Washington Alliance of Technology Workers v. United States Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 2017 Decided May 26, 2017
No. 16-5235
WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00529)
John M. Miano argued the cause for appellant. With him
on the briefs were Dale Wilcox and Michael Hethmon.
Joshua S. Press, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Glenn
M. Girdharry, Assistant Director.
Before: HENDERSON and KAVANAUGH, Circuit Judges,
and SENTELLE, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
Dissenting opinion filed by Circuit Judge KAVANAUGH.
SENTELLE, Senior Circuit Judge: Appellant Washington
Alliance of Technology Workers (“Washtech”) received a fee
award under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, for proceedings in which it partially succeeded
in challenging a Department of Homeland Security practice
allowing student visa holders to remain in the United States
after completion of their formal education. Washtech appeals
from the award, arguing that the district court erred in
compensating it only for legal services time devoted to the one
claim upon which it succeeded, as opposed to the entire
litigation, and that the court abused its discretion in ordering
further reductions from the amount sought. Because we
conclude that the district court did not abuse its discretion, we
affirm the decision of the district court.
I. BACKGROUND
In 2002, when Congress created the United States
Department of Homeland Security (“DHS”), it transferred to
the Secretary of Homeland Security the authority and
responsibility theretofore residing in the Attorney General for
the administration and enforcement of the Immigration and
Naturalization Act, 8 U.S.C. § 1101, et seq. (the “Act”). The
statute authorizes various visas allowing of the admission to the
United States of specified categories of aliens for specified
purposes. The “F-1 student visa” authorizes admission of
“bona fide student[s] qualified to pursue a full course of study”
and who seek entry to the United States “temporarily and solely
for the purpose of pursuing” studies as specified in the Act. Id.
§ 1101(a)(15)(F)(i). DHS and its predecessor agencies have
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long permitted aliens with student visa status to remain in the
United States after graduation to participate in the workforce
as part of an Optional Practical Training program (“OPT”).
See, e.g., Pre-Completion Interval Training; F-1 Student Work
Authorization, 57 Fed. Reg. 31,954 (July 20, 1992) (codified at
8 C.F.R. § 214.2(f)(10)(ii)) (“1992 OPT Rule”). Between 1992
and 2007, the 1992 OPT Rule authorized one year of
employment after graduation to alien guestworkers. 8 C.F.R.
§ 214.2(f)(11) (2007). DHS subsequently extended the OPT
period by 17 months for students with a science, technology,
engineering, or mathematics degree. Extending Period of
Optional Practical Training, 73 Fed. Reg. 18,944 (Apr. 8, 2008)
(codified at 8 C.F.R. pts. 214, 274a) (“2008 OPT Rule”).
Washtech, a labor union that represents American workers in
technology fields, filed a complaint in federal district court,
alleging three counts challenging the OPT program as a whole,
arguing that it was unlawful for DHS to allow “students” to
remain in the United States and work after they had graduated.
These claims were dismissed early in the case after the district
court found that Washtech lacked standing to pursue them. See
Wash. All. of Tech. Workers v. Dep’t of Homeland Sec., 74 F.
Supp. 3d 247, 252 (D.D.C. 2014). Remaining counts related to
the 2008 OPT Rule extending the maximum OPT period,
challenging the 2008 OPT Rule on procedural and substantive
grounds. The district court rejected Washtech’s claim that
DHS exceeded its statutory authority by issuing the 2008 OPT
Rule but upheld Washtech’s claim that DHS had waived notice
and comment without good cause. Wash. All. of Tech. Workers
v. Dep’t of Homeland Sec., 156 F. Supp. 3d 123, 140-45, 145-
47 (D.D.C. 2015) (“Merits Opinion”). The court vacated the
rule but stayed vacatur for six months and directed DHS to
“submit the 2008 [OPT] Rule for proper notice and comment.”
Id. at 149. Washtech appealed.
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During the pendency of the appeal, DHS moved the
district court to alter its judgment so as to extend the stay of
vacatur of the 2008 OPT Rule, a motion that Washtech
opposed. The district court extended the stay of vacatur for
approximately three months. Washtech subsequently appealed
that decision.
On March 11, 2016, DHS promulgated a new rule to
replace the 2008 OPT Rule. See Improving and Expanding
Training Opportunities for F-1 Nonimmigrant Students With
STEM Degrees and Cap-Gap Relief for All Eligible F-1
Students, 81 Fed. Reg. 13,040 (Mar. 11, 2016) (codified at 8
C.F.R. pts. 214, 274a) (“2016 OPT Rule”). On May 13, 2016,
this Court held that the issues raised in the appeal before it were
therefore moot. Wash. All. of Tech. Workers v. Dep’t of
Homeland Sec., No. 15-5239, 650 F. App’x 13 (D.C. Cir. May
13, 2016).
Washtech filed a motion for fees under the EAJA. The
district court held that Washtech was a prevailing party under
the EAJA and awarded fees. Wash. All. of Tech. Workers v.
Dep’t of Homeland Sec., 202 F. Supp. 3d 20, 24-26 (D.D.C.
2016). However, the court awarded a significantly lower fee
than Washtech requested. Id. at 29. The court declined to
award fees for any activities undertaken after its Merits
Opinion because “plaintiff achieved no success in this
litigation” after that date. Id. at 28-29. And because it found
Washtech’s victory “marginal,” the court awarded Washtech
15% of the remaining requested fees and expenses. Id. at 29.
Washtech filed the present appeal.
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II. DISCUSSION
A. Standard of Review
The EAJA provides:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and other
expenses, in addition to any costs awarded
pursuant to subsection (a), 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).
Under the EAJA, district courts may award “reasonable”
fees and must disallow claims for “excessive, redundant, or
otherwise unnecessary” charges. Hensley v. Eckerhart, 461
U.S. 424, 433-34 (1983). 1 “It remains for the district court to
determine what fee is ‘reasonable.’” Id. at 433. As we have
stated, “the determination of how much to trim from a claim
for fees is committed to the [district] court’s discretion.” Okla.
1
Although Hensley dealt with an award of fees under 42 U.S.C.
§ 1988 rather than the EAJA, Hensley is “generally applicable in all
cases in which Congress has authorized an award of fees to a
‘prevailing party.’” Hensley, 461 U.S. at 433 n.7. Thus, Hensley’s
standards apply in the present case.
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Aerotronics, Inc. v. United States, 943 F.2d 1344, 1347 (D.C.
Cir. 1991). Therefore, we “review an EAJA fee award for
abuse of discretion.” Truckers United for Safety v. Mead, 329
F.3d 891, 894 (D.C. Cir. 2003). We “‘will reverse the district
court if its decision rests on clearly erroneous factual findings
or if it leaves us with a definite and firm conviction that the
court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.’”
Id. (quoting F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 596
(D.C. Cir. 1996)).
B. Analysis
When, as in this case, plaintiffs seeking EAJA awards have
brought multiple claims and prevailed on only one or fewer
than all of the claims, the question arises, as it does before us,
as to what portion of the fees claimed by the EAJA applicant
are compensable under the Act. In answering that question, we
begin with the proposition that “counsel’s work on one claim
[is] unrelated to his work on another claim[,]” and “work on an
unsuccessful claim cannot be deemed to have been expended
in pursuit of the ultimate result achieved.” Hensley, 461 U.S.
at 435 (internal quotation marks and citation omitted).
However, “[m]uch of counsel’s time will be devoted generally
to the litigation as a whole, making it difficult to divide the
hours expended on a claim-by-claim basis.” Id. In such
situations, “the district court should focus on the significance
of the overall relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.” Id. “Litigants in
good faith may raise alternative legal grounds for a desired
outcome, and the court’s rejection of or failure to reach certain
grounds is not a sufficient reason for reducing a fee.” Id.; see
also Anthony v. Sullivan, 982 F.2d 586, 589 (D.C. Cir. 1993).
“The result is what matters.” Hensley, 461 U.S. at 435.
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The district court found “no difficulty segregating fees
related to [Washtech]’s appeal and opposition to DHS’s motion
for reconsideration” from its successful claims because
Washtech achieved “no success” in the litigation after the court
issued its Merits Opinion. Washtech, 202 F. Supp. 3d at 28-29.
Even where a plaintiff’s claims are “interrelated, nonfrivolous,
and raised in good faith[,]” fees are not authorized where a
plaintiff has achieved only limited success and a district court
may “identify specific hours that should be eliminated.”
Hensley, 461 U.S. at 436. It was therefore within the district
court’s discretion to deny fees generally for Washtech’s
unsuccessful efforts.
Included among the disallowed fees is Washtech’s
unsuccessful appeal to this Court. Washtech argues that “[t]he
effect of the appeal to this Court was to eliminate the question
of whether the lawfulness of the OPT program was a res
judicata” so that Washtech could pursue its substantive
argument in a subsequent case. Pet’r’s Br. at 15. Therefore,
“the appeal and this Court’s judgment produced a favorable
change for Washtech in its legal relationship with DHS.” Id.
(citing Buckhannon Bd. & Care Home v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 605 (2001)). But “fees
are available only to a party that ‘prevails’ by winning the relief
it seeks.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480
(1990) (citations omitted). Although this Court vacated the
district court’s opinion, Washtech did not win the relief it
sought from this Court—a reversal on the merits—and thus did
not prevail in its appeal. The Supreme Court has squarely held
that, where a controversy is mooted before a court of appeals’
judgment issues, an appellant is “not, at that stage, a ‘prevailing
party’ as it must be to recover fees . . . .” Id. at 483. It was
therefore within the district court’s discretion to deny
Washtech fees for work done on its appeal.
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The district court also denied entirely reimbursement for
Washtech’s attorneys traveling to and from Washington to
testify before the Senate. Washtech, 202 F. Supp. 3d at 29.
This was within the court’s discretion because counsel’s
testimony “had no impact whatsoever on this litigation.” Id.
Washtech further argues that the district court abused its
discretion by “arbitrarily” awarding a smaller fee than that
requested. The district court agreed with Washtech that its
other “various challenges to the OPT program were interrelated
and thus . . . issue-by-issue compartmentalization of the
unsuccessful claims is not feasible.” Id. (citations omitted).
The court was then required to consider “whether the
expenditure of counsel’s time was reasonable in relation to the
[limited] success achieved.” Hensley, 461 U.S. at 436; see also
George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1537
(D.C. Cir. 1992). The Supreme Court has made clear that
“where the plaintiff achieved only limited success, the district
court should award only that amount of fees that is reasonable
in relation to the results obtained.” Hensley, 461 U.S. at 440.
The district court explained that “the [requested] award
must be reduced in light of [Washtech’s] limited success in this
action.” Washtech, 202 F. Supp. 3d at 28. While Washtech
prevailed on its notice-and-comment claim, the district court
rejected its claims challenging the 1992 OPT Rule and “its
primary claim that DHS exceeded its statutory authority by
issuing the 2008 [OPT] Rule.” Id. at 27-28. Washtech asserts
that these arguments were merely alternative grounds for its
desired outcome—vacatur of the 2008 OPT Rule—and “the
court’s rejection of or failure to reach certain grounds is not a
sufficient reason for reducing a fee.” Hensley, 461 U.S. at 435.
Indeed, the district court ordered vacatur of the 2008 OPT Rule.
However, Washtech’s argument ignores the fact that, as the
district court stated, “[t]he outcome [Washtech] achieved—
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vacatur of the 2008 [OPT] Rule, subject to DHS’s later
promulgation of a replacement rule—is far more limited than
if the Court had accepted its overarching claim that DHS
exceeded its statutory authority, since DHS could not then have
promulgated the replacement rule.” Washtech, 202 F. Supp. 3d
at 28. Further, the three claims dismissed for lack of standing
challenged the entire OPT program, rather than the 2008
extension, and “success on those claims would have certainly
provided greater relief than plaintiff actually achieved.” Id. It
was therefore within the district court’s discretion to find
Washtech’s victory “marginal,” id. at 29, and reduce the fee in
light of its “partial or limited success[,]” Hensley, 461 U.S. at
436.
In addition, the district court found that Washtech’s fees
were “unjustifiably high” in light of the number of attorneys
working on the matter and “unnecessary duplication” of efforts
as well as insufficient detail in billing records. Washtech, 202
F. Supp. 3d at 29. Such judgments were well within the district
court’s discretion. See, e.g., Role Models Am., Inc. v.
Brownlee, 353 F.3d 962, 973 (D.C. Cir. 2004) (reducing
plaintiff’s award in part because of its attorneys’ duplication of
effort and deficient time entries and holding that a “fixed
reduction is appropriate” where a large number of time entries
are deficient); Kennecott Corp. v. EPA, 804 F.2d 763, 767
(D.C. Cir. 1986) (“A fee award may be discounted as a result
of poor documentation.”).
III. CONCLUSION
For the reasons set forth above, the district court’s order
awarding Washtech attorney’s fees is affirmed.
KAVANAUGH, Circuit Judge, dissenting: Plaintiff
Washtech sued to challenge a 2008 rule issued by the
Department of Homeland Security. Washtech sought to have
the rule vacated. Washtech succeeded: The District Court
vacated the rule. The fact that Washtech raised a number of
different arguments against the 2008 rule, but prevailed on
only one, does not matter for attorney’s fees purposes,
because that one winning argument afforded Washtech the
result that it sought. As the Supreme Court has stated:
“Litigants in good faith may raise alternative legal grounds
for a desired outcome, and the court’s rejection of or failure to
reach certain grounds is not a sufficient reason for reducing a
fee. The result is what matters.” Hensley v. Eckerhart, 461
U.S. 424, 435 (1983). Based on that Hensley v. Eckerhart
principle, I would vacate the District Court’s order and
remand for recalculation of fees without penalizing Washtech
for having raised alternative grounds for relief. I respectfully
dissent from the majority opinion’s contrary decision.