United States District Court, D. Colorado
G.H. DANIELS III & ASSOCIATES, INC., and HANDY ANDY SNOW REMOVAL, Plaintiffs,
v.
ALEXANDER ACOSTA, Secretary of the U.S. Department of Labor, JANET NAPOLITANO, Secretary of U.S. Department of Homeland Security, HILLARY RODHAM CLINTON, Secretary of State, and ERIC H. HOLDER, JR., United States Attorney General, Defendants.
ORDER DENYING PLAINTIFFS' AMENDED MOTION FOR
ATTORNEY'S FEES, COSTS, AND EXPENSES
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiffs G.H. Daniels &
Associates, Inc. and Handy Andy Snow Removal's Amended
Motion for Attorney's Fees, Costs, and Expenses. (Doc. #
101.) Plaintiffs request that the Court award them
attorney's fees, costs, and expenses in the amount of
$84, 575.25, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A).
(Id. at 1, 13.) Because Defendants' (“the
Government”) pre-litigation and litigation positions
were substantially justified, the Court denies
Plaintiffs' Motion.
I.
BACKGROUND
The
Court's previous Order Granting the Government's
Motion to Dismiss detailed the factual background and the
relevant statutory and regulatory regime and is incorporated
herein. (Doc. # 54.) Plaintiffs, two employers in Colorado,
alleged multiple claims that challenged the Department of
Labor's (“DOL”) authority to promulgate
legislative rules with respect to the H-2B visa program and
the denial of their own applications. (Doc. # 2.) In short,
Plaintiffs argued that the Department of Homeland Security
(“DHS”) exceeded its statutory authority when it
delegated rulemaking authority to DOL and that, therefore,
DOL lacked authority to promulgate new rules governing the
H-2B application process in December 2008. See
generally (id.)
A.
THE STATUTORY AND REGULATORY REGIME
The
regulations at issue in this case concern the H-2B visa
program, which enables the recruitment of unskilled, foreign
workers for non-agricultural jobs. See Immigration
Reform and Control Act of 1986 (“IRCA”), Pub. L.
No. 99-603, § 301(a), 100 Stat. 3359, 3411. IRCA defines
an H-2B worker as an alien who “ha[s] a residence in a
foreign country which he has no intention of abandoning who
is coming to the United States to perform [non-agricultural]
temporary service or labor if unemployed persons capable of
performing such service or labor cannot be found in this
country.” 8 U.S.C. § 1101(a)(15)(H)(ii)(b). IRCA
confers broad authority and discretion regarding the issuance
of nonimmigrant visas generally. See 8 U.S.C. §
1184(a)(1).
The
Immigration and Nationality Act (“INA”),
IRCA's predecessor, charged the United States Attorney
General, “after consultation with appropriate
agencies of the Government, ” with determining
whether to issue H-2B visas. 8 U.S.C. § 1184(a)(1)
(emphasis added). The Attorney General delegated his
responsibilities to the Immigration and Naturalization
Service, which “in turn, relie[d] on the Secretary of
Labor for the initial determinations.” See Alfred
L. Snapp & Son, Inc. v. Puerto Rico, ex.,
Barez, 458 U.S. 592, 595 (1982). In 2002, Congress
abolished the Immigration and Naturalization Service and
transferred responsibility for the administration of the H-2B
visa program, and all other immigration laws, to DHS.
Homeland Security Act of 2002, Pub. L. No. 107-296,
§§ 402, 417, 116 Stat. 2135 (2002); see
also 6 U.S.C. § 236(c).
Historically,
DHS and DOL regulated H-2B visa applications through informal
guidelines. See Comite de Apoyo a los Trabajadores
Agricolas v. Solis, No. 09-240, 2010 WL 3431761, at *2
(E.D. Pa. Aug. 30, 2010), aff'd, La.
Forestry Ass'n v. Sec'y U.S. Dep't of Labor,
745 F.3d 653 (3d Cir. 2012). On December 19, 2008, after
receiving and considering public comments, DHS and DOL both
promulgated new rules for the H-2B visa application process.
See 8 C.F.R. § 214; 20 C.F.R. §§
655-56.
Under
the new rules, an employer seeking to hire unskilled foreign
workers pursuant to H-2B visas must first obtain a temporary
labor certification from DOL. See 20 C.F.R. §
655.10; 8 C.F.R. § 214.2(h)(6)(iii)(C). The employer
must obtain a prevailing wage determination from DOL and then
follow a standardized recruitment regime to test the
appropriate labor market. Upon completing the recruitment
requirements, the employer must file an application for the
temporary labor certification and a recruitment report with
DOL. 20 C.F.R. § 655.15(a). By filing an application,
the employer attests that it has complied with the
recruitment and other requirements of the H-2B regulations.
See 20 C.F.R. § 655.15. If DOL determines that
the employer has made all necessary attestations and
assurances, but the application fails to comply with one or
more of the criteria for certification, DOL must issue a
request for further information to the employer within seven
days of receipt of the application. 20 C.F.R. §
655.23(c). An employer may appeal a denied application for
the certification to the Board of Alien Labor Certification
Appeals (“BALCA”), a unit of DOL, under an
expedited appellate review process. 20 C.F.R. § 655.61.
Only
once an employer has obtained a temporary labor certification
from DOL may it petition DHS for H-2B visas. See 8
C.F.R. § 214.2(h)(6)(iv)(A) (an H-2B petition for
temporary employment to DHS must “be accompanied by an
approved temporary labor certification from [DOL] stating
that qualified workers in the United States are not available
and that the alien's employment will not adversely affect
wages and working conditions of similarly employed United
States workers.”).
B.
THIS COURT'S RULING ON THE GOVERNMENT'S MOTION TO
DISMISS
Plaintiffs'
theory of the case was that in its 2008 regulations, DHS
impermissibly subdelegated its responsibility for the H-2B
visa program by giving DOL authority to issue and deny
requisite temporary labor certifications and that DOL
therefore lacked authority to publish its 2008 regulations on
the certification process. See generally (Doc. # 2.)
Plaintiffs also charged DOL with an “unlawful”
denial of Plaintiff G.H. Daniels & Associates, Inc.'s
request for a temporary labor certification in 2012.
(Id. at 2, 61.)
The
Government moved to dismiss all claims for failure to state
claims under Federal Rule of Civil Procedure 12(b)(6) on
October 9, 2012. (Doc. # 43.) As to DHS's regulations
requiring a temporary labor certification from DOL as a
prerequisite to H-2B visas, the Government argued that
DHS's consultation with DOL was authorized by IRCA, 8
U.S.C. § 1184, and the INA, and constituted “a
reasonable reliance on DOL, which has special competence in
making market determinations.” (Id. at 26-28.)
As to DOL's rulemaking authority, the Government argued
that the text, structure, and history of the INA indicated
Congress's intent to grant rulemaking authority to DOL in
its consultative role with DHS. (Id. at 14-15.) The
Government extensively cited Louisiana Forestry
Association, Inc. v. Solis (“CATA
IV”), 889 F.Supp.2d 711 (E.D. Pa. 2012), to
broadly define “consultation” as used in the INA.
(Doc. # 43 at 15.) Finally, the Government contended that
DOL's denial of G.H. Daniels & Associates, Inc.'s
temporary labor certification in 2012 was reasonable because
DOL and the BALCA determined that it failed to comply with
certain regulatory requirements. (Id. at 24.)
This
Court agreed with the Government and granted its Motion to
Dismiss on September 17, 2013. (Doc. # 54.) As to
Plaintiffs' general challenges to the validity of
DHS's and DOL's rules for the H-2B program, the Court
determined that Plaintiffs failed to state a claim that DHS
exceeded its statutory authority when it delegated rulemaking
authority to DOL. (Id. at 7.) The Court explicitly
adopted the reasoning of CATA IV. (Id. at
6-12.) It determined that DHS's interpretation of
“consultation” in the INA, 8 U.S.C. §
1184(c)(1), was reasonable (Doc. # 54 at 8), and that
DOL's rulemaking authority could be inferred from
history, text, structure, and objectives of the relevant
statutes (id. at 9-12). As to Plaintiffs'
specific challenge to DOL's denial of G.H. Daniels &
Associates, Inc.'s 2012 application, this Court concluded
that Plaintiffs failed to state a claim for mandamus relief.
(Id. at 14-15.) To the extent Plaintiffs'
Complaint could be read to assert a claim under the
Administrate Procedure Act (“APA”), 5 U.S.C.
§ 706, the Court found that Plaintiffs offered no
specific factual allegations to demonstrate the agencies'
decisions ...