# Issue date: August 9, 2023

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A69ded2f092287e27

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Issue date: August 9, 2023
ARB Case No.: 2021-0047
ALJ Case No.: 2018-TNE-00022
In the Matter of:
ADMINISTRATOR, WAGE AND
HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
Petitioner
v.
GRAHAM AND ROLLINS, INC.,
Respondent.
BEFORE:

JULIE A. SU
Acting Secretary of Labor
FINAL AGENCY DECISION AND ORDER

On December 22, 2022, a divided Administrative Review Board (“ARB” or “Board”) issued a
Decision and Order (“DO”) regarding fees and costs under the Equal Access to Justice Act
(“EAJA”) in this matter. Pursuant to Section 6(b)(2) of Secretary’s Order 01-2020, 85 Fed. Reg.
13186, 13188 (Mar. 6, 2020), the Secretary of Labor may “[a]t any point during the first 28
calendar days after the date on which a decision was issued . . . in [their] sole discretion, direct
the Board to refer such decision to the Secretary for review.” On January 19, 2023, the Secretary
of Labor exercised this discretionary authority to undertake further review of the ARB’s
Decision in this matter.1 The ARB thereafter promptly provided the administrative record in
accordance with Section 6(c)(1) of Secretary’s Order 01-2020.
After reviewing the record, and as discussed further below, I now issue this Final Agency
Decision and Order reversing in part and affirming in part the ARB’s December 22, 2022, DO.
I.

Background

This case originally arose out of an enforcement action by the Wage and Hour Division
(“WHD”) Administrator (“Administrator”) against the Respondent, Graham & Rollins, Inc.
(“Respondent”), under the H-2B provisions of the Immigration and Nationality Act (“INA”).
1

On March 11, 2023, I became Acting Secretary of Labor.

After an investigation, WHD issued a determination letter on February 13, 2018. WHD found
that Respondent, a crab meat processing business and employer of nonimmigrant workers under
the H-2B provisions of the INA (“H-2B program”), had committed violations of the H-2B
program during 2011 and 2012, and ordered Respondent to pay a total of $16,560. See Adm’r v.
Graham & Rollins, Inc., ALJ Case No. 2018-TNE-22, slip op. at 8–11 (OALJ June 26, 2018). 2
Respondent moved to dismiss WHD’s determination on the grounds that the enforcement action
was barred by a statute of limitations. The Administrator opposed, contending that no statute of
limitations applied to the proceeding at issue. The ALJ granted Respondent’s motion, concluding
that the 5-year limitation period of 28 U.S.C. § 2462 applied, and the ARB affirmed the ALJ’s
decision. Adm’r v. Graham & Rollins, Inc., ARB Case No. 19-009, 2020 WL 7319287, at *1
(ARB Nov. 16, 2020). Thereafter, Respondent filed a motion for attorney’s fees under EAJA.
II.

Decisions Below

On May 19, 2021, the ALJ issued a Recommended Decision and Order Awarding Attorney’s
Fees (“Recommended Order”). The ALJ concluded that EAJA applied to the H-2B enforcement
proceeding at issue, focusing on the Department’s regulations. Recommended Order 4. The ALJ
determined that although H-2B proceedings are not included in the list of proceedings the
Department has deemed to be “adversarial adjudications” subject to EAJA, see 29 C.F.R. §
16.104(a), the proceedings were nonetheless subject to EAJA because the “entire nature and
conduct of the proceeding was adversarial” because “the position of the government was . . .
presented by an attorney . . . who . . . participated in the proceeding in an adversarial capacity.”
Recommended Order 4. The ALJ also concluded that Respondent was entitled to fees and costs
under EAJA because the Administrator had not shown that the government’s position in this
proceeding was “substantially justified.” Id. at 5. The Administrator filed a motion to vacate the
ALJ’s decision, arguing that it was void for lack of subject matter jurisdiction as EAJA does not
apply to H-2B enforcement proceedings; the ALJ denied the Administrator’s motion. Order
Denying Mot. to Vacate (Sept. 24, 2021).
On December 22, 2022, the ARB affirmed the ALJ’s decision in part and reversed it in part. DO
2. By a 2-1 majority, the ARB affirmed the ALJ’s conclusion that the Department’s H-2B
enforcement proceedings are subject to EAJA. All three members of the Board agreed that under
EAJA, to constitute an “adversary adjudication,” defined in EAJA as “an adjudication under
section 554 of” the Administrative Procedure Act (“APA”) “in which the position of the United
States is represented by counsel or otherwise,” a proceeding must have three elements: there
must be an adjudication; “the adjudication must be required by statute to be determined ‘on the
record’”; and “the statute must provide an ‘opportunity for an agency hearing.’” DO 5, 6, 37. All
three judges further agreed that the only issue that the parties disputed was whether H-2B
enforcement adjudications are “required by statute to be ‘determined on the record.’” Id. at 8 37.
The majority and dissent diverged, however, in their conclusions on this question. The majority,
while acknowledging that the INA does not state that an H-2B enforcement proceeding must be
2

This case involved alleged violations of the regulations at 20 C.F.R. Part 655 as codified by the
Final Rule published on December 19, 2008 (“2008 Rule”). See DO 7 n.24 (citing 73 Fed. Reg.
78,020 (Dec. 19, 2008)).
2

on the record and that the scope of EAJA, as a waiver of sovereign immunity, must be “strictly
construed” “in favor of the United States,” nonetheless determined that “Congress intended that
H-2B enforcement proceedings be conducted on the record” due to the “quasi-judicial nature” of
such proceedings, which “involve disputed adjudicatory facts decided on the basis of an
evidentiary record” and which can result in “administrative remedies . . . including civil
monetary penalties and debarment.” Id. at 9, 18, 23. The majority based this conclusion primarily
on its reading of the APA’s legislative history—in particular, the 1947 Attorney General’s
Manual on the APA (“APA Manual”). Id. at 12; see also id. at 21 n.83. It determined that “‘on
the record’ language is not necessary” for “those quasi-judicial administrative adjudications that
are inherently adjudicatory in nature,” since section 554 of the APA is “presumed” to apply to
such proceedings. Id. at 12 (citing APA Manual at 42). And it concluded that H-2B enforcement
proceedings fall within this category. Id. at 23.
In contrast, the Chief Judge, in her partial dissent, concluded, based on the “language, context,
[and] history” of the H-2B enforcement provision, that Congress did not intend H-2B
enforcement proceedings to be on the record. Id. at 38. She found it “notable” that the INA
provision governing H-2B enforcement proceedings does not state that such proceedings must be
on the record or “otherwise reference or incorporate APA section 554[.]” Id. at 39 (construing 8
U.S.C. § 1184(c)(14)(A)). Although the Chief Judge agreed with the majority that “Congress
need not necessarily explicitly state . . . that proceedings must be ‘on the record’ to invoke
[section 554 of] the APA,” id., she reasoned that the absence of such language in the H-2B
enforcement provision is significant because Congress expressly invoked section 554 in several
other enforcement provisions of the INA, id. at 39–40 (citing, e.g., 8 U.S.C. §§ 1324a(e)(3)(B),
1324c(d)(2)(B)), 1375a(d)(5)(A)(ii)). She thus concluded that Congress’s omission of such
language from the H-2B enforcement provision should be regarded as “an intentional and
meaningful choice[.]” Id. at 40. The Chief Judge disagreed with the majority’s conclusion that
Congress intended that “quasi-judicial . . . proceedings” be conducted “on the record,” noting
that multiple courts have held that “the statutory obligation to provide a hearing and the statutory
obligation to make a determination ‘on the record’ are independent, discrete procedural”
requirements. Id. at 43 (citing, e.g., Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121,
1125 (7th Cir. 2008); Friends of the Earth v. Reilly, 966 F.2d 690, 692–96 (D.C. Cir. 1992); and
St. Louis Fuel & Supply Co., Inc. v. FERC, 890 F.2d 446, 448–49 (D.C. Cir. 1989)). And she
noted that in the EAJA context, these conclusions were “reinforce[d]” by “the well-established
convention that waivers of sovereign immunity must be strictly construed.” Id. at 37–38 n. 156.
Although the ARB was divided on whether EAJA applies to H-2B enforcement proceedings, all
three members agreed that the Administrator’s position in this matter regarding the statute of
limitations was substantially justified and reasonable even though the Administrator did not
prevail. Therefore, the ARB unanimously reversed the ALJ’s award of fees and costs under
EAJA. Id. at 28, 34–36.
On January 5, 2023, the Principal Deputy Administrator of WHD filed a Petition for Secretarial
Review of the ARB majority’s conclusion that EAJA applies to H-2B enforcement proceedings.
Respondent filed an opposition to the petition on January 17, 2023. On January 19, 2023, the

3

Secretary of Labor notified the Board of the Secretary’s determination to exercise discretion to
undertake further review pursuant to section 6(b)(2) of Secretary’s Order 01-2020. 3
III.

Analysis
A. Standard of Review

Whether EAJA’s fee-shifting provisions apply to an H-2B administrative enforcement
proceeding is a question of statutory interpretation that I review de novo. See Eno v. Jewell, 798
F.3d 1245, 1250 (9th Cir. 2015); cf. Application of Section 1804 of the Atomic Energy Act of
1954, as Amended by the Energy Policy Act of 1992, to Decontamination and Decommissioning
Work Performed at the Department of Energy's Y-12 National Security Complex, Oak Ridge,
Tenn., ARB No. 11-083, 2013 WL 4715031, at *3 (ARB Aug. 8, 2013) (noting that the ARB,
“[a]s an administrative appellate body standing in the shoes of the Secretary of Labor . . .
review[s] de novo pure questions of law, a traditional role of an appellate body”).
B. Governing Legal Framework
i.

Sovereign Immunity

It is an “elementary” principle of federal law that sovereign immunity shields the United States
and its agencies from suit absent a waiver by Congress. United States v. Mitchell, 445 U.S. 535,
538 (1980); see F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign
immunity shields the Federal Government and its agencies from suit.”). The Supreme Court and
the Courts of Appeals have set forth “crystal clear” principles for determining whether Congress
has waived the United States’ immunity from a claim for monetary damages. Peck v. ARB, 996
F.3d 224, 229 (4th Cir. 2021) (citing, e.g., FAA v. Cooper, 566 U.S. 284, 290 (2012)). First, such
a waiver must be established by the statutory text itself, not by legislative history, United States
v. Nordic Village Inc., 503 U.S. 30, 37 (1992), or by an agency’s regulation, Friends of the
Earth, 966 F.2d at 695. Additionally, as the Supreme Court has made clear and the ARB has
consistently recognized, a waiver of sovereign immunity “must be ‘unequivocally expressed’ in
statutory text,” not merely implied. Peck v. NRC, ARB Case No. 2017-0062, 2019 WL 7285749,
at *7 (ARB Dec. 19, 2019) (quoting Lane v. Peña, 518 U.S. 187, 192 (1996)), aff’d, Peck, 996
F.3d 224; see Cooper, 566 U.S. at 290; Mitchell, 445 U.S. at 538; see also, e.g., Tindall v. Dep’t
of the Treasury, ARB Case No. 2022-0030, 2022 WL 1997482, at *1 (ARB May 16, 2022); Mull
3

Secretary’s Order 01-2020 provides for two mechanisms by which the Secretary may review an
ARB decision. Under section 6(b)(1), a party to the case may file a petition to the Board for
further review, and if a majority of the Board determines that review by the Secretary is
warranted, it so advises the Secretary, who may decline, accept, or take no action on the Board’s
referral. Under section 6(b)(2), the Secretary, at any point within 28 days of the decision, may
direct the Board to refer the decision to the Secretary. Section 6(b)(1), Board referral upon
petition, is limited to cases where the petition “presents a question of law that is of exceptional
importance,” while section 6(b)(2), the section under which the Secretary has undertaken
discretionary review in this case, contains no such limitation. Thus, the “exceptional importance”
standard need not be addressed here.
4

v. Salisbury Vets. Admin. Med. Ctr., ARB Case No. 09-107, 2011 WL 3882479, at *2 (ARB
Aug. 31, 2011).
Consistent with the high threshold for a waiver of sovereign immunity, any statutory ambiguities
are construed in favor of the government and against a waiver—both as to whether Congress has
waived immunity at all and as to the scope of any waiver. Cooper, 566 U.S. at 290–91; Ardestani
v. I.N.S., 502 U.S. 129, 137 (1991); Lane, 518 U.S. at 192 (“To sustain a claim that the
Government is liable for awards of monetary damages, the waiver of sovereign immunity must
extend unambiguously to such monetary claims.”). While this rule of construction does not
require Congress to “use magic words,” Cooper, 566 U.S. at 291, or displace other interpretative
canons, Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 589 (2008), it “require[s]” that if
“the scope of Congress’ waiver” is not “clearly discernable from the statutory text in light of
traditional interpretive tools,” a reviewing court must “take the interpretation [of the statute]
most favorable to the Government.” Cooper, 566 U.S. at 291.
ii.

EAJA and Adversary Adjudications

The provisions of EAJA relevant here allow a party that prevails against the government in an
administrative “adversary adjudication” to recover attorney’s fees and costs unless the
government’s position was “substantially justified” or “special circumstances make an award
unjust.” 5 U.S.C. § 504(a)(1). EAJA defines “adversary adjudication,” with certain exceptions
not relevant here, as “an adjudication under section 554 of this title in which the position of the
United States is represented by counsel or otherwise[.]” Id. § 504(b)(1)(C)(i).
The phrase “section 554 of this title” in EAJA references a section of the APA that delineates a
detailed set of procedural safeguards and requirements for the subset of agency adjudications that
are “required by statute to be determined on the record after opportunity for an agency hearing.”
5 U.S.C. § 554(a). An adjudication governed by section 554 “must feature the following
procedural components: an impartial and unbiased presiding officer, id. § 556(b); notice and an
opportunity to participate in the hearing, id. § 554(c); the right of the parties to appear with
counsel, id. § 553(b); the right to present oral and written evidence (including rebuttal evidence)
and to conduct such cross-examination as is required for a full and true disclosure of the facts, id.
§ 556(d); the right to submit proposed findings, conclusions and exceptions, id. § 557(c); the
compilation of an exclusive record upon which the agency must base its decision, id. § 556(e);
and limitations on ex parte communications and on the combination of prosecutorial and
adjudicative functions, id. § 554(d).” St. Louis Fuel, 890 F.2d at 448.
The Supreme Court has explained that the “unambiguous” meaning of “an adjudication under
section 554” in EAJA is that the proceedings at issue must actually be “governed by the
procedural provisions established in . . . that section,” and may not merely be a similar type of
proceeding. Ardestani, 502 U.S. at 134–35. That is, Congress must have manifested an intent for
the particular administrative proceedings at issue to be governed by section 554 and subject to all
of its requirements. See St. Louis Fuel, 890 F.2d at 448–49. Additionally, because EAJA
constitutes a partial waiver of the United States’ sovereign immunity with respect to fees and
costs under the “adversary adjudication[s]” described in the statute, it “must be strictly construed
in favor of the United States.” Ardestani, 502 U.S. at 137. Thus, the question here is whether
5

Congress manifested a clear intent for enforcement proceedings under the H-2B program to be
governed by, and subject to all of the procedures specified in, 5 U.S.C § 554.
iii.

Enforcement Proceedings Under The H-2B Program

The H-2B program permits the employment of nonimmigrants to perform temporary, nonagricultural labor or services 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). An employer seeking to hire
nonimmigrant workers under the H-2B program must obtain a certification from the Department
of Labor that these workers “will not adversely affect the wages and working conditions of U.S.
workers similarly employed” before the employer petitions the Department of Homeland
Security (“DHS”) to employ H-2B workers. 20 C.F.R. § 655.1(b) (2009).
In 2005, Congress enacted the provisions by which the Department enforces the labor provisions
of the H-2B program. See Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005, Div. B, The Real-ID Act, § 404, Pub. L. No. 109–13,
119 Stat. 231, 319 (2005). Congress authorized the Secretary of Labor, by delegation from the
Secretary of Homeland Security, to impose administrative remedies and take other action against
an employer if the Secretary “finds, after notice and an opportunity for a hearing, a substantial
failure to meet any of the conditions of the petition to admit or otherwise provide status to a
nonimmigrant [H-2B] worker . . . .” Id. (codified at 8 U.S.C. § 1184(c)(14)(A)).
C. The Board Erred in Concluding that an H-2B Enforcement Proceeding is
an Adversary Adjudication Subject to EAJA.
The ARB majority erred in concluding that an H-2B enforcement proceeding is an adversary
adjudication subject to EAJA. As the Board unanimously agreed, there is no dispute that an H2B enforcement proceeding is an adjudication and that the statute provides an opportunity for a
hearing. See DO 8, 38. But the majority erred in concluding that an H-2B enforcement
proceeding must be conducted “on the record,” as required for a proceeding to be governed by 5
U.S.C. § 554. As discussed below, the majority failed to give sufficient weight to the text of the
INA, which contains no evidence, let alone a clear statement, of Congressional intent to require
that H-2B enforcement proceedings be conducted on the record or subject to section 554.
Instead, the majority, relying almost entirely on the Attorney General’s APA Manual, concluded
that the mere reference to a “hearing” in the H-2B statutory text and the nature of H-2B
enforcement proceedings as “quasi-judicial” provide a sufficient basis on which to conclude that
such proceedings are “on the record” and subject to EAJA. This conclusion is unsupported by
the relevant authorities and erroneously inverts the presumption in favor of sovereign immunity.
i.

The majority failed to focus on the text of the INA, which does not
clearly show that Congress intended to require that H-2B
proceedings be conducted on the record.

As a general matter, the text of a statute is the starting point for any statutory interpretation. See
BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (stating that “our inquiry begins
with the statutory text,” because “[t]he preeminent canon of statutory interpretation requires us to
6

presume that the legislature says in a statute what it means and means in a statute what it says
there” (internal quotations and citations omitted)). This principle applies with even greater force
when determining whether a statute waives sovereign immunity—a determination that must be
made in this case since, as the majority acknowledges, EAJA is a partial waiver of sovereign
immunity. See DO 4 (citing Ardestani, 502 U.S. at 137). As explained above, “waiver[s] of
sovereign immunity must be ‘unequivocally expressed’ in statutory text,” Cooper, 566 U.S. at
290, and “strictly construed in favor of the United States,” Ardestani, 502 U.S. at 137, and any
waiver “must extend unambiguously” to the specific monetary claims at issue, Lane, 518 U.S. at
192. Here, this means that Congress must have “indicated clearly its intent to trigger the formal
[, on-the-record] hearing provisions” of section 554 of the APA in the statute authorizing H-2B
enforcement proceedings for these proceedings to fall within EAJA’s partial waiver of
immunity. Five Points Rd., 542 F.3d at 1126 (internal citations omitted).
The text of the H-2B enforcement provision does not explicitly require the proceedings to be
conducted “on the record” or otherwise reference or incorporate APA section 554. DO 39. The
provision’s sole reference to the procedural requirements applicable to H-2B enforcement
proceedings is that the Secretary of Labor may impose certain remedies if the Secretary “finds,
after notice and an opportunity for a hearing, a substantial failure to meet any of the conditions
of the petition to admit . . . a nonimmigrant [H-2B] worker . . . or a willful misrepresentation of a
material fact in such petition[.]” 8 U.S.C. § 1184(c)(14)(A) (emphasis added).
This does not end the inquiry entirely, however, because EAJA applicability “does not turn,
mechanically, on the absence of magic words.” St. Louis Fuel, 890 F.2d at 448. Rather, courts
use traditional tools of statutory construction to determine whether “Congress intended to
require full agency adherence to all section 554’s procedural components” for a particular
administrative proceeding. Id. at 448–49 (emphasis in original). Such a determination
necessarily is specific to the statute establishing the administrative proceeding at issue.
For example, three courts of appeals have agreed that EAJA applies to “the statute[] creating and
implementing” the proceedings of the Department of Agriculture’s National Appeals Division
(“NAD”), 7 U.S.C. §§ 6991–7002, by examining the detailed hearing provisions in the NAD
statute. Aageson Grain & Cattle v. USDA, 500 F.3d 1038, 1044 (9th Cir. 2007); see Five Points
Rd., 542 F.3d at 1126; Lane v. USDA, 120 F.3d 106, 108–09 (8th Cir. 1997). As these courts
observed, the statute includes a description of the hearing officer’s powers and authority,
prohibitions on ex parte communications, burdens of proof and standards of review, and
critically, “repeated references to the record and [a] provision for trial-type procedures,” Five
Points Road, 542 F.3d at 1126; Lane, 120 F.3d at 109, and an explicit reference to the APA,
Aageson, 500 F.3d at 1045. These courts therefore concluded, based on “the text . . . as well as
the structure of the NAD statute . . . that Congress intended for NAD proceedings to be governed
by section 554 of the APA.” Five Points Road, 542 F.3d at 1126; see Aageson, 500 F.3d at 1044
(agreeing that “the statutes creating and implementing the NAD mandate each of the three
procedural protections in APA § 554”); Lane, 120 F.3d at 109 (“The repeated references to the
record in the NAD statute and its provision for trial-type procedures make it clear that Congress
intended for NAD proceedings to be governed by § 554 of the APA.”).

7

Similarly, the First Circuit concluded that EAJA applies to debarment proceedings under the
Service Contract Act (“SCA”), see 41 U.S.C. § 6507(a), following “a careful review of the
relevant statutory provisions” governing SCA debarment. Dantran, Inc. v. United States
Department of Labor, 246 F.3d 36, 47 (1st Cir. 2001). Specifically, the First Circuit explained
that the SCA incorporates by reference the enforcement authority of another statute, the WalshHealey Act, that, in turn, expressly requires compliance with the APA’s procedural
requirements. Id. “By that chain of relationship,” the court concluded, “all of the requirements
for EAJA coverage would be met.” Id. (construing provisions currently codified at, e.g., 41
U.S.C. §§ 6707(a), 6507, and 6509(a)).
In contrast, in cases where the statutory provision at issue does not demonstrate intent to apply all
of section 554’s required procedures, courts have concluded that EAJA does not apply. Thus, in
finding EAJA inapplicable to a provision of the Department of Energy (“DOE”) Organization
Act, 42 U.S.C. § 7193(c), the D.C. Circuit explained that although the statute ensured “the
opportunity to participate through the submission of briefs, oral or documentary evidence, and
oral arguments; cross-examination . . . ; and the issuance of an order, based on findings of fact,
which constitutes a final agency action subject to judicial review,” it nonetheless “provide[d]
something less than APA section 554 mandates.” St. Louis Fuel, 890 F.2d at 448–49. The court
also found it “significant” that unlike the provision at issue, other provisions in the same statute
did expressly invoke the APA. Id. at 449. Similarly, in another case, the D.C. Circuit concluded
that a hearing on the withdrawal of a state’s authorization to administer a hazardous waste
program under the Solid Waste Disposal Act (“SWDA”) was not covered by EAJA, finding it
“significant” that Congress “merely required a ‘public hearing’” “in enacting” the provision at
issue, 42 U.S.C. § 6926(e), while “it required a hearing ‘subject to section 554’” in the employee
protection section of the same statute, 42 U.S.C. § 6971(b). Friends of the Earth, 966 F.2d at 694.
An analysis of the H-2B provision at issue here, 8 U.S.C. § 1184(c)(14)(A), reveals that in
addition to the lack of any explicit “on the record” language or provision incorporating section
554 or the APA, there is no other textual evidence of Congressional intent—much less “clear[]”
intent, see Five Points Rd., 542 F.3d at 1126—to require that H-2B enforcement proceedings be
conducted on the record or in full compliance with section 554.
First, as the Chief Judge explained, “[u]nlike the H-2B enforcement provision[], several of the
other enforcement provisions Congress added elsewhere to the INA, both before and after the
2005 enactment of the H-2B enforcement provisions,” do “expressly invoke and incorporate
APA section 554.” DO 39. Specifically, the INA explicitly requires that hearings under a
provision governing the employment of unauthorized migrants (enacted in 1986), a provision
governing document fraud (enacted in 1990), and a provision governing international marriage
brokers (enacted in 2005) be conducted in accordance with section 554’s requirements.
Immigration Reform and Control Act of 1986, Pub. L. No. 99–603, § 101, 100 Stat. 3359, 3366
(codified as amended at 8 U.S.C. § 1324a(e)(3)(B)); Immigration Act of 1990, Pub. L. No. 101–
649, § 544, 104 Stat. 4978, 5060 (codified as amended at 8 U.S.C. § 1324c(d)(2)(B)); Violence
Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109–162,
§ 833, 119 Stat. 2960, 3074 (codified as amended at 8 U.S.C. § 1375a(d)(5)(A)(ii)); see DO 39
n.162. Similarly, as the Chief Judge pointed out, enforcement provisions in the INA’s H-1B, H1B1, and E-3 programs, some of which were enacted shortly before 2005, explicitly provide for
8

a hearing under APA section 556, which itself applies to hearings required by section 554. See
id. at 39–40 n.162 (citing Immigration Act of 1990, § 205 (codified as amended at 8 U.S.C. §
1182(n)(2)(B)); United States-Chile Free Trade Agreement Implementation Act, Pub. L. No.
108–77, § 402, 117 Stat. 909, 942 (2003) (codified as amended at 8 U.S.C. § 1182(t)(3)(B));
Consolidated Appropriations Act, 2005, Pub. L. No. 108–447, § 424, 118 Stat. 2809, 3355
(codified as amended at 8 U.S.C. § 1182(n)(2)(G)(viii))).4
These INA provisions demonstrate that when Congress intends for an immigration enforcement
proceeding to be subject to section 554’s procedures for formal adjudications, it is aware of the
language it can use to make such intent clear. The absence of any such language in the H-2B
enforcement provision is therefore much more significant than it might otherwise be in isolation.
See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular
language in one section of a statute but omits it in another . . ., it is generally presumed that
Congress act[ed] intentionally and purposely[.]”) (internal quotations and citations omitted). As
noted above, the D.C. Circuit has twice applied this principle in concluding that EAJA was
inapplicable to specific proceedings where other proceedings in the same statute explicitly
incorporated the APA or section 554. See St. Louis Fuel, 890 F.2d at 448–49; Friends of the
Earth, 966 F.2d at 694.
Second, the H-2B enforcement provision contains no other “affirmative indication of
[C]ongressional intent” to require adherence to all of section 554’s requirements. DO 44. Unlike
the NAD statute, which has been found to be subject to EAJA because of its detailed provisions
that repeatedly reference the administrative record and provide for trial-type procedures, Five
Points Rd., 542 F.3d at 1126; Aageson, 500 F.3d at 1044; Lane, 120 F.3d at 109, the H-2B
statute sets forth no procedural requirements whatsoever beyond “notice and an opportunity for a
hearing.” 8 U.S.C. § 1184(c)(14)(A). Nor does the H-2B enforcement provision cross-reference
other provisions explicitly incorporating section 554’s requirements, as the SCA debarment
provision does. Dantran, 246 F.3d at 47. The text of the H-2B statute thus does not provide any
evidence that Congress intended for H-2B enforcement proceedings to be “on the record.”
I have evaluated the majority and Respondent’s arguments on the above points and do not find
them persuasive. While I agree that the presumption described in Russello that ascribes meaning
to the inclusion of certain language in one statutory provision and its omission in another is not
irrebuttable, it is not, as the majority appears to suggest, DO 21–22 n.87, limited to
circumstances where the textual differences occur in the same legislation. Rather, it is simply
strongest under those circumstances, and continues to apply where the disparate provisions of
the same statute were enacted at different times. Orton Motor, Inc. v. HHS, 884 F.3d 1205, 1214
(D.C. Cir. 2018). Moreover, as discussed above, many of the INA enforcement provisions that
4

Additionally, as the Chief Judge noted, “Congress expressly invoked APA section 554, or
expressly dictated that agency determinations must be made ‘on the record,’ in numerous other
enforcement and whistleblower statutes entrusted to the Secretary of Labor and, by delegation, to
the Board.” DO 39–40 n.163 (citing, e.g., the whistleblower provision of the Clean Air Act, 42
U.S.C. § 7622(b)(2)(A), the whistleblower provision of the Energy Reorganization Act, 42
U.S.C. § 5851(b)(2)(A), and the provision governing civil monetary penalties under the Fair
Labor Standards Act, 29 U.S.C. § 216(e)(4)).
9

do explicitly incorporate the APA were enacted in close temporal proximity to the H-2B
enforcement provision. Against this backdrop, the exceedingly sparse textual description of H2B procedure—“notice and an opportunity for a hearing”—suggests no intent to include the full
panoply of protections that several other provisions in the INA explicitly incorporated.
The majority also points to a statutory note accompanying the 2005 legislation that established
the H-2B enforcement provisions, the Real ID Act, noting that “Congress excluded formal APA
procedure from several sections of the Real ID Act to allow for faster agency implementation of
the statutory language.” DO 23 n.90 (citing Pub. L. No. 109–13 § 407, 119 Stat. 231, 321). But
to the extent that the majority reads this note as indicative of Congressional intent to apply the
requirements of section 554 of the APA to H-2B enforcement proceedings, this is a misreading.
The note exempted several rulemaking provisions of the Real ID Act from the APA and other
laws so that they could be implemented quickly.5 Nothing in this provision manifests an
affirmative intent that H-2B enforcement adjudications be subject to section 554’s “on the
record” requirement. Certainly, this statutory note falls well short of the clear evidence of
Congressional intent needed to waive sovereign immunity under EAJA.
ii.

The majority erred in presuming that H-2B hearings are subject to
EAJA.

As the above discussion makes clear, the H-2B provisions of the INA contain no language
indicating that Congress intended to require that enforcement proceedings be conducted on the
record. To the contrary, the H-2B statutory text provides only for “notice and an opportunity for
a hearing.” The plain reading of this language, therefore, is that H-2B proceedings require a
hearing but not that the hearing be on the record, and thus EAJA does not apply.6
The majority nonetheless concluded that Congress intended to impose an on-the-record
requirement on H-2B enforcement proceedings, determining that such a requirement is
“presumed” to apply to all “quasi-judicial” adjudicative hearings required by statute and
suggesting that Congress must have taken some affirmative steps to preclude application of this
requirement to H-2B enforcement proceedings for EAJA not to apply. DO 22–23. The majority
5

Specifically, the note provides that “[t]he requirements of [the APA] or any other law relating
to rulemaking, information collection or publication in the Federal Register shall not apply to
any action to implement” new provisions addressing “numerical limitations on H-2B workers”
(section 402); the establishment of “a fraud prevention and detection fee” (section 403); and the
“allocation of H-2B visas” for each fiscal year (section 405) “to the extent that [the relevant
federal agency heads] determine that compliance with any such requirement would impede the
expeditious implementation of such sections[.]” Pub. L. No. 109–13 § 407 (emphases added).
6

This is particularly the case in light of the rule against surplusage, which requires courts “to give
effect, if possible, to every clause and word of a statute,” Duncan v. Walker, 533 U.S. 167, 174
(2001) (internal quotations and citations omitted); see Barton v. Barr, 140 S. Ct. 1442, 1458
(2020) (describing the rule against surplusage as “[a]mong the most basic interpretative canons”)
(internal quotations and citations omitted). By interpreting the word “hearing” as encompassing
both the hearing and the on-the-record elements, the majority’s view fails to give effect to all of
the relevant language in EAJA and the APA. See 5 U.S.C. §§ 504(a)(1), (b)(1)(C), 554(a).
10

derived this presumption in significant part from its reading of the Attorney General’s 1947 APA
Manual, though it also purported to find support in some of the above-cited cases. See id. at 12–
18, 22. As discussed below, the majority’s approach is contrary to well-established sovereign
immunity principles and misconstrues the relevant caselaw.
1. The majority’s analysis impermissibly inverts the presumption in
favor of sovereign immunity.
When examining a waiver of sovereign immunity such as EAJA, “the presumption [is] against
waiver of sovereign immunity,” Friends of the Earth, 966 F.2d at 696 (emphasis added), and can
only be overcome by clear and “unequivocal” statutory text. See, e.g., Peck, 2019 WL 7285749
at *4 (“The extent of the federal government’s waiver of sovereign immunity … [is] defined by
the language of the waiver,” which “must be ‘unequivocally expressed[.]’”) (quoting Lane, 518
U.S. at 192); Mull, 2011 WL 3882479 at *3 (citing Lane, 518 U.S. at 192). Although the ARB
has acknowledged and applied these principles in previous cases,7 it failed to do so here. Any
notion that EAJA applies to all “quasi-judicial” proceedings unless Congress takes some action
to preclude its application necessarily “inverts the presumption against waiver[.]” Friends of the
Earth, 966 F.2d at 696. The majority’s assumption that H-2B enforcement proceedings are
covered by EAJA is thus contrary to bedrock sovereign immunity principles.
While it acknowledged the presumption against waiver, the majority contended that its
application in this case was “particularly difficult” because “three statutes [EAJA, the INA, and
the APA] are in play” and because of what it described as EAJA’s “conditional features.” DO
18, 19. It also emphasized that the Supreme Court has described this principle as “a canon of
construction” and has noted that “canons are not mandatory rules.” Id. at 19 (quoting Richlin,
553 U.S. at 589–90, and Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001)). Similarly,
Respondent argued that the principle regarding strict construction of waivers of sovereign
immunity is inapplicable because, in its view, “there is no doubt or ambiguity regarding whether
Congress waived sovereign immunity through EAJA.” Resp. Br. 22.
These arguments, however, are foreclosed by the Supreme Court’s decision in Ardestani. Like
this case, Ardestani concerned whether certain proceedings under the INA were covered by the
APA and EAJA, and therefore involved the same “three statutes” and “conditional features.”
7

Other examples of the ARB applying sovereign immunity principles include Tindall, 2022 WL
1997482, at *5 (whistleblower provision of the Taxpayer First Act did not waive Treasury
Department’s sovereign immunity); Mull, 2011 WL 3882479, at *9 (Energy Reorganization Act
whistleblower provision does not waive sovereign immunity of Federal licensee of the Nuclear
Regulatory Commission); Erickson v. EPA, ARB Case Nos. 03-002, 03-003, 03-004, 03-064,
2006 WL 1516646, at *8 (ARB May 31, 2006) (Environmental Protection Agency’s sovereign
immunity waived by Clean Air Act and Solid Waste Disposal Act whistleblower provisions but
not by Federal Water Pollution Prevention and Control Act whistleblower provision). See also
Cody-Ziegler et. al. v. WHD Admin., ARB Case Nos. 01-014 01-015, 2003 WL 23114278, at *11,
n.7 (ARB Dec. 19, 2003) (noting that the ARB has held that Davis-Bacon Act administrative
proceedings are not subject to EAJA and indicating that such waivers of sovereign immunity
“must be strictly construed in favor of the sovereign”).
11

There, the Court emphasized that “[t]he EAJA renders the United States liable for attorney’s fees
for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign
immunity,” and invoked the principle that “[a]ny such waiver must be strictly construed in favor
of the United States” in rejecting arguments that EAJA applied to the proceedings at issue.
Ardestani, 502 U.S. at 137. See also Friends of the Earth, 966 F.2d at 696 (citing Ardestani in
concluding that sovereign immunity principles apply when determining if a proceeding must be
on the record under EAJA); St. Louis Fuel, 890 F.2d at 449–50 (declining to conclude that EAJA
applied to the proceedings at issue “because we are bound to honor the canon that waivers of the
sovereign’s immunity must be strictly construed”). Thus, the principle that waivers of sovereign
immunity must be narrowly construed applies with no less force in this case than elsewhere.
2. The Attorney General’s Manual on the APA does not support
EAJA coverage of H-2B enforcement proceedings.
The majority’s error is compounded by its reliance on legislative history rather than statutory text.
As noted above, the majority concluded that the APA’s on-the-record requirement is “presumed”
to apply to all “quasi-judicial” adjudicative hearings required by statute. DO 12, 22–23. It based
this conclusion principally on the APA Manual, which provides, in relevant part, “It is believed
that with respect to adjudication the specific statutory requirement of a hearing, without anything
more, carries with it the further requirement of decision on the basis of the evidence adduced at
the hearing.” APA Manual at 43. Respondent’s brief likewise cited the APA Manual for this
proposition. Resp. Br. 15–16.
The majority and Respondent’s reliance on the APA Manual is misplaced. First, while legislative
history can be a valuable aid in statutory construction, “[l]egislative history cannot supply a
waiver that is not clearly evident from the language of the statute.” Cooper, 566 U.S. at 290
(citing Lane, 518 U.S. at 192). Rather, “‘the ‘unequivocal expression’ of elimination of
sovereign immunity that [the Supreme Court] insist[s] upon is an expression in statutory text.’”
Lane, 518 U.S. at 192 (quoting Nordic Vill., 503 U.S. at 37). Thus, the APA Manual is not a
substitute for statutory language showing that Congress clearly intended for H-2B enforcement
proceedings to be conducted on the record—language that the H-2B statute lacks, as explained
above. The ARB has recognized the minimal relevance of legislative history in determining
whether Congress has waived sovereign immunity, see, e.g., Peck, 2019 WL 7285749 at *4 n.15,
Mull, 2011 WL 3882479 at *3, but it failed to apply its own precedent here.
Moreover, the APA Manual is an interpretation of the APA, not EAJA, which was enacted 34
years later. Equal Access to Justice Act, Pub. L. No. 96–481, Tit. II, 94 Stat 2321 (1980). While
the meaning of section 554 of the APA clearly is relevant to a proper interpretation of EAJA’s
waiver of sovereign immunity, “[t]he APA Manual,” as the Chief Judge noted, “does not discuss
sovereign immunity, or how a tribunal’s obligation to narrowly construe waivers of sovereign
immunity impacts the Attorney General’s analysis and assumptions regarding congressional
intent.” DO 44 n. 178. Thus, even if the manual could be read to support the conclusion that a
statutorily required hearing is presumptively on the record within the meaning of the APA—a
conclusion with which, as discussed further below, numerous courts have disagreed—such a

12

conclusion is not appropriate in the EAJA context, as it would “invert[] the presumption against
waiver[.]” Friends of the Earth, 966 F.2d at 696.8
Finally, even if the APA Manual’s “proposition that it might ordinarily be assumed that
Congress intends for quasi-judicial adjudicatory proceedings to be conducted ‘on the record’”
were generally applicable in the EAJA context, it would not be dispositive here. DO 43. As the
Chief Judge noted, “the APA Manual goes on to provide a critical caveat: ‘Of course, the
foregoing discussion …is inapplicable to any situation in which the legislative history or the
context of the pertinent statute indicates a contrary congressional intent.’” Id. (quoting APA
Manual at 42–43). Here, the context is the other “enforcement provisions within the INA,”
which “expressly invoke APA section 554,” in contrast to “the H-2B enforcement provision[],”
which “conspicuously [does] not” include such language. DO 44. This statutory context
overcomes any presumption of EAJA coverage that could be derived from the APA Manual,
“particularly,” as the Chief Judge remarked, “because of the sovereign immunity issues at
stake.” Id.
3. Even outside of EAJA, courts have rejected the argument that the
APA presumptively requires adjudicatory hearings to be on the
record.
Additionally, notwithstanding the APA Manual, courts have generally rejected the majority and
Respondent’s argument that a statutorily required adjudicative hearing is presumptively “on the
record.” See Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748 (6th Cir. 2004) (“Lower
courts have explicitly held that a formal adjudication featuring an oral evidentiary hearing is
required by the APA only when a statute explicitly calls for a hearing ‘on the record.’”); Chem.
Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, 1481 (D.C. Cir. 1989) (“declin[ing] to adhere” to a
presumption that an adjudicative hearing must be on the record); Bell Tel. Co. of Penn. v. FCC,
503 F.2d 1250, 1264 (3d Cir. 1974) (“The phrase ‘opportunity for hearing’ lacks the reference to
The APA manual also is not an interpretation of the H-2B provisions of the INA. The majority
appears to suggest that the INA’s passage in 1952 shortly after the APA’s enactment in 1946 is
evidence that the APA presumptively applies to INA proceedings absent an express statutory
exclusion. DO 21–22. But even assuming arguendo that such a presumption could apply to INA
proceedings as they existed in 1952, it cannot be reasonably applied to H-2B enforcement
provisions enacted over five decades later. To the contrary, Congress’ decision to expressly
invoke the APA in more recently-enacted INA provisions on adjudications, see supra § III.C.i,
strongly suggests that by 2005, it did not believe that any presumption would be sufficient to
guarantee the protections of section 554. And, as the Chief Judge noted, see DO 41, the
legislative history of the H-2B enforcement provisions themselves makes no reference to the
APA or to any specific procedures to be applied to such proceedings and thus does not support a
conclusion that Congress intended for section 554 to apply. See, e.g., 151 Cong. Rec. S6283–88
(Apr. 13, 2005) (statements of Sens. Mikulski, Warner, and Sarbanes on the Save Our Small and
Seasonal Businesses Act of 2005); 151 Cong. Rec. S6535–36 (Apr. 14, 2005) (statement of Sen.
Allen on the Save Our Small and Seasonal Businesses Act of 2005); 151 Cong. Rec. S9018–20
(May 10, 2005) (statements of Sen. Mikulski on the Save Our Small and Seasonal Businesses
Act of 2005).
8

13

a ‘record’ necessary to trigger the evidentiary requirements of the [APA].”); City of W. Chi. v.
NRC, 701 F.2d 632, 641–42 (7th Cir. 1983) (“. . . Congress must clearly indicate its intent to
trigger the formal, on-the-record hearing provisions of the APA . . . . Thus despite the fact that
the statute required the Commission to grant a hearing to any materially interested party, there is
no indication that Congress meant the hearing to be a formal one.”); cf. Dominion Energy
Brayton Point, LLC v. Johnson, 443 F.3d 12, 17 (1st Cir. 2006) (the words “public hearing” did
not demonstrate “clear and unambiguous congressional intent” that the hearing be on the record).
These decisions reflect that the word “hearing,” without more, at best leaves ambiguity as to
whether Congress intended for such a hearing to be on the record. As a result, courts have
deferred, under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842
(1984), to agency regulations providing for informal adjudications under such circumstances. See
Dominion Energy, 443 F.3d at 17–18; Chem. Waste Mgmt., 873 F.2d at 1481–82. These holdings
are significant because the standard for ambiguity for purposes of Chevron deference is virtually
identical to the standard for ambiguity for purposes of strict construction of waivers of sovereign
immunity. Compare AFL–CIO v. FEC, 333 F.3d 168, 174 (D.C. Cir. 2003) (“the fact that [a]
provision can support two plausible interpretations renders it ambiguous for purposes of Chevron
analysis”) with Cooper, 566 U.S. at 290–91 (“Ambiguity exists [for purposes of construing a
potential sovereign immunity waiver] if there is a plausible interpretation of the statute that
would not authorize money damages against the Government.”). 9 Thus, just as the mere
reference to a “hearing” does not constitute unambiguous congressional intent to require formal,
on-the-record proceedings for Chevron purposes, such a reference cannot, without more, waive
sovereign immunity under EAJA.10
It is therefore unsurprising that none of the cases cited by either the majority or Respondent have
concluded that the word “hearing,” by itself, can trigger EAJA coverage. Rather, all of the
9

I recognize that the Supreme Court recently granted certiorari on a case implicating the
continued validity of Chevron deference. See Loper Bright Enters. v. Raimondo, Case No. 22451. The cases cited herein are relevant not for their application of Chevron deference, but rather
for their conclusions that statutes calling for adjudicative “hearing[s]” are ambiguous regarding
whether such a hearing must be on the record.
10

Two older non-EAJA decisions accepted the presumption advanced by Respondent. See
Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 877 (1st Cir. 1978) (“presum[ing] that,
unless a statute otherwise specifies, an adjudicatory hearing subject to judicial review must be on
the record”); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1263 (9th Cir. 1977) (citing the APA
Manual for the proposition that “if a statute provides for [an adjudicative] hearing,” significant
weight “should not typically be accorded to Congress’ failure to specify that determinations must
be made ‘on the record’”). However, more recently, the First Circuit clarified that “Seacoast
simply does not hold that Congress clearly intended the term ‘public hearing’ in [the applicable
statute] to mean ‘evidentiary hearing,’” characterizing the presumption applied in Seacoast as
“antithetic to a conclusion that Congress’s intent was clear and unambiguous.” Dominion
Energy, 443 F.3d at 17 (emphasis added). This compels a conclusion that in the First Circuit, a
presumption that a “hearing” must be on the record would be inappropriate for EAJA purposes—
a conclusion supported by the weight of the case law. I therefore do not find the Ninth Circuit’s
view in Marathon Oil, a non-EAJA case, persuasive.
14

appellate cases concluding that hearings were “on the record” for EAJA purposes examined
specific statutory language that either described on-the-record proceedings or incorporated such
descriptions by reference. See Five Points Rd., 542 F.3d at 1126; Aageson, 500 F.3d at 1043–44;
Dantran, 246 F.3d at 47; Lane, 120 F.3d at 109. If Respondent and the majority were correct that
the mere reference to a “hearing” were sufficient to waive sovereign immunity, these cases’
detailed textual analyses would have been entirely superfluous.
4. The nature of an H-2B enforcement proceeding does not make it
an adversary adjudication within the meaning of EAJA.
I likewise disagree with the majority that caselaw under EAJA supports a conclusion that
Congress intended for H-2B enforcement proceedings to be covered by EAJA because they are
“quasi-judicial.” To the contrary, as illustrated above, all of the relevant cases appropriately
examined not only the nature of the proceeding at issue but the language of the statute
authorizing the proceeding.
In Ardestani, the Supreme Court, concluding that INA deportation proceedings are not subject
to EAJA, rejected the argument that EAJA applies to all “trial-type proceedings in which the
Government is represented.” 502 U.S. at 136. The three appellate cases concerning the NAD
proceedings gave no indication that “inherently adjudicatory, quasi-judicial” proceedings are
presumptively covered by EAJA; rather, they supported their conclusion that EAJA applies to
NAD proceedings by carefully examining the detailed provisions in the NAD statute. See Five
Points Rd., 542 F.3d at 1126; Aageson, 500 F.3d at 1043–44; Lane, 120 F.3d at 109. While the
First Circuit in Dantran did characterize an SCA debarment proceeding as “‘exactly the kind of
quasi-judicial proceeding for which the adjudicatory procedures of the APA were intended[,]’” it
also analyzed the SCA text and concluded that it explicitly incorporated provisions requiring
compliance with all of section 554’s components.11 246 F.3d at 46 (quoting Seacoast, 572 F.2d
at 876), 47. Similarly, while the D.C. Circuit stated in Friends of the Earth that the SWDA
proceeding at issue in that case involved “legislative facts” for which section 554 proceedings
were not intended, it also closely analyzed the statutory language authorizing the proceeding. See
966 F.2d at 693–94. And in St. Louis Fuel, the D.C. Circuit likewise focused on the text of the
relevant enabling statute, the DOE Organization Act, in determining that Congress did not intend
to require that the proceeding at issue be conducted on the record, and rejected the argument that
EAJA “should be construed broadly to reach all agency proceedings like or resembling those
‘under section 554.’” 890 F.2d at 448–50. 12 None of these cases found EAJA applicable solely
11

To the extent Respondent or the majority contend that Dantran supports application of EAJA
based solely on a proceeding’s “quasi-judicial” nature, Dantran relied on Seacoast and predated
Dominion Energy, which, as discussed above, concluded that a statutorily-required adjudicative
“hearing” does not reflect clear, unambiguous intent for such a proceeding to be on the record.
See supra n. 10.
12

St. Louis Fuel is particularly instructive, as the D.C. Circuit still concluded that the SDWA did
not contain the requisite evidence of Congressional intent to apply section 554 of the APA to
withdrawal proceedings under that statute even though the SDWA set forth significantly greater
and more specific procedural protections than the H-2B enforcement provision. See 890 F.2d at
15

by virtue of a proceeding ostensibly being a “quasi-judicial” adjudication, the result the majority
and Respondent urge here.13
Finally, the majority erred in concluding that the potential “immediate economic consequences”
and “disputed individual rights” involved in an H-2B proceeding and “due process concerns”
require application of APA section 554 and therefore EAJA. DO 15–18. The Supreme Court
rejected such reasoning in circumstances involving an even more significant infringement on
liberty or property interests—deportation from the United States. See Ardestani, 502 U.S. at 138
(concluding that even though “the broad purposes of the EAJA would be served by making the
statute applicable to deportation proceedings” and despite “the enormity of the interests at stake,”
it could not “extend the EAJA to administrative deportation proceedings when the plain language
of the statute, coupled with the strict construction of waivers of sovereign immunity, constrain us
to do otherwise”). And the Friends of the Earth court found the “substantial” “nature of the
interests at stake in” the withdrawal proceeding at issue to be “hardly . . . dispositive of the
question whether Congress intended to require a section 554 hearing.” 966 F.2d at 693.
As the Chief Judge correctly noted, “a litigant’s right to due process does not necessarily require
a formal adversarial adjudication of the type contemplated by APA section 554 in all instances.”
DO 46 (citing, e.g., Mathews v. Eldridge, 424 U.S. 319, 334 (1976); 2-Bar Ranch Ltd. P’ship v.
U.S. Forest Serv., 996 F.3d 984, 994–95 (9th Cir. 2021) and Smedberg Machine & Tool, Inc. v.
Donovan, 730 F.2d 1089, 1093 (7th Cir. 1984)). Indeed, “Congress permits the Secretary of
448 (noting that the statute at issue provided “the opportunity to participate through the
submission of briefs, oral or documentary evidence, and oral arguments; cross-examination . . . ;
and the issuance of an order, based on findings of fact, which constitutes a final agency action
subject to judicial review”). Here, the H-2B statute’s only reference to procedure consists of the
short phrase “notice and an opportunity for a hearing.” While the Department’s H-2B regulations
require proceedings that can be described as quasi-judicial, as the majority acknowledged, DO
11 n.44, only Congress, not an agency, can waive sovereign immunity, and these seven words do
not do so.
13

The majority also found support for its conclusion that section 554’s requirements are
presumed to apply to quasi-judicial proceedings in the Supreme Court’s decision in United States
v. Allegheny-Ludlum Steel Corp., which, analyzing a rulemaking hearing, stated that “‘[b]ecause
the proceedings under review were an exercise of legislative rulemaking power rather than
adjudicatory hearings . . . and because the [statute] does not require a determination ‘on the
record,’ the provisions of [the APA] were inapplicable.’” DO 15 (quoting 406 U.S. 742, 757
(1972)). According to the majority, the Court thus “suggested that if the matter had been an
adjudication it would have viewed the absence of ‘on the record’ language differently when
deciding whether formal APA procedures . . . were required.” Id. I agree with the Chief Judge
that this is a misreading of the decision, which “did not indicate that the distinction [between
rulemaking and adjudication] was essential to its decision, did not definitively hold that it would
have reached a different result if the proceedings at issue had been adjudicatory in nature, and
did not state that adjudicatory proceedings are presumed to be ‘on the record’ and subject to the
APA even absent a clear expression of congressional intent[.]” DO 42 n.171. Additionally, even
if Allegheny-Ludlum could support the proposition the majority suggested, it would still be
distinguishable because it did not involve a potential waiver of sovereign immunity.
16

Labor to impose monetary penalties, debar violators, and impose other administrative remedies”
under the Davis-Bacon Act “without even conducting a hearing[.].” Id. at 45 (citing Cody-Ziegler,
2003 WL 23114278, at *11; Roderick Constr. Co., WAB Case No. 88-39, 1990 WL 484319, at
*5 (WAB Dec. 20, 1990)). Thus, the nature of H-2B enforcement proceedings does not mandate
a conclusion that Congress intended that the proceedings be on the record or for EAJA to apply.
In sum, the majority’s failure to focus on the text of the H-2B enforcement provision, and its
reliance on presumptions rooted in legislative history, were in error. Since the H-2B enforcement
provision contains no evidence of Congressional intent to require that H-2B enforcement
proceedings be conducted on the record—and certainly no clear and unequivocal intent to this
effect—the majority erred in concluding that H-2B enforcement proceedings must be conducted
on the record and are thus subject to EAJA’s waiver of sovereign immunity.
D. I adopt the ARB’s Conclusion that the Administrator’s position was
substantially justified.
Although the conclusion above renders it unnecessary to reach the question of whether the
Administrator’s position was substantially justified, to the extent that a reviewing court were to
conclude that EAJA applies to H-2B proceedings, I adopt the ARB’s unanimous conclusion that
the Administrator’s position in this matter was substantially justified, and that the ALJ erred in
reaching the opposite conclusion and awarding attorney’s fees and costs to Respondent. See DO
23–36.14 This conclusion is well-supported and based on a thorough analysis of the record.
As the ARB noted, the Supreme Court has defined substantially justified as “‘justified in
substance or the main—that is, justified to a degree that could satisfy a reasonable person,” id. at
26–27 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)), and thus “‘the government
must show that its position had a reasonable basis in both law and fact,’” id. at 27 (quoting FEC
v. Pol. Contributions Data, Inc., 995 F.2d 383, 386 (2d Cir. 1993)). Based on a de novo review
of the “administrative record, as a whole,” 5 U.S.C. § 504(a)(1), the ARB correctly concluded
that the Administrator’s position—that requiring an employer to reimburse H-2B employees for
outbound transportation expenses constitutes “imposing owed ‘wages’ and not ‘penalties,’ such
that no limitations period would bar the action”—was reasonable, and thus substantially justified,
for multiple reasons. DO 34–35. First, this question was an issue of first impression before the
Board. Id. at 34 (citing Johnson v. McDonald, 28 Vet. App. 136, 146-50 (U.S. Ct. of Vet. Claims
2016), aff’d sub nom. Butts v. Wilkie, 721 F. App’x 988 (Fed. Cir. 2018)). Second, the
Administrator had taken the same position in other matters before Department ALJs with some
success. Id. at 34–35. Finally, the Administrator had “relied on longstanding caselaw” holding
that “there is no binding limitations period for administrative actions unless a federal statute
14

My adoption of the ARB’s conclusion in this issue includes my agreement with the Board’s
determinations that the Administrator did not waive any argument regarding the substantial
justification issue by initially failing to respond to Respondent’s EAJA petition before the ALJ,
and that even to the extent that any waiver or forfeiture occurred, it was appropriate and
consistent with Board precedent for the Board to consider this issue on appeal given that it
presented a novel issue of law relevant to other cases currently pending before the Department
and with no need for additional factfinding. DO 24–26.
17

creates one.” Id. at 35 (citing BP Am. Production Co. v. Burton, 549 U.S. 84, 95–96 (2006);
Badaracco v. Comm’r, 464 U.S. 386, 391 (1984)).
As the ARB unanimously concluded, in finding otherwise, the ALJ committed two errors. First,
“the ALJ hyper-focused on the conduct of the Agency’s counsel with respect to specific
procedural matters and in so doing failed to properly analyze the Agency’s position[.]” Id. at 30.
As the ARB noted, the agency’s “position” for purposes of the substantial-justification inquiry
was not “the procedural cooperativeness of Agency’s counsel” but rather the Administrator’s
citation of Respondent under the H-2B program for owing $16,560 in outbound transportation
expenses from more than five years in the past. Id. at 31–32. Second, “the ALJ failed to
‘reexamine the legal and factual [basis of the Administrator’s position] from a different
perspective’ but instead merely restated her merits analysis[.]” Id. at 33 (quoting United States
v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000)). As the Board explained,
“[w]hile the ALJ’s ultimate conclusion that the Administrator’s assessments were penalties and
thus barred by [a] five-year limitations period prevailed before the ARB, that legal conclusion is
not determinative of the issue of whether the position was substantially justified[.]” Id. I agree
with the Board that “the importance and novelty of the legal issue presented and the lack of
contrary binding precedent sufficiently establish that the Administrator’s position on outbound
transportation costs was substantially justified” even though the position did not prevail. Id. at
36. While not restating it here, I adopt the Board’s analysis on this issue, id. at 23–36, as my
determination in this matter.
IV.

Conclusion

For the foregoing reason, the decision of the Board is REVERSED IN PART AND AFFIRMED
IN PART.
ORDER
1. The ARB’s conclusion that EAJA applies to H-2B enforcement proceedings is
REVERSED.
2. The ARB’s conclusion that the Administrator’s position in this matter was
substantially justified is AFFIRMED.
3. Respondent’s application for fees and costs under fees is DENIED.
Signed in Washington, DC this 9th day of August 2023,

JULIE A. SU
Acting Secretary of Labor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A69ded2f092287e27. Public record. Not legal advice.