G.H. Daniels III & Associates, Inc. v. Acosta

          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 ...