we REVERSE and REMAND to the district court for further
proceedings consistent with this decision.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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