# U.S. Department of Labor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A8e38b47b82a82676 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text U.S. Department of Labor Administrative Review Board 200 Constitution Ave. NW Washington, DC 20210-0001 IN THE MATTER OF: ADMINISTRATOR, WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, ARB CASE NO. 2024-0043 ALJ CASE NO. 2020-TNE-00056 ALJ PATRICK M. ROSENOW PROSECUTING PARTY, DATE: April 9, 2026 v. MORTON CONCESSIONS, INC., RESPONDENT. Appearances: For the Administrator, Wage and Hour Division: Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Sarah Kay Marcus, Esq.; Sara A. Conrath, Esq.; and Joseph E. Abboud, Esq.; U.S. Department of Labor, Office of the Solicitor; Washington, District of Columbia For the Respondent: R. Wayne Pierce, Esq.; The Pierce Law Firm, LLC; Annapolis, Maryland Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL and KIKO, Administrative Appeals Judges; BURRELL, concurring DECISION AND ORDER This case arises under the Equal Access to Justice Act (EAJA or the Act), and its implementing regulations.1 The case before us today presents the narrow question of whether EAJA allows an eligible employer to recover attorney’s fees and costs under that Act when prevailing against the government in an enforcement action brought under the H-2B provisions of the Immigration and Nationality Act 1 5 U.S.C. § 504; 29 C.F.R. Part 16 (2025). 2 (H-2B and INA, respectively), as amended, and its implementing regulations.2 The prior Acting Secretary of Labor, Julie Su (Acting Secretary), previously determined in Administrator, Wage and Hour Division, U.S. Department of Labor v. Graham & Rollins, Inc. (Graham & Rollins) that EAJA does not apply to such proceedings. In reaching this result, the Acting Secretary reversed a contrary decision by the ARB, which had upheld a decision by the Administrative Law Judge (ALJ) below on the precise same issue.3 In essence, the disagreements of interpretation in these opinions, as much discussed below, turn on whether the fact that the H-2B statute does not expressly say “on the record” forecloses application of EAJA. Relying on the Acting Secretary’s Graham & Rollins decision, the ALJ in this case denied Respondent Morton Concessions, Inc.’s, request for attorney’s fees under EAJA. Because we are bound by the decision in Graham & Rollins, we affirm the ALJ. However, we take this opportunity to highlight our concerns with that decision and encourage the current Secretary of Labor to revisit the issue. We of course do not make a recommendation to revisit or overturn a prior Secretary’s decision lightly and therefore provide detailed supporting analysis. We divide this decision into several sections. In our Background section, we begin with a short discussion of EAJA and the Administrative Procedure Act (APA),4 providing an overview of the legal standards and definitions that will guide our discussion. This includes articulating what must be shown to establish that EAJA applies to these H-2B proceedings—namely, that 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b), 1184(c)(14). The statute’s implementing regulations are found at 20 C.F.R. Part 655, subpart A (2025), with additional enforcement regulations at 29 C.F.R. Part 503 (2025). The original INA was enacted in 1952 and has been amended numerous times. Congress enacted the H-2B provision at issue in Section 404 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Div. B, The Real ID Act of 2005, § 404, Pub. L. No. 109-13, 119 Stat 231 (codified at 8 U.S.C. § 1184(c)(14)). 2 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc. (Graham & Rollins (Acting Secretary)), ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (Sec’y Aug. 9, 2023) (Final Agency Decision and Order), rev’g Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc. (Graham & Rollins (ARB)), ARB No. 20210047, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022) (Decision and Order Affirming in Part and Reversing in Part). 3 4 5 U.S.C. §§ 551-559. 3 Congress intended for these proceedings to be conducted “on the record” under the procedures of the APA. Second, we provide background regarding the purposes of EAJA and the societal forces that led to its enactment—a discussion that is absent from the Acting Secretary’s decision in Graham & Rollins. We highlight legislative history showing that EAJA arose out of a concern over the growing power of federal agencies and the inability of small businesses to protect themselves against baseless, heavy-handed agency enforcement actions. EAJA, passed in 1980 and reauthorized in 1985 on a largely bipartisan basis, sought to level this sharply unfair playing field. Third, we provide a brief description of the H-2B program along with an overview of the Board’s and the Acting Secretary’s decision in Graham & Rollins. In that case, after the ALJ and ARB dismissed the enforcement action of the Administrator of the Wage and Hour Division (Administrator) under the applicable statute of limitations, the employer sought attorney’s fees against the Department under EAJA, arguing that the Administrator’s position was not substantially justified. The Administrator opposed the action, arguing that EAJA did not apply to the proceedings. A two-Member majority of the Board (Majority) conducted a detailed and thorough review of the H-2B enforcement provisions, their legislative history, the APA and its legislative history, caselaw from the Supreme Court and courts of appeals, and other factors. The Majority concluded that although the H2B enforcement statute does not explicitly state that the proceedings must be determined “on the record,” Congress clearly intended these quasi-judicial proceedings to be determined on the record and subject to the APA. However, the Acting Secretary, largely guided by a narrow view of waivers of sovereign immunity, overturned the ARB’s decision and concluded that the H-2B proceedings were not required to be determined “on the record,” and, thus, were not subject to EAJA. Finally, we give a brief background on the present case. As in Graham & Rollins, the ALJ dismissed an untimely enforcement action brought by the Administrator under the applicable statute of limitations. Morton Concessions moved for attorney’s fees under EAJA. Based on the Acting Secretary’s decision in Graham & Rollins, the ALJ here ruled that EAJA did not apply and did not reach a conclusion on whether the Administrator’s position was substantially justified. Following this Background, we offer our Discussion. In the first section of our Discussion, we recognize that Graham & Rollins compels us to affirm the ALJ in 4 this instance. As a delegee of the Secretary of Labor, we are bound to follow the Secretary’s decisions. The Acting Secretary’s conclusion in Graham & Rollins was clear: EAJA does not apply to H-2B enforcement proceedings. That is the precise issue presented in this case and dictates this case’s outcome. In the second section of our Discussion, though, we explain why we believe the Acting Secretary reached the wrong conclusion in Graham & Rollins. There are five primary reasons for our opinion. First, we believe the decision did not give due consideration to the purposes of EAJA. The Acting Secretary’s decision in Graham & Rollins was essentially silent as to the very important purposes of EAJA. Instead, the decision featured what we consider to be a hyper-technical statutory analysis without discussion of the important context of the purposes of the statute. As we emphasize below, examining the purpose of a statute is a staple of statutory interpretation and the decision’s failure to explore the purposes of EAJA was, in our view, error. Second, and in contrast, we believe the decision gave excessive weight to sovereign immunity. It is clear from the decision that principles of sovereign immunity essentially dictated the result in Graham & Rollins—it featured in essentially every point of analysis and effectively created what amounted to an insurmountable presumption that EAJA did not apply. We disagree with how stringently and forcefully the decision applied sovereign immunity. The decision did not appropriately recognize that EAJA offers a clear waiver of sovereign immunity and the well-settled law that states that, once Congress evinces its intent to waive sovereign immunity, tribunals should be careful not to narrow the waiver that Congress intended. This principle is especially important and true in the context of EAJA, which already provides guardrails protecting the public fisc. Restrictively applying principles of sovereign immunity is superfluous and contrary to congressional intent. Third, we explain why we believe that Congress intended H-2B enforcement proceedings to be decided on the record. We reiterate the ARB Majority’s view from Graham & Rollins that courts of appeals have consistently stated that talismanic “on the record” language is not necessary for Congress to have intended for the APA to apply to these proceedings; rather, what counts is whether we or the Secretary can otherwise conclude that Congress intended for the agency to adhere to the requirements of the APA and thus that a proceeding be “on the record.” We then explore nearly 80 years of legal precedent, dating back to the publication of the 5 United States Department of Justice’s Attorney General’s Manual on the Administrative Procedure Act (APA Manual) in 1947,5 explaining that courts generally presume, absent evidence to the contrary, that Congress intends for the APA to apply to traditional, quasi-judicial adjudications like these H-2B enforcement proceedings. We identify numerous courts of appeals cases confirming this principle—including some that the Acting Secretary cited in Graham & Rollins. Also highlighted are the hallmarks and characteristics of the proceedings in those cases that led the courts to conclude that Congress intended the APA to apply, that match the proceedings here under the H-2B statute. Likewise explained is why the cases the Acting Secretary cited to the contrary are distinguishable or otherwise do not undermine this well-established presumption. Fourth, we believe the Acting Secretary gave undue weight to language contained in other provisions of the INA. In concluding that Congress must not have intended to apply the APA to H-2B enforcement proceedings, the decision emphasized that other provisions of the INA refer specifically to the APA or explicitly state that the proceedings must be determined “on the record,” while the H-2B statute does not. The comparison of the H-2B enforcement statute to other provisions in the INA presumes that Congress made the deliberate choice to use other language in the H-2B statute to eliminate an “on the record” requirement. Based solely on a canon of interpretation, we believe that argument begs too much in this situation. The provisions to which the Acting Secretary compared the H-2B enforcement statute were drafted at different times by different Congresses and deal with different issues in different contexts. It is not reasonable to conclude that Congress intended the differing language to mean the H-2B provisions were excluded from the APA. Finally, we close with some common sense. The Acting Secretary’s conclusion—that H-2B enforcement proceedings need not be determined “on the record” or be subject to the APA—leads to the negative result that these factintensive and hotly contested cases might be decided on evidence that was never introduced to the decisionmaker or, worse, that a court could never be sure existed. This plainly cannot be Congress’s intent. Instead, we think it is imminently reasonable to conclude, in line with nearly 80 years of precedent and legal presumptions, that Congress intended to apply the APA to these quasi-judicial adjudications and thus that H-2B enforcement proceedings be “on the record.” U.S. Dep’t of Justice, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT (1947). 5 6 BACKGROUND 1. EAJA and the Administrative Procedure Act EAJA allows prevailing parties that are not the United States to recover attorney’s fees and costs from the federal government in cases involving an “adversary adjudication,” in which the government’s position is not “substantially justified.”6 The question in this appeal is whether H-2B enforcement proceedings are “adversary adjudications” under EAJA.7 EAJA defines an “adversary adjudication” as “an adjudication under section 554 of [the APA] in which the position of the United States is represented by counsel or otherwise.”8 Section 554 and subsequent provisions, in turn, prescribe the APA’s formal adjudication procedures.9 A proceeding is considered “under” Section 554 of the APA if it is “subject to” or “governed by” that section.10 Section 554 applies “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . .”11 Thus, for an adjudication to be considered “under” APA Section 554, three conditions must be met. First, there must be an “adjudication.” Second, the The statute, in relevant part, provides: “An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U.S.C. § 504(a). 6 We need not and do not reach the issue of whether the Agency’s position was “substantially justified” or whether other “special circumstances” exist to make an award unjust. If the Secretary agrees with us that these proceedings are subject to EAJA, those are issues that must be addressed in the first instance by the ALJ. 7 5 U.S.C. § 504(b)(1)(C)(i); see also 29 C.F.R. § 16.102(b) (defining “adversary adjudication” as “an adjudication under 5 U.S.C. 554 or other proceeding required by statute to be determined on the record after an opportunity for an agency hearing . . . .”). The Agency was and is represented by counsel from the Office of the Solicitor of Labor in this case. 8 9 5 U.S.C. §§ 554, 556, 557. Aageson Grain & Cattle v. U.S. Dep’t of Agric., 500 F.3d 1038, 1042 (9th Cir. 2007) (quoting Ardestani v. Immigr. & Naturalization Serv., 502 U.S. 129, 135 (1991)). 10 11 5 U.S.C. § 554(a). 7 adjudication must be required by statute to be determined “on the record.” Third, the statute must provide an “opportunity for an agency hearing.” The H-2B statute at issue here provides, in relevant part, that if the Secretary of Labor “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 worker under [the H-2B program] or a willful misrepresentation of a material fact in such petition,” the Secretary may take appropriate remedial action.12 Thus, EAJA prongs one (adjudication)13 and three (opportunity for a hearing)14 are clearly satisfied. The only question is whether the adjudication is “determined on the record” (prong two). 2. Legislative History and Purpose of EAJA In setting the stage for our discussion, we provide some useful background regarding the purposes of EAJA, the overarching statute in play here, and the societal forces which led to its enactment.15 The basic parameters of EAJA, which has been described as “one of the broadest reaching, yet most obscure federal laws in existence,”16 can be summarized 8 U.S.C. § 1184(c)(14). The statute gives power over enforcement proceedings to the Secretary of Homeland Security who, in 2009, delegated the Department of Labor its investigative and enforcement authority. Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. 78020, 78046 (Dec. 19, 2008) (effective Jan. 18, 2009). 12 The APA defines an “adjudication” as an “agency process for the formulation of an order.” 5 U.S.C. § 551(7). An “order” under the APA is “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” Id. § 551(6). H-2B enforcement proceedings involve an “adjudication.” Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 8. 13 14 See 8 U.S.C. § 1184(c)(14)(A) (providing for “an opportunity for a hearing”). Indeed, we think exploring the legislative history and purpose of EAJA is particularly important in this case, given the lack of any such meaningful discussion in the Acting Secretary’s prior decision in Graham & Rollins, as discussed in more detail below, infra Discussion Section 2.A. 15 For an in-depth review of the development and passage of the Act, see Lowell E. Baier, Reforming the Equal Access to Justice Act, 38 J. LEGIS. 1, 2 (2012) (“The Equal Access to Justice Act (EAJA) is one of the broadest reaching, yet most obscure federal laws in existence. Its basic function is simple: in any case, be it in court or in an administrative 16 8 quickly. The Act provides that certain covered small entities may recover their attorney’s fees and costs when prevailing against the government in an enforcement action unless the government can show that its case was “substantially justified” or “special circumstances” would make an award unjust.17 However, this basic summary, while accurate, belies the intensity of the debate which led to enactment of the Act in 1980, its reenactment in 1985, and the extensive litigation underpinning many of the words used in the Act. Current debates over the size of government and whether agencies have become too powerful as compared to average citizens are hardly a recent phenomenon. The APA was enacted in part because of the rise of the administrative state under the New Deal and to set certain structures and procedures to govern the seemingly ever-expanding number of agencies. However, the APA did not waive sovereign immunity and therefore the regulated community remained subject to the so-called “American rule” under which an entity, regardless of its size and no matter how “outgunned” it might have been in comparison to agency resources, would have to bear its own costs in litigation even where successfully challenging an agency enforcement action. In the late 1970s, there arose growing concern about the power of federal agencies and the inability of small businesses to protect themselves against baseless agency enforcement actions—simply because they could not afford the costs, principally attorney’s fees, to defend themselves.18 As Justice Jackson had opined earlier: The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions agency proceeding, where the federal government's position is not substantially justified, a prevailing party is entitled to receive attorneys’ fees, provided that there is no other applicable fee-shifting statute. It is a safety net, designed to make sure that a party cannot be harassed by unjustifiable government activity solely because of the prohibitive expense of attorney’s fees, and it was originally passed to protect the small business community from governmental overreach, just as earlier fee-shifting statutes were designed to promote specific causes such as civil rights legislation.”). 17 5 U.S.C. § 504(a). 18 See generally Baier, supra note 16, at 4-20. 9 apart. They also have begun to have important consequences on personal rights. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our threedimensional thinking.[19] Senator Pete Domenici (R-NM), in describing the need for a precursor to EAJA in December 15, 1977 Floor debates, noted: The purpose of that amendment was to compensate the average American and the small businessman for legal costs in litigation to protect his rights. . . . Individuals and small businessmen would no longer be forced to knuckle under to arbitrary or capricious interpretations and regulations, because they could not afford to take the matter to court, or to challenge the administrative action.[20] The Senator also cited a Wall Street Journal article, stating: The need for this legislation highlights a basic dilemma which the United States faces along with the other industrial democracies. Can we have a powerful national Government to enforce the laws which protect public health and safety and preserve competition in the marketplace, while avoiding a Government which is so powerful, intrusive, and arbitrary that it poses a menace to individual and economic freedom.[21] Fed. Trade Comm’n v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting) (citation omitted). 19 20 123 CONG. REC. 39116 (Dec. 15, 1977) (emphasis added). 21 124 CONG. REC. 6999 (Mar. 15, 1978) (emphasis added). 10 Senator Gaylord Nelson (D-WI) similarly noted: As Chairman of the Small Business Committee, I have long been aware of the deep frustrations and resentment that small business proprietors feel toward the Federal bureaucracy and its regulatory apparatus. . . . The horror stories coming out of our regulatory efforts are becoming all too common. In case after case, a Federal bureaucratic blitzkrieg has rolled over innocent victims, causing unjustified damage to large numbers of business enterprises and individuals. . . . A small businessman facing what he believes to be an unjust agency order will frequently find that, given the protracted nature of agency proceedings and the skyrocketing costs of legal counsel, it would cost him more money even to win against the Government than to accept the penalty. Inevitably in this situation, the businessman is forced to pay the penalty, rather than fight it, no matter how unjust the agency’s action might have been. Such a result mocks our principles of equal justice and due process. . . . Without legislation like this, the possibility that the bureaucracy may enforce its will in more and more questionable cases cannot be discounted. . . . This idea of justice is also mocked by the current situation when small businessmen facing a fine or other penalty decide that compliance is a preferable course to litigation, regardless of the merits of the case, because of the costs involved.[22] Senator Domenici again noted on January 31, 1979: Individuals and small businesses are in far too many cases forced to knuckle under to regulations even though they have a direct and substantial impact because they cannot afford the adjudication process. . . . The purpose of the bill is to redress the balance between the Government acting in its discretionary capacity and the individual. . . . 22 123 CONG. REC. 39117-18 (emphasis added). 11 It is to insure against capricious and arbitrary Federal regulation.[23] Senator Dennis DeConcini (D-AZ) stated: Mr. President, in closing I would like to emphasize again that the imbalance between the power of the bureaucracy and the power of the American citizen must be redressed. Congressional oversight alone will never be a sufficient safeguard against regulatory abuse. Individual citizens and small businesses, the persons who bear the brunt of administrative regulation, must be able to check arbitrary agency actions by contesting them. Through the device of fee shifting, this legislation will improve our citizens’ access to courts and administrative proceedings. It will encourage them to vindicate their rights and not to acquiesce in a ruling or sanction which they believe arbitrary, misguided or unfair.[24] Similar feelings were expressed during the reauthorization of the Act in 1985, with Senator Domenici noting: We have entered the age of Federal regulation and there are very few elements of life, commercial or otherwise, where the Federal Government does not play some role. Often, this government action is arbitrary and capricious. . . . They say that “You can’t fight city hall,” and the prevailing attitude of many today is that even if you do fight the Federal Government and win in court you still lose because of the cost. We must eliminate the possibility of such Pyrrhic victories. The average American must be made to feel that he or she can question the exercise of the Government’s discretionary power as 23 125 CONG. REC. 1437 (Jan. 31, 1979) (emphasis added). 24 Id. at 1439 (emphasis added). 12 to its reasonableness without incurring large costs if he or she prevails.[25] A key House Report noted: In many cases, particularly in litigation with the government, the [A]merican rule is in fact having the opposite effect. For many citizens, the costs of securing vindication of their rights and the inability to recover attorney fees preclude resort to the adjudicatory process. When the cost of contesting a government order, for example, exceeds the amount at stake, a party has no realistic choice and no effective remedy. In these cases, it is more practical to endure an injustice than to contest it. The deterrent effect created by this inability to recover fees against the government is particularly disturbing in light of the rapid growth in government regulations in recent years. While the influence of the bureaucracy over all aspects of life has increased, the ability of most citizens to contest any unreasonable exercise of authority has decreased. Thus, at the present time, the government with its greater resources and expertise can in effect coerce compliance with its position. Where compliance is coerced, precedent may be established on the basis of an uncontested order rather than the thoughtful presentation and consideration of opposing views. In fact, there is evidence that small businesses are the target of agency action precisely because they do not have the resources to fully litigate the issue. This kind of truncated justice undermines the integrity of the decisionmaking process.[26] 25 131 CONG. REC. 20353-54 (July 24, 1985) (emphasis added). H.R. REP. NO. 96-1418, at 9-10 (1980) (House Committee on the Judiciary) (emphasis added). 26 13 A subsequent 2015 Report by the House Committee on the Judiciary, looking back on the history and purpose of EAJA, noted: Civil litigation can become a war of attrition as parties strategically try to deplete one another’s resources to force a settlement. Fundamentally, EAJA recognizes the enormous “disparity of resources between individuals, small businesses and other organizations with limited resources and the Federal Government.” This imbalance could discourage a citizen from hiring counsel to challenge abusive government policy or could induce a citizen to settle a capricious civil or administrative enforcement action on unfavorable terms. EAJA “is meant to discourage the Federal Government from using its superior litigating resources unreasonably—it is in this respect an ‘anti-bully’ law.” Consequently, EAJA is “probably is the most important” and also “among the most litigated” of the Federal fee-shifting statutes.[27] In sum, concerned with apparent abusive government overreach against small entities ill-equipped to defend their rights, simply because of a lack of resources, Congress then, on a bipartisan basis, enacted EAJA in 1980 (Pub. L. No. 96-481), thereby waiving sovereign immunity and requiring that an agency pay the costs and other fees of a small entity when that entity prevails against the government in an enforcement action, unless the government can show that its position was substantially justified or that “special circumstances” would make an award unjust. Because the Act contained a “sunset” expiration date, Congress reauthorized the law in 1985 (Pub. L. No. 99-80), with some modest expansions, again on a broad bipartisan basis.28 H.R. REP. NO. 114-351, at 2-3 (2015) (citations omitted) (emphasis added). The bill was eventually incorporated into the Bipartisan Sportsman Act of 2015, S.405, 114th Cong. § 108 (2015), reinstating required reports on EAJA’s utilization by the U.S. Administrative Conference. 27 Many cases discuss EAJA’s purposes and goals (but overlook the intensity of the debate), but for two particularly good overviews, see Ibrahim v. U.S. Department of Homeland Security, 912 F.3d 1147, 1166-67 (9th Cir. 2019), rev’g en banc 835 F.3d 1048 (9th Cir. 2016), and Metropolitan Van & Storage, Inc. v. United States, 101 Fed. Cl. 173, 182-84 (Fed. Cl. 2011). The lengthy court decision in Ibrahim paints a particularly 28 14 3. The H-2B Program and Graham & Rollins The H-2B visa program allows employers to recruit and hire alien nonimmigrants to perform temporary, nonagricultural labor or services in the United States.29 Employers who wish to employ H-2B workers must submit an Application for Temporary Employment Certification and, if approved, an I-129 Petition that will allow the workers to enter and work in the United States.30 The Administrator has been delegated enforcement responsibility for ensuring that employers comply with the statutory and regulatory labor certification requirements.31 This includes the power to impose administrative remedies, including civil money penalties and debarment, for program violations.32 In 2011 and 2012, Graham and Rollins, Inc., applied to the Department of Labor to recruit and hire employees under the H-2B program.33 In 2018—more than a half of a decade later—the Administrator issued a Determination Letter finding that Graham and Rollins failed to pay outbound transportation costs to H-2B workers whose employment was terminated prior the end of their contract.34 The Administrator assessed $16,560 against Graham and Rollins for the alleged violations.35 Graham and Rollins challenged the assessment, asserting that the Administrator’s enforcement effort was untimely under the applicable statute of limitations.36 The Administrator countered that no statute of limitations applied to Kafkaesque journey through one individual’s efforts to recover costs under EAJA “[a]fter the government engaged in years of scorched earth litigation.” Ibrahim, 912 F.3d at 1171. 29 8 U.S.C. § 1101(a)(15)(H)(ii)(b). 30 Id. § 1184(c)(1); 20 C.F.R. §§ 655.5, .15. 31 8 U.S.C. §§ 1184(c)(14)(A)-(B), 1103(a)(6); 20 C.F.R. § 655.2(b). 32 8 U.S.C. § 1184(c)(14)(A)(i), (B); 29 C.F.R. §§ 503.20, .23, .24. Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc. (Graham & Rollins (ALJ)), ALJ No. 2018-TNE-00022, slip op. at 2-3 (ALJ June 26, 2018) (Decision and Order Granting Employer’s Motion to Dismiss and Order Cancelling Hearing and Order Dismissing Case). 33 34 Id. at 3-4. 35 Id. at 2. 36 Id. 15 its enforcement action.37 The ALJ and the ARB agreed with Graham and Rollins, applied the five-year statute of limitations of 28 U.S.C. § 2462, and dismissed the case.38 Graham and Rollins subsequently moved for attorney’s fees under EAJA.39 The Administrator opposed the request for fees, arguing that EAJA did not apply to the H-2B proceedings and that, even if it did, the Department’s position was substantially justified. The ALJ again agreed with Graham and Rollins, concluded that EAJA applied to the H-2B proceedings, and determined that the Administrator had not carried her burden to show that the Agency’s enforcement position was substantially justified.40 The Administrator appealed the ALJ’s decision to the ARB. As set forth above, for EAJA to apply, three conditions must be satisfied: (1) there must be an adjudication, (2) the adjudication must be required by statute to be determined “on the record,” and (3) the statute must provide an “opportunity for an agency hearing.” The H-2B statutory enforcement provision applicable both in this case and in Graham & Rollins provides that if the Secretary “finds, after notice and an opportunity for a hearing, a substantial failure to meet” a program obligation, the Secretary may bring an enforcement action for specified remedies.41 There was no dispute in Graham & Rollins that the H-2B enforcement proceedings constituted an adjudication (prong one) and provided an opportunity for an agency hearing (prong three). As in the present case, the only question was whether the adjudication was required to be determined “on the record.”42 In a divided decision, a two-Member Majority concluded that the H-2B proceedings were required to be determined “on the record,” and, therefore, were subject to EAJA.43 The Majority conducted an extensive and well-reasoned analysis. 37 Id. Id. at 11; Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc., ARB No. 2019-0009, ALJ No. 2018-TNE-00022, slip op. at 2 (ARB Nov. 16, 2020) (Decision and Order). See also infra note 74 for further explanation of the statute of limitations issues in play here. 38 39 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 3. 40 Id. 41 8 U.S.C. § 1184(c)(14)(A) (emphasis added). 42 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 8. 43 Id. at 8-15. 16 First, the Majority emphasized that it has been the consistent position of courts of appeals that no “magic words” are necessary to conclude that an adjudication is required to be determined on the record.44 Rather than focusing on the specific language used in the statute, the inquiry instead focuses more broadly on whether Congress intended for the agency to adhere to the requirements of the APA.45 Thus, the absence of the words “on the record” from the statute was not determinative. Turning to other indicia of congressional intent, the Majority explained that Congress enacted the H-2B enforcement provisions in the backdrop of the APA’s governing framework on agency adjudication.46 The Majority then provided a thorough review of the history and purposes of the APA, with special reference to the authoritative APA Manual.47 The Majority explained that under the APA, quasi-judicial adjudications like these H-2B enforcement proceedings are presumed to follow the formal procedures set out in APA Sections 554, 556, and 557 and are presumed to be conducted “on the record.”48 With this fundamental backdrop, the Majority concluded that there was no indication that Congress intended to go against this weighty and longstanding presumption with the H-2B proceedings at issue in the case.49 The Majority also explained that H-2B proceedings are consistent with the type of quasi-judicial proceedings to which this fundamental presumption applies.50 The Majority observed that these proceedings are steeped in traditional adjudicatory fact-finding and authorize the imposition of administrative remedies against the violator, including civil money penalties and debarment.51 The Majority cited courts of appeals cases that determined that these types of rights and remedies were precisely the type of quasi-judicial proceeding for which the adjudicatory procedures of the APA were intended.52 44 Id. at 9-10. 45 Id. at 10 (citations omitted). 46 Id. at 11. 47 Id. at 11-15. 48 Id. at 15. 49 Id. 50 Id. at 15-18. 51 Id. at 16, 18. 52 Id. at 17-18 (citations omitted). 17 One Member disagreed with the Majority (Concurrence).53 In concluding that the H-2B proceedings did not need to be conducted “on the record,” the Concurrence relied heavily on the principle of sovereign immunity, arguing that any waiver thereof must be “strictly construed in favor of the United States.”54 This premise influenced the remainder of the Concurrence’s opinion, leading her to conclude that with the principle of sovereign immunity in mind, she could not decipher from the language, context, or history of the H-2B enforcement provisions that Congress clearly intended to require the proceedings to be determined on the record.55 In particular, the Concurrence noted the absence of “on the record” language in the statute (despite agreeing with the Majority that magic words were not necessary) 56 and compared the H-2B enforcement statute to other provisions of the INA that expressly invoked APA section 554.57 On January 9, 2026, the Acting Secretary determined to undertake further review of the Majority’s decision pursuant to sections 6(b)(2) and 6(c)(1) of Secretary’s Order 01-2020.58 On August 9, 2023, the Acting Secretary issued a Final Agency Decision and Order (FAD) reversing in part the Majority decision and concluding that EAJA does not apply to the H-2B enforcement proceedings because they are not required to be determined “on the record.”59 Like the Concurrence, the FAD led by leaning heavily into sovereign immunity, calling it a “high threshold to clear” and stating that “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 The Concurrence disagreed with the Majority that EAJA applied to the proceedings, but agreed with the Majority that, if it applied, the Administrator’s position was “substantially justified,” so an award of fees was not warranted. Id. at 36 n.149. 53 54 Id. at 37-38 (citations omitted). 55 Id. at 38. 56 Id. at 38-39. 57 Id. at 39-42. Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020). 58 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 6-17. The Acting Secretary, like the Concurrence, agreed that if EAJA applied, the Administrator’s position was substantially justified. Thus, the Acting Secretary affirmed the ARB in that regard. Id. at 17-18. 59 18 waiver.”60 The Acting Secretary agreed with the Concurrence’s conclusion that there was no clear indication that Congress intended to waive sovereign immunity and apply the APA (or by extension EAJA) to these H-2B proceedings.61 Specifically, the FAD stated that the text of the H-2B enforcement provision itself did not explicitly require the proceedings to be conducted on the record (despite, like the Concurrence, recognizing that no such magic words are necessary)62 and that there was no other “textual evidence of Congressional intent,” including no other statutory “procedural requirements” beyond the opportunity for a hearing.63 Like the Concurrence, the FAD also gave weight to the fact that other INA provisions expressly invoked APA Section 55464 and rejected the Majority’s analysis regarding the backdrop of the APA and the presumption that traditional quasijudicial hearings are presumed to be on the record.65 4. Morton Concessions and the Present Case In 2014 and 2015, Morton Concessions applied to the United States Department of Labor to recruit and hire employees under the H-2B program.66 The Administrator opened an investigation into Morton Concessions’ H-2B practices in November 2014.67 Reminiscent of the Administrator’s severely delayed approach in Graham & Rollins, more than five and a half years after opening the investigation, the Administrator finally issued a determination letter on July 17, 2020, finding that Morton Concessions failed to pay the required wage rate to six H-2B employees.68 The Administrator assessed $21,390.40 in back wages and $633.11 in 60 Id. at 4-5 (citations omitted). 61 Id. at 16-17. 62 Id. at 6-8. 63 Id. at 8-10. 64 Id. at 8-9 (citations omitted). 65 Id. at 10-15. 66 Ruling on Respondent’s Motion to Dismiss at 1-2. 67 Administrator’s Opposition to Respondent’s Motion to Dismiss at 2. 68 Ruling on Respondent’s Motion to Dismiss at 2. 19 civil money penalties for the alleged violations.69 Morton Concessions challenged the assessment and requested a hearing with an ALJ.70 On December 22, 2020, Morton Concessions filed a Motion to Dismiss, arguing that the Administrator’s enforcement action was untimely because the alleged violations occurred more than five years prior.71 Taking the same position it took in Graham & Rollins, the Administrator argued that no statute of limitations applied to its enforcement action.72 Alternatively, the Administrator argued that even if a five-year statute of limitations applied, some of the cited violations occurred within the five-year period.73 Like the ALJ in Graham & Rollins, the ALJ in this case determined that the five-year statute of limitations in 28 U.S.C. § 2462 applied to the Administrator’s assessments for back wages and civil money penalties.74 Thus, the ALJ granted 69 Id. 70 Id. 71 Id. 72 Id. 73 Id. at 2-3. Id. at 4-7. One issue that pervades both Graham & Rollins and this case is the question of what statute of limitations, if any, governs the Administrator in bringing an enforcement action under the H-2B statute. All parties agree that the statute does not contain any express limitation and thus the question revolves around 28 U.S.C. § 2462’s five-year statute of limitations, which is typically applied if a specific enabling statute does not contain its own statute of limitations. Section 2462 is not a model of clarity, and its scope has been much litigated. The Administrator has consistently argued that Section 2462 has limited reach in H-2B enforcement cases and certainly does not govern an action against an employer claiming “back pay” as a remedy—a phrase itself which has been litigated as to its meaning. See Administrator’s Response in Opposition to Morton Concessions’ Application for the Award of Fees and Expenses under EAJA at 20-24; see also Graham & Rollins (ALJ), ALJ No. 2018-TNE-00022, slip op. at 5; Graham & Rollins (ARB), ARB No. 2021-0047, slip op. 29-30, 32-36. This issue is not before us, but we bring it to the Secretary’s attention as one which may arise in future litigation and arguably is in need of close attention given the many well-established purposes of a statute of limitations to “avoid stale claims, lost evidence, or faded memories, and the importance to the welfare of society by promoting timely justice and stability in human affairs.” Carl S. Rauh & Olivia A. Rauh, The Five-Year Statute of Limitations for Government Enforcement Actions for Civil Penalties: Recently Settled and Still Unsettled Issues Regarding 28 U.S.C. Section 2462, BUSINESS LAW TODAY (May 27, 2021), https://www.businesslawtoday.org/ 2021/05/the-five-year-statute-of-limitations-for-government-enforcement-actions-for-civilpenalties-recently-settled-and-still-unsettled-issues-regarding-28-u-s-c-section-2462/; see also 3M Co. (Minn. Mining & Mfg.) v. Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994) 74 20 Morton Concessions’ Motion to Dismiss in part, concluding that all claims for violations that occurred more than five years prior to the issuance of the determination letter were untimely.75 After the ALJ’s ruling on the Motion to Dismiss, the Administrator filed a Motion for Summary Decision as to the remaining violations. According to the Administrator, Morton Concessions still owed $1,843.51, plus interest, in back wages to five H-2B employees and $633.11 in civil money penalties for the remining violations.76 Morton Concessions responded by agreeing to pay the back wages assessment and $569.80 in civil money penalties and asked to withdraw its request for a hearing.77 The ALJ granted Morton Concession’s request for withdrawal and dismissed the case on August 26, 2011.78 On October 27, 2021, Morton Concessions applied to the ALJ for an award of attorney’s fees and expenses under EAJA. The Administrator opposed the application. On January 18, 2022, the ALJ issued an Order Staying Proceedings. At the time, Graham & Rollins was pending with the Board and the ALJ stayed these proceedings pending the ARB’s decision.79 The ALJ briefly lifted the stay on January 19, 2023, after the ARB issued its decision, before staying the case again on March 7, 2023, after the Acting Secretary elected to review the ARB’s Graham & Rollins decision. After the Acting Secretary issued the FAD in Graham & Rollins, the ALJ again lifted the stay in this case and invited supplemental briefing from the parties. On April 1, 2024, the ALJ issued a Recommended Decision and Order (D. & O.), (“The concern that after the passage of time evidence has been lost, memories have faded, and witnesses have disappeared pertains equally to factfinding by a court and factfinding by an agency.”) (internal quotations and citations omitted). 75 Ruling on Respondent’s Motion to Dismiss at 8. Ruling on Respondent’s Motion to Withdraw Request for Hearing and Order Dismissing Case at 2. 76 77 Id. 78 Id. 79 Order Staying Proceedings at 1-2. 21 concluding that the Acting Secretary’s FAD in Graham & Rollins precluded the application of EAJA or the award of attorney’s fees in this case.80 Morton Concessions filed a Petition for Review with the Board on May 14, 2014. JURISDICTION AND STANDARD OF REVIEW The Secretary has delegated the authority to review this matter to the Board.81 The Board acts with “all the powers [the Secretary] would have in making the initial decision.”82 DISCUSSION As the delegee of the Secretary of Labor, we are bound by the Secretary’s decisions and precedent. Thus, the prior Acting Secretary’s decision in Graham & Rollins compels us to affirm the ALJ’s decision that EAJA does not apply to these H-2B enforcement proceedings. However, the Secretary has the power and authority to revisit past precedent. We strongly urge the Secretary to revisit the prior Acting Secretary’s decision in Graham & Rollins. As explained in detail below, we believe the decision improperly overemphasized sovereign immunity, failed to properly weigh and consider evidence of Congressional intent and longstanding presumptions about the applicability of the APA, and reached the wrong conclusion. 1. Graham & Rollins Compels Us to Affirm the ALJ The Secretary of Labor created the Board and delegated it authority to act for the Secretary in review of matters arising under specifically enumerated statutes, including EAJA.83 The Board’s decisions are subject to review and reversal by the 80 D. & O. at 3-4. 81 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13186; 29 C.F.R. § 16.306. 5 U.S.C. § 557(b); Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 3 (citations omitted). 82 Secretary’s Order No. 02-1996 (Authority and Responsibilities of the Administrative Review Board), 61 Fed. Reg. 19978 (May 3, 1996). 83 22 Secretary, who is ultimately responsible for issuing final agency decisions under each of the enumerated statutes.84 In the delegations of authority to the Board, the Secretary has made clear that the Board must “adhere to the rules of decision and precedent applicable under each of the [enumerated] laws.”85 Likewise, when the Secretary undertakes review of a Board decision and issues a final agency decision, as in Graham & Rollins, “[t]he Secretary’s decision shall constitute final action by the Department and shall serve as binding precedent on all Department employees and in all Department proceedings involving the same issue or issues.”86 Simply stated, we are bound by the Secretary’s decisions, even if we might disagree with them. In reversing in part the Majority’s decision in Graham & Rollins, the Acting Secretary provided a clear holding: H-2B enforcement proceedings are not required to be decided “on the record” and, therefore, are not subject to EAJA.87 This is the exact issue presented in the present case and we are bound by the decision. In an attempt to navigate around the FAD in Graham & Rollins, Morton Concessions argues that the Acting Secretary was bound to follow, but never properly analyzed or applied, controlling law of the Ninth Circuit Court of Appeals.88 According to Morton Concessions, Ninth Circuit case law, including specifically Marathon Oil Company v. Environmental Protection Agency,89 dictates a different result and the Acting Secretary erred by failing to follow this precedent.90 Even if we agreed with Morton Concessions, we would nevertheless still be bound by the Acting Secretary’s decision in Graham & Rollins. The holding that H-2B enforcement proceedings are not subject to EAJA was clear and was not 84 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13187-88. 85 Id. at 13187; Secretary’s Order No. 02-1996, 61 Fed. Reg. at 19979. 86 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13188. 87 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 17-18. 88 Amended Brief of Employer-Respondent (Resp. Br.) at 6-10. 89 564 F.2d 1253 (9th Cir. 1977). 90 Resp. Br. at 7; Reply Brief of Employer-Respondent at 1. 23 limited to the Circuit in which that case arose.91 Because this case involves “the same issue or issues,” we are bound by the decision.92 2. The Secretary Should Revisit Graham & Rollins Although we are bound by the FAD in Graham & Rollins, we have serious misgivings about that decision. Among other things, the decision did not review the purposes of EAJA, gave extreme weight to sovereign immunity, rejected decadeslong presumptions surrounding quasi-judicial proceedings, and passed over what we consider to be clear indicia in the nature of the H-2B enforcement proceedings that indicate they were intended to be determined on the record. The Secretary has the power and authority to revisit past precedent.93 We urge the Secretary to do so in this case. As stated above, we do not make this recommendation lightly. Therefore, we provide a detailed analysis discussing our views on the issue and the concerns we have with the Acting Secretary’s decision. A. The Decision Did Not Give Due Consideration to the Purposes of EAJA As an initial and fundamental matter, the Acting Secretary did not give due (or any) weight to the purposes of EAJA in reversing the Majority in Graham & Rollins. Above, we detailed the essential principles and purposes underlying EAJA. Briefly restated, EAJA grew out of a growing concern over the unequal positions of private litigants vis-à-vis an ever-expanding bureaucracy. Private litigants—even those with meritorious defenses—found themselves In its Petition for Review, Morton Concessions also argued that “[t]he Secretary correctly concluded that the Ninth Circuit will award EAJA fees in H-2B enforcement actions,” citing footnote 10 of the FAD. Petition at 2. We disagree with Morton Concessions’ interpretation of that footnote and the Acting Secretary’s holding. In that footnote, the Acting Secretary referred to Marathon Oil, but concluded that as a non-EAJA case and in light of her reading of other cases, it was not persuasive. Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 14 n.10. Finding Marathon Oil unpersuasive is a far cry from finding that the Secretary would have been forced to reach a different result had the case arisen in the Ninth Circuit. 91 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13188; see Petition at 1 (identifying the relevant issue as “[w]hether under Ninth Circuit case law, H-2B enforcement actions fall within the scope of the Equal Access to Justice Act”). 92 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13187 (stating that the Board is bound to follow rules of decision and precedent, “until and unless the Board or other authority explicitly reverses such rules of decision or precedent”). 93 24 outmanned and overmatched when facing heavy-handed government enforcement actions. The problems EAJA sought to address were magnified with the exponential growth of the administrative state. This imbalance of power led to many ills. Individuals and small businesses were rolled over by arbitrary or capricious exercises of agency power, small businesses were unjustly compelled to pay penalties rather than fight unfair government action in costly litigation, and small businesses were specifically targeted for agency action precisely because they did not have the resources to litigate. Thus, EAJA serves several important goals: it reduces the disparity between individuals, small businesses, and other organizations with limited resources vis-à-vis the federal government; it encourages and reduces the hurdles for private parties to challenge unreasonable and oppressive government behavior; and it deters unreasonable and heavy-handed behavior by agencies, federal officials, and regulators. The concerns and goals giving rise to EAJA in 1980 are, perhaps, more pressing and important today than ever before. The FAD in Graham & Rollins does not include any meaningful discussion of the important purposes behind EAJA. The decision featured a hyper-technical (and, in our view, misguided) statutory analysis, without addressing the context and issues presented in the underlying case and the purposes of the relevant statute. Any interpretation of the scope of EAJA must necessarily consider, as a backdrop, the important purposes of that Act. Indeed, “[e]xamination of purpose is a staple of statutory interpretation that makes up the daily faire of every appellate court in the country.”94 The failure to discuss or apparently even consider the purposes of EAJA necessitates further review by the Secretary in this case. B. The Decision Gave Excessive Weight to Sovereign Immunity While giving little or no weight to the purposes behind EAJA, the FAD at the same time gave excessive weight to the principle of sovereign immunity. It is clear that sovereign immunity heavily influenced—if not outright dictated—the Concurrence’s and the Acting Secretary’s decisions in Graham & Rollins. Both introduced their discussions by laying out the principles of sovereign McCreary Cnty. v. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 861 (2005) (citations omitted); accord Abramski v. United States, 573 U.S. 169, 179 (2014) (“In [interpreting the statute], we must (as usual) interpret the relevant words not in a vacuum, but with reference to the statutory context, structure, history, and purpose.”) (internal quotations and citations omitted). 94 25 immunity and signaled the overwhelming weight they gave the doctrine. For example, the Concurrence led her analysis by stating that when deciding whether EAJA applied to H-2B enforcement proceedings, “we must remain mindful that EAJA constitutes a partial waiver of sovereign immunity.”95 She then went on to conclude that when “[c]onsidering the fundamental principles” of sovereign immunity, there was not sufficient indicia that Congress intended to waive sovereign immunity and apply EAJA in the H-2B context.96 The Acting Secretary leaned even heavier into the application of sovereign immunity. The FAD began with a discussion of the “Governing Legal Framework” by emphasizing the “elementary” and “crystal clear” principles of sovereign immunity and noting the “high threshold” a litigant must overcome to demonstrate that Congress intended to waive it—“both as to whether Congress has waived immunity at all and as to the scope of any waiver.”97 With that preface, sovereign immunity then featured in nearly every section of the legal analysis, including in teeing up the general issues of the applicability of EAJA,98 in discussing the text of the H-2B enforcement provision,99 in deemphasizing the longstanding presumption regarding applicability of the APA in quasi-judicial proceedings,100 in discussing what the Acting Secretary perceived as an ambiguity in the H-2B statute,101 and even in distinguishing cases cited by the Majority.102 In fact, in the 18 page opinion, “sovereign immunity” was referenced 44 times. As we read the FAD, the decision gave sovereign immunity so much weight as to make it effectively determinative and nearly impossible to overcome. 95 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 37. 96 Id. at 38. 97 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 4-5. Id. at 5 (“Additionally, because EAJA constitutes a partial waiver of the United States’ sovereign immunity . . . it must be strictly construed in favor of the United States.”) (internal quotation and citation omitted). 98 Id. at 7 (“This principle [of plain text reading] applies with even greater force when determining whether a statute waives sovereign immunity . . .”). 99 Id. at 11-12 (stating that such presumption is “contrary to bedrock sovereign immunity principles,” that the APA Manual did not discuss sovereign immunity, and that the APA Manual could not waive sovereign immunity). 100 Id. at 14-15 (concluding that in light of such ambiguity, there could be no waiver of sovereign immunity). 101 102 Id. at 16 n.13. 26 While we do not disagree with many of the general statements of the law with respect to sovereign immunity and the importance that doctrine has in our legal system, we do disagree with the outsized and effectively decisive reliance the FAD placed on sovereign immunity in that case. While it is generally true that waivers of sovereign immunity must be clear, there is no doubt or ambiguity that Congress waived sovereign immunity through EAJA.103 As outlined above, to counteract growing overreach by the federal government and negate existing and nearly insurmountable disincentives and disparities that discouraged (or outright prevented) litigants, especially small businesses, from pursuing even the most meritorious and just defenses against heavy-handed and unjustified government action, Congress enacted EAJA. EAJA waived sovereign immunity, indicated Congress’s intent to place the goal of incentivizing private parties to vindicate and defend their rights ahead of preserving the federal treasury, and subjected the government to liability for attorney’s fees in cases in which it could not substantially justify its position.104 In invoking the general principle that statutory ambiguities are construed in favor of retaining immunity, the decision singularly focused on perceived ambiguities in the H-2B enforcement statute, without acknowledging the proper starting point that EAJA itself provides a clear and unambiguous waiver of sovereign immunity. Furthermore, while we generally agree with the notion that courts should be careful not to construe a waiver of sovereign immunity more broadly than Congress intended, it is equally true that once Congress has waived sovereign immunity—as it has clearly done with EAJA—courts “should be careful not to ‘assume the authority to narrow the waiver that Congress intended.’”105 As we read the FAD in See Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1125 n.3 (7th Cir. 2008); Aageson Grain & Cattle, 500 F.3d at 1045. 103 104 5 U.S.C. § 504(a). Ardestani, 502 U.S. at 137 (quoting United States v. Kubrick, 444 U.S. 111, 118 (1979)); accord Internal Revenue Serv. v. Murphy, 892 F.3d 29, 40 (1st Cir. 2018) (“We thus must be careful not to be more stinting in the interpretation of the provision than its language requires, for just as the courts should not construe a waiver of sovereign immunity more broadly than Congress intended, neither, however, should we assume the authority to narrow the waiver that Congress intended.”) (internal quotations and citations omitted); Five Points Rd., 542 F.3d at 1124 n.3 (“The Government contends, rightly, that any such waiver must be strictly construed in favor of the United States. Nevertheless, once Congress has waived sovereign immunity over certain subject matter, a court should be careful not to assume the authority to narrow the waiver that Congress intended. As we point out in our statutory analysis, here, Congress expressly has waived sovereign immunity with respect to attorney’s fees and costs to a prevailing party in an adversarial 105 27 Graham & Rollins, the presumption in favor of preserving sovereign immunity was nearly so strong and so fundamental to the analysis as to be effectively insurmountable, even when Congress clearly expressed in EAJA that it intended to waive sovereign immunity and subject the government to liability for unreasonable litigation. The Supreme Court has warned against over-relying on sovereign immunity principles in assessing the applicability of EAJA. In Richlin Security Service Co. v. Chertoff,106 a prevailing litigant sought to recover paralegal fees under EAJA, but the government opposed its request.107 The Supreme Court ruled in favor of the litigant, holding that the litigant could recover paralegal fees at prevailing market rates.108 The Supreme Court stiffly rejected the government’s insistence that the scope of EAJA must be narrowly construed in light of sovereign immunity: “The sovereign immunity canon is just that—a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction.”109 Courts of appeals likewise have pushed back against agencies’ overreliance on the principle that waivers of sovereign immunity should be strictly construed in EAJA cases, particularly in light of the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo.110 As the Tenth Circuit recently explained: That said, we may not resort to the sovereign immunity canon at the first sign of any potential ambiguity in the text as this would abdicate our responsibility to interpret the statutes in front of us. Before turning to the canon, we must adjudication under section 504.”) (internal quotations and citations omitted); Aageson Grain & Cattle, 500 F.3d at 1045 (“Even Ardestani acknowledged, however, that the Supreme Court has recognized that, once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to assume the authority to narrow the waiver that Congress intended. . . . [W]e shall not assume the authority to narrow Congress’s waiver of sovereign immunity under the EAJA.”) (internal quotations and citations omitted). 106 553 U.S. 571 (2008). 107 Id. at 574-75. 108 Id. at 577-80. 109 Id. at 589. 110 603 U.S. 369 (2024). 28 exhaust all traditional tools of statutory construction. . . . Put differently, we cannot reflexively apply the sovereign immunity canon to adopt an immunity-preserving interpretation simply because that interpretation appears plausible on preliminary review.[111] The important principle that courts should be careful not to narrow the waiver of sovereign immunity that Congress intended is especially important and true in the context of EAJA. The purpose of narrowly construing waivers of sovereign immunity is to “protect the public fisc and to provide breathing space for legitimate Government action that might be deterred by litigation.”112 But, “these purposes are already fulfilled by the EAJA’s requirement that even prevailing parties may not be awarded fees unless the Government’s position lacked substantial justification.”113 In other words, while waiving sovereign immunity, EAJA also builds in important guardrails and restrictions on when a litigant can prevail against the government and recover against the “sovereign,” thereby still protecting the public fisc. 114 Narrowing the applicability of EAJA even further Daley v. Ceja, 158 F.4th 1152, 1157 (10th Cir. 2025) (citing Loper Bright, 603 U.S. at 385; other internal quotations and citations omitted). 111 112 Ardestani, 502 U.S. at 147 (Blackmun, J., dissenting). 113 Id. See, e.g., H.R. REP. NO. 96-1418, at 11 (“The standard [for determining whether government action is substantially justified] should not be read to raise a presumption that the government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the government to establish that its decision to litigate was based on a substantial probability of prevailing. Furthermore, the government should not be held liable where ‘special circumstances would make an award unjust.’ This ‘safety valve’ helps to insure that the government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts. It also gives the court discretion to deny awards where equitable considerations dictate an award should not be made.”). Importantly, these limitations should quell any fear of opening the floodgates for attorney’s fees against the government. What constitutes “substantial justification” under EAJA has been much litigated and suffice it to say it is a defense often successfully asserted by the government. See Kevin W. Brown, What constitutes substantial justification of government’s position so as to prohibit awards of attorneys’ fees against government under Equal Access to Justice Act (28 U.S.C.A. § 2412(d)(1)(A)), 69 A.L.R. Fed. 130 (annotating hundreds of cases). The “special circumstances” proviso is much less litigated and intended to allow the government to pursue novel but credible legal theories and allow consideration of equitable factors. In the key case of Pierce v. Underwood, the Supreme Court (majority opinion authored by Justice Scalia) rejected the petitioner’s argument that “substantial justification” should mean “justified to a high degree” and opted for a test more favorable to the government of 114 29 through the overly rigid application of sovereign immunity principles is both superfluous and plainly inconsistent with the Congressional intent behind the Act because Congress already clearly built limiting guardrails into the Act.115 Finally, we believe the primacy given to sovereign immunity is especially problematic given Congress’s apparent lack of concern with application of the doctrine when passing EAJA. EAJA necessarily had to waive sovereign immunity against the federal government to allow recovery of costs, and there is some mention and recognition of a waiver of the so-called “American Rule” in the legislative history behind the Act.116 Even so, a search of the legislative history and a review of both the 1980 and 1985 enabling statutes finds little discussion of “sovereign immunity,” much less any suggestion that the concept should be regarded with paramount importance in restricting the interpretation of EAJA or used as an interpretive rule in defining (mush less limiting) the scope of the Act. “justified to a degree that would satisfy a reasonable person.” 487 U.S. 552, 565 (1988). A more stringent test, less favorable to the government and favored by Justice Brennan, was rejected. See id. at 578 (Brennan, J., concurring in part). Ardestani, 502 U.S. at 147-48. We recognize that Justice Blackmun’s view did not ultimately prevail in Ardestani. Nevertheless, as noted above, even the majority in that case recognized the fundamental principle that once Congress has waived sovereign immunity, courts “should be careful not to assume the authority to narrow the waiver that Congress intended.” Id. at 137. The Acting Secretary relied on the Ardestani majority decision, which she said stands for the proposition that the Supreme Court “rejected the argument that EAJA applies to all ‘trial-type proceedings in which the Government is represented,’” and which she says “foreclosed” the Majority’s arguments. Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 11, 15. We read Ardestani to address a different, less specific issue than the line of courts of appeals cases cited above. In Ardestani, it appears that the plaintiff’s principal argument was that EAJA should apply to all proceedings that were conducted like those defined in APA Section 554, even if they were not specifically and technically “governed by” that section. Ardestani, 502 U.S. at 134 (“She thus contends that the phrase ‘under section 554’ encompasses all adjudications ‘as defined in’ § 554(a), even if they are not governed by the procedural provisions established in the remainder of that section.”). In other words, the Supreme Court had to decide the meaning and reach of the phrase “under section 554” in EAJA. The narrower issue here and in the cited courts of appeals cases, which were decided both before and after Ardestani, is the application of the phrase “under section 554” (as defined by Ardestani) to the statutes at issue. The Supreme Court in Ardestani did not reject the principle that courts can safely presume that quasi-judicial proceedings were intended by Congress to be governed by APA Section 554, absent an expression of congressional intent to the contrary. Thus, we disagree that the Majority’s arguments in Graham & Rollins are “foreclosed” by Ardestani. 115 116 E.g., H.R. REP. NO. 96-1418, at 9-10. 30 To the contrary, the limited discussion in the legislative history suggests that sovereign immunity was not intended as a bar to application of EAJA. For example, in one hearing on the legislation and related other bills, Representative Robert Kastenmeier (D-WI) stated: However, since that time, it has come to our attention that the United States, as a sovereign, is generally not liable for attorneys’ fees even under the common law bad faith exception. Also, although the United States may be liable for attorneys’ fees under approximately 20 Federal statutes, there are many other cases in which the United States cannot be held liable absent a statute. It is the purpose of all the pending bills to expand the liability of the Federal Government in agency proceedings and court actions.[117] This statement confirms that Congress clearly intended to waive sovereign immunity, while simultaneously providing no sense that that waiver should be narrowly interpreted to limit the reach of EAJA or to undermine the protections of the Act. While EAJA has not engendered widespread awards against agencies, for reasons that have been much debated,118 it remains a clear expression of congressional concern over the problems posed by a powerful administrative deep state and the need to provide some avenue of relief for a small entity which successfully proves its innocence in an enforcement action—and allows for that relief by waiving sovereign immunity and permitting an award of attorney’s fees and costs under certain conditions. Award of Attorney Fees Against the Federal Government: Hearings Before the Subcomm. on Courts, Civ. Liberties, & the Admin. of Justice of the Comm. on the Judiciary, House of Representatives, 96th Cong. 1 (1980) (Statement of Rep. Robert Kastermeier). In one other mention, Senator Domenici was very critical of the Department of Justice’s (DOJ) apparent assertion of sovereign immunity in cases in which it pursued protracted litigation “beyond common sense.” 125 CONG. REC. 5766 (Mar. 21, 1979). 117 See, e.g., Equal Access to Justice Reform Act of 2005: Hearing Before the Subcomm. on Courts, the Internet, & Intell. Prop., Comm. on the Judiciary, House of Representatives, 109th Cong. (2006). 118 31 Thus, we believe it was improper to interpret the sovereign immunity waiver encompassed in EAJA as narrowly or restrictively as the Acting Secretary did in Graham & Rollins. C. Congress Intended H-2B Enforcement Proceedings to be Decided on the Record When we strip away the undue weight given to sovereign immunity and consider the fundamental purposes as expressed by Congress in passing EAJA, it becomes clear, as the Majority decided in Graham & Rollins, that Congress intended the H-2B enforcement proceedings to be determined “on the record.” While we do not intend to restate the entirety of Majority’s opinion (which we believe is thoroughly researched, well-reasoned, and legally correct, and which we endorse in full), we believe it is important to emphasize critical points in the Majority’s analysis, while at the same time addressing counterpoints in the Acting Secretary’s analysis with which we do not agree. In short, despite the absence of the words “on the record” in the H-2B enforcement statute, it is clear from the nature of the proceedings and the longstanding and well-established presumptions about the APA’s applicability to quasi-judicial proceedings that these H-2B enforcement proceedings are precisely the type of proceedings to which the APA was intended to apply. i. Talismanic Statutory Language is Not Required First, we cannot overstate the fundamental principle that the H-2B enforcement statute need not use the words “on the record” or make explicit reference to APA Section 554 to conclude that Congress intended for the proceedings to be determined on the record.119 What counts instead, as the Majority explained, is whether we or the Secretary can otherwise conclude that Congress intended for the agency to adhere to the requirements of the APA.120 Federal courts, including the Supreme Court, hold this principle to be true and have routinely found that statutes that do not contain such language are still 119 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 9-10. Id. at 10 (citing St. Louis Fuel & Supply Co. v. Fed. Energy Regul. Comm’n, 890 F.2d 446 (D.C. Cir. 1989); Lane v. U.S. Dep’t of Agric., 120 F.3d 106 (8th Cir. 1997); Dantran, Inc. v. U.S. Dep’t of Lab., 246 F.3d 36 (1st Cir. 2001); Aageson Grain & Cattle, 500 F.3d at 1046; Friends of the Earth v. Reilly, 966 F.2d 690, 692-95 (D.C. Cir. 1992)). 120 32 governed by the APA.121 Even cases that ultimately conclude that that the proceedings are not governed by the APA—including some of those cited by the Acting Secretary122—still recognize that such explicit language need not be present and do not turn on the presence or absence of such talismanic language.123 E.g., Steadman v. S.E.C., 450 U.S. 91, 97 n.13 (1981) (“[T]he absence of the specific phrase [‘on the record’] from [the statute] does not make the instant proceeding not subject to § 554. . . . Rather, the ‘on the record’ requirement for [the statute] is satisfied by the substantive content of the adjudication.”) (citations omitted); Union Pac. R.R. Co. v. Surface Transp. Bd., 113 F.4th 823, 836 (8th Cir. 2024) (“In summary, the crucial question is not whether particular talismanic language was used but whether the proceedings under review fall within that category of quasi-judicial proceedings deserving of special procedural protections.”) (internal quotations and citations omitted); Five Points Rd., 542 F.3d at 1126 (“The NAD statutes do not require expressly the hearing to be on the record; nonetheless, Congress’ intent is clear. . . . [T]hose magic words need not appear for a court to determine that formal hearings are required. Congress need only clearly indicate its intent to trigger the formal, on-the-record hearing provisions of the APA.”) (internal quotations and citations omitted); Dantran, 246 F.3d at 46 (“That the statute does not command a hearing ‘on the record’—in the language of APA section 554—is of modest significance, as it has long been recognized that the applicability of the APA does not turn on the presence or absence of the precise words ‘on the record’ . . . . Rather, the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.”) (internal quotations and citations omitted); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir. 1978) (“Both [statutes] provide for public hearings, but neither states that the hearing must be ‘on the record.’ . . . At the outset we reject the position of intervenor PSCO that the precise words ‘on the record’ must be used to trigger the APA. . . . Rather, we think that the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.”); Marathon Oil, 564 F.2d at 1262 (“Since [the statute] requires only an ‘opportunity for a public hearing’ and fails to specify that permit limitations must be ‘determined on the record,’ the EPA argues that the formal adjudicatory hearing provisions of the APA are inapplicable. We disagree.”). 121 122 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8. E.g., Friends of Earth, 966 F.2d at 693 (“The text [of the statute] requires only a ‘public hearing’; it does not expressly require either that the withdrawal hearing be ‘subject to section 554’ or that the hearing be ‘on the record.’ Nevertheless, the absence of these ‘magic words’ is not dispositive.”) (citations omitted); St. Louis Fuel, 890 F.2d at 448-49 (“Our decision, we emphasize, does not turn, mechanically, on the absence of magic words. What counts is whether the statute indicates that Congress intended to require full agency adherence to all section 554 procedural components.”) (citations omitted); City of W. Chi. v. U.S. Nuclear Regul. Comm’n, 701 F.2d 632, 641 (7th Cir. 1983) (“Although Section 554 specifies that the governing statute must satisfy the ‘on the record’ requirement, those three magic words need not appear for a court to determine that formal hearings are required.”) (citations omitted). 123 33 Dantran, Inc. v. United States Department of Labor is particularly instructive on this point. In that case, after six years of litigation challenging the Department of Labor’s attempt to bar them from government contracting for alleged violations of the Service Contract Act (SCA), the plaintiff finally prevailed.124 The plaintiff then sought recovery of attorney’s fees from the Department under EAJA.125 Similar to the H-2B enforcement statute here, the SCA provided an opportunity for a hearing, but did not specifically state that a determination had to be made “on the record.”126 The First Circuit Court of Appeals began its analysis by flatly rejecting the notion that the absence of the words “on the record” dictated the outcome of the case.127 To the contrary, the court found the absence of those magic words only “of modest significance.”128 Instead, “the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.”129 With this fundamental principle in mind, the court determined that it had “no reason to doubt that Congress intended this adjudication to be governed by standard APA procedures.”130 As is the case here (and as discussed more fully below), the court observed that the enforcement proceedings dealt with factual findings with the potential for a “serious impact on private rights.” This was “exactly the kind of quasi-judicial proceeding for which the adjudicatory procedures of the APA were intended.131 Like federal courts, the Department of Labor itself has also determined that the APA and EAJA apply to statutes that do not explicitly require determinations “on the record” or refer explicitly to the APA. In 29 C.F.R. § 16.104, the Department identifies several proceedings that the Agency has “deemed to be adversarial 124 Dantran, 246 F.3d at 38. 125 Id. Id. at 45. The SCA provided: “Where the Secretary does not otherwise recommend because of unusual circumstances, he shall, not later than ninety days after a hearing examiner has made a finding of a violation of this chapter,” place the individual on the debarment list. Id. (quoting 41 U.S.C. § 354(a)). 126 127 Id. at 46. 128 Id. 129 Id. (quoting Seacoast, 572 F.2d at 876). 130 Id. 131 Id. (citation omitted). 34 adjudications which are covered by” EAJA.132 Of the statutes listed, as least three do not explicitly require the determinations to be made “on the record” or explicitly invoke the APA.133 Even absent such magic words, the Department has still determined the statutes must be determined “on the record.” The same should hold true here. The Majority and Concurrence in Graham & Rollins both agreed that the absence of the words “on the record” or explicit reference to the APA was not determinative.134 The Acting Secretary also agreed that the absence of such language from the H-2B enforcement statute was not determinative.135 However, it is clear from the remainder of the Acting Secretary’s analysis that, like the weight afforded to sovereign immunity, the absence of the talismanic words was effectively determinative in the decision.136 That approach was inconsistent with overwhelming federal authority to the contrary and warrants reconsideration by the Secretary in light of the other clear indicia of Congressional intent discussed below. 29 C.F.R. § 16.104(a). The regulation was last amended on July 9, 2007, prior to the Department of Labor receiving authority over H-2B enforcement matters. Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 6 n.19. Therefore, the H-2B enforcement statute naturally does not appear on the list. 132 29 C.F.R. § 16.104(a)(5)(i) (citing 29 U.S.C. § 2936, which has since been repealed (“[T]he applicant may request a hearing before an [ALJ].”)), (ii) (citing 26 U.S.C. § 3303(b) (stating that the Secretary may not take action until “after reasonable notice and opportunity for hearing”) and § 3304(c) (stating that the Secretary may not take action until “after reasonable notice and opportunity for hearing”)), (iii) (citing 42 U.S.C. § 503(b) (“Whenever the Secretary of Labor, after reasonable notice and opportunity for hearing . . . .”)). 133 134 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 9-10, 38-39. Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 7 (quoting St. Louis Fuel, 890 F.2d at 448, for the proposition that “EAJA applicability ‘does not turn, mechanically, on the absence of magic words.’”). 135 See id. at 6 (“[T]he majority failed give sufficient weight to the text of the INA . . . .”), 8 (“[I]n 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 . . . to require the H-2B enforcement proceedings be conducted on the record or in full compliance with section 554.”). 136 35 ii. H-2B Enforcement Proceedings Are Precisely the Type of Quasi-Judicial Proceedings to Which the APA Was Meant to Apply Rather than focusing on the presence or absence of specific talismanic language or magic words, federal courts make clear that the relevant inquiry should instead focus on the “substantive content of the adjudication” to determine whether Congress intended for the proceedings to be determined on the record under the APA.137 In conducting this analysis, courts look for certain hallmarks or characteristics of what they refer to as “quasi-judicial proceedings.” For example, courts consider whether the proceedings deal with disputes of fact or require specific factual findings and whether the proceedings involve issues impacting specific parties and private rights.138 When the adjudication at issue bears these characteristics, courts presume that Congress intended for the proceedings to be determined “on the record,” even if such language is missing from the statute. For example, in Dantran, discussed above, the underlying proceedings involved a government contractor seeking review of an administrative order debarring the contractor from receiving government contracts for its alleged violations of the SCA.139 The First Circuit stated that the applicability of the APA “turns on the substantive nature of the hearing Congress intended to provide.”140 For the SCA proceedings, the court had “no reason to doubt that Congress intended this adjudication to be governed by standard APA procedures,” because the adjudication “involve[d] specific factual findings with potential for serious impact on private rights.”141 The court concluded that this was “exactly the kind of quasiSteadman, 450 U.S. at 97 n.13; accord Union Pac., 113 F.4th at 836 (“Application of the procedural safeguards [of the APA] ‘rests on the substantive character of the proceedings involved,’ ‘[a]bsent congressional intent to the contrary.’ . . . A court’s inquiry must be ‘focused on the nature of the administrative determination before [it].’”) (quoting Marathon Oil, 564 F.2d at 1263-64); Seacoast, 572 F.2d at 876 (“Rather, we think that the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.”); Marathon Oil, 564 F.2d at 1264 (“In summary, the crucial question is not whether particular talismanic language was used but whether the proceedings under review fall within that category of quasi-judicial proceedings deserving of special procedural protections.”) (citations omitted). 137 E.g., Union Pac., 113 F.4th at 836; Dantran, 246 F.3d at 46; Seacoast, 572 F.2d at 876; Marathon Oil, 564 F.2d at 1261. 138 139 Dantran, 246 F.3d at 38. 140 Id. at 46 (citation omitted). 141 Id. (internal quotations and citation omitted). 36 judicial proceeding for which the adjudicatory procedures of the APA were intended.”142 The First Circuit reached a similar result in an earlier case, Seacoast v. AntiPollution League v. Costle, dealing with a party’s application to the EPA for a permit to discharge pollutants.143 Like in Dantran, the First Circuit determined that Congress intended the APA to apply to the proceedings, despite the absence of the words “on the record” from the applicable statute, because “the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.”144 The proceedings required the agency decisionmaker to “make specific factual findings about the effects of discharges from a specific point source,” and to determine whether to grant permits to a specific applicant based on these findings.145 Additionally, the decision would “not make general policy,” and “[o]nly the rights of the specific applicant will be affected.”146 Further, “the factual questions involved in the issuance of [the permits] will frequently be sharply disputed.”147 Based on these characteristics, the court determined that “[t]his is exactly the kind of quasi-judicial proceeding for which the adjudicatory procedures of the APA were intended.”148 Id. (internal quotations and citations omitted). The Acting Secretary attempted to distinguish Dantran because the First Circuit also considered the fact that “the APA is indirectly made applicable by statute” through a chain of cross-references to another statute. Id. at 47; see also Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8. However, the fact that the court was also able to patch together a “chain of relationship” pointing to the applicability of the APA does not detract from Dantran’s central thesis that “the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide.” Dantran, 246 F.3d at 46 (internal quotations and citations omitted). 142 143 572 F.2d at 874. 144 Id. at 876. 145 Id. 146 Id. 147 Id. Id. As the Acting Secretary noted in Graham & Rollins, the First Circuit later rejected a party’s reliance on Seacoast in Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006). See Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 14 n.10. However, the First Circuit in Dominion Energy stated that it “in no way disparage[d] the soundness of Seacoast’s reasoning,” but was compelled to adopt the agency’s new, conflicting interpretation because the Supreme Court had since decided Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Dominion 148 37 The Ninth Circuit likewise concluded in Marathon Oil that the nature of the proceedings, rather than the words of the statute, determined whether Congress intended for formal APA procedures to apply. In that case, the underlying proceedings dealt with limitations placed by the EPA on applicants’ permits with respect to offshore oil platforms.149 Once again, although the statute provided an opportunity for a hearing, it did not explicitly reference the APA or clearly signal that determinations had to be made “on the record.”150 The EPA argued that the absence of the words “on the record” signaled that the formal hearing provisions of the APA were inapplicable.151 The Ninth Circuit disagreed, reasoning that the determination of whether the APA applied “does not rest on the presence or absence of the magical phrase ‘on the record.’” Instead, “[a]bsent congressional intent to the contrary, it rests on the substantive character of the proceedings involved.”152 In reaching this conclusion, the court explained that “Congress recognized that certain administrative decisions closely resemble judicial determinations and, in the interest of fairness, require similar procedural protections” under the APA. 153 “These ‘quasi-judicial’ proceedings determine the specific rights of particular individuals or entities. And, like judicial proceedings, the ultimate decision often turns, in large part, on sharply-disputed factual issues.”154 These classic adjudications are “precisely the category of proceedings Congress sought to address in the APA.”155 The Eighth Circuit recently conducted the same analysis in Union Pacific Railroad v. Surface Transportation Board, dealing with adjudications of rate disputes between shippers and rail carriers.156 Once again, the statute called for an Energy, 443 F.3d at 18. As discussed infra page 45, the Supreme Court has since overturned Chevron, so Seacoast’s reasoning should still stand in the First Circuit. 149 Marathon Oil, 564 F.2d at 1256. 150 Id. at 1262. 151 Id. 152 Id. at 1263. 153 Id. at 1261. 154 Id. 155 Id. at 1264. 156 113 F.4th at 828. 38 opportunity for a hearing, but did not explicitly state that the adjudication had to be determined “on the record.”157 Citing heavily to Marathon Oil, the court confirmed that its inquiry must be “focused ‘on the nature of the administrative determination before [it],’” rather than on the presence or absence of magic words.158 Considering the nature of the proceedings, the court determined that the agency adjudicator was “engaging in ‘an agency process leading to a final disposition’ of the parties’ rate dispute,” signaling that Congress intended formal APA procedures to apply.159 These proceedings that bear the characteristics of traditional judicial adjudications can be contrasted with other, less formal adjudications and other proceedings that do not warrant the same presumption regarding the applicability of formal APA procedures. For example, in Friends of the Earth v. Reilly, the Court of Appeals for the D.C. Circuit considered proceedings to withdraw a state’s authorization to administer a hazardous waste program.160 Consistent with Dantran, Seacoast, Marathon Oil, and Union Pacific, the court in Friends of the Earth opined that “it is the nature of the issues to be resolved in the [ ] proceeding which is determinative” of whether Congress intended the APA to apply.161 The court explained that “a section 554 hearing, with its attendant procedural protections, has as its primary purpose the determination of ‘adjudicative facts,’ i.e., those facts which ‘usually answer the questions of who did what, where, when, how, why, with what motive or intent . . . [and] are roughly the kind of facts that go to a jury in a jury case.’”162 In contrast, the withdrawal proceedings at issue in that case primarily involved legal issues and issues best classified as involving “legislative facts”—“those ‘general facts which help the tribunal decide questions of law and policy.’”163 Thus, the proceedings were not the type of quasi-judicial proceedings for which courts presume Congress intended APA Section 554 to apply. 157 Id. at 836. 158 Id. (quoting Marathon Oil, 564 F.2d at 1264). 159 Id. (quoting Marathon Oil, 564 F.2d at 1263). 160 966 F.2d at 691. 161 Id. at 693 (citation omitted). 162 Id. (quoting Kennth Culp Davis, Administrative Law Treatise § 12.3, at 413 (2d ed. 1979)). 163 Id. at 693-94 (quoting Davis § 12.3, at 413). 39 An earlier case from the Third Circuit Court of Appeals, Bell Telephone Company v. Federal Communications Commission, applied similar reasoning.164 In that case, the court considered whether the statute at issue, dealing with a requirement for telephone companies to provide certain communication services and facilities to other carriers, required an evidentiary hearing under the APA.165 Analyzing the nature of the issues involved in the proceedings, the court determined that an APA evidentiary hearing was not required.166 “When an administrative agency develops a general policy applicable on a prospective basis, courts have found it unnecessary to require evidentiary hearings” under the APA.167 The court specifically contrasted the issues there dealing with the implementation of “a new policy based upon the general characteristics of an industry,” with more traditional “[a]djudicatory hearings . . . when the agency bases its decision on the peculiar situation of individual parties who know more about this than anyone else.”168 Whereas the former are not subject to the APA, the latter are. All of these cases—many of which were already cited in Graham & Rollins— consistently and abundantly make clear that when Congress enacts statutes providing for proceedings that bear the hallmarks of traditional judicial adjudications, including proceedings dealing with the rights of particular individuals or entities and decisions that turn on disputed factual issues, Congress presumes that the hearings will be conducted “on the record” in accordance with the formal procedures of the APA. In contrast, when the proceedings deal with 164 503 F.2d 1250 (3d Cir. 1974). 165 Id. at 1253-54, 1264. 166 Id. at 1266. 167 Id. (citations omitted). Id. at 1266-67. The FAD appears to have selectively quoted Bell Telephone, stating “[t]he phrase ‘opportunity for hearing’ lacks the reference to a ‘record’ necessary to trigger the evidentiary requirements of the [APA].” Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 13-14 (quoting Bell Tel., 503 F.2d at 1264). In context, it is clear that the reason the Third Circuit reached this result is because the adjudication in the case did not bear the classic characteristics of a typical quasi-judicial adjudication; therefore, consistent with the presumption proffered above, more explicit reference to “on the record” proceedings was necessary to trigger application of the APA. Indeed, the Third Circuit cited United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), and United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972), both of which dealt with rulemaking, as opposed to traditional quasi-judicial adjudication, and both of which suggested that traditional quasi-judicial adjudication would not need the same “on the record” language to trigger the APA. See infra note 183. 168 40 questions of law or policy, “legislative facts,” or only apply prospectively, Congress must state more clearly if it intends for APA Section 554 to apply.169 As the Majority in Graham & Rollins took great care to explain, this basic dichotomy between quasi-judicial proceedings and other, less formal adjudications and rulemaking, is important and consistent with longstanding interpretations and presumptions about the APA dating back nearly 80 years, or more.170 Not long after the APA was passed in 1946, the Attorney General issued the APA Manual in 1947, providing a definitive and thorough examination of the APA, its purposes, and its legislative history. Consistent with Dantran, Seacoast, Marathon Oil, Union Pacific, Friends of the Earth, and Bell Telephone, the APA Manual clearly explains when “on the record” language is needed to trigger the APA and conversely when it is assumed by Congress that the APA applies to the proceedings even in the absence of such language. In rulemaking and non-traditional or residual “fringe” adjudication, for example, Congress must include specific language that the proceedings must be determined “on the record” or otherwise expressly invoke the APA for the APA’s procedural requirements to attach. In contrast, Congress presumes that traditional quasi-judicial proceedings, like the H-2B enforcement proceedings here, are governed by the APA even in the absence of such language: 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 To be clear, we do not read the words “on the record” out of the statute or otherwise consider them surplusage or meaningless. See Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 10 n.6. As the Majority carefully explained, the legislative history of the APA explains when and why more precise or explicit “on the record” language is needed when dealing with rulemaking or less formal adjudication. Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 11-15; see also Seacoast, 572 F.2d at 877 (“Our holding does not render the opening phrases of s 554 of the APA meaningless. We are persuaded that their purpose was to exclude governmental functions . . . which traditionally have never been regarded as adjudicative in nature . . . . Without some kind of limiting language, the broad sweep of the definition of ‘adjudication’, defined principally as that which is not rule making, 5 U.S.C. s 551(6), (7), would include such ordinary procedures that do not require any kind of hearing at all.”) (citations and quotations omitted). 169 Our concurring colleague provides a robust, incredibly thorough examination of the history and passage of the APA dating back even further. His analysis shows that with the passage of the APA, lawmakers intended that if Congress mandated a hearing for adjudications, then the agency’s decision would be decided based on the record developed at the hearing. 170 41 the basis of the evidence adduced at the hearing. With respect to rule making, it was concluded, supra, that a statutory provision that rules be issued after a hearing, without more, should not be construed as requiring agency action “on the record,” but rather as merely requiring an opportunity for the expression of views. That conclusion was based on the legislative nature of rule making, from which it was inferred, unless a statute requires otherwise, that an agency hearing on proposed rules would be similar to a hearing before a legislative committee, with neither the legislature nor the agency being limited to the material adduced at the hearing. No such rationale applies to administrative adjudication. In fact, it is assumed that where a statute specifically provides for administrative adjudication (such as the suspension or revocation of a license) after opportunity for an agency hearing, such specific requirement for a hearing ordinarily implies the further requirement of decision in accordance with evidence adduced at the hearing. H.R. Rep. p. 51, fn. 9 (Sen. Doc. p. 285).[171] Courts like the First Circuit in Dantran and Seacoast recognize the APA Manual’s authoritative analysis in assessing Congress’s intent.172 Here, there is no question that the H-2B enforcement proceedings bear the same characteristics and hallmarks of quasi-judicial proceedings as Dantran, Seacoast, Marathon Oil, and Union Pacific and as recognized in the APA Manual. APA Manual at 42-43; accord id. at 33 (stating certain statutes “rarely specify in terms that the agency action must be taken on the basis of the ‘record’ developed in the hearing;” however, when agency action follows a hearing required by statute, the “agencies themselves and the courts have long assumed that the agency’s action must be based upon the evidence adduced at the hearing”), 42 (“Other statutes authorizing agency action which is clearly adjudicatory in nature, such as the revocation of licenses, specifically require the agency to hold a hearing but contain no provision expressly requiring decision ‘on the record’. . . . [Agencies] ha[ve] always assumed that these orders must be based upon the evidentiary record made in the hearing, and the courts have held that upon review the validity of an order issued under the [enabling act] must be determined upon the administrative record. It seems clear that administrative adjudication exercised in this context is subject to sections 5, 7 and 8 [APA Sections 554, 556, 557].”) (citations omitted). 171 172 Dantran, 246 F.3d at 46; Seacoast, 572 F.2d at 877. 42 As the Majority explained in Graham & Rollins, these proceedings involve disputed issues of fact that impact the rights of specific parties.173 The Administrator penalizes specific employers for alleged violations of H-2B program requirements. The proceedings are fact-intensive and often involve heavily disputed factual questions—whether the employer engaged in the behavior of which it is accused, and whether such behavior violates the program regulations. The proceedings are also constrained to the specific entities named in the action and address only past alleged violations—the decisions reached by the agency are not prospective, do not dictate or create matters of general policy, and, though they have precedential value, do not specifically address the rights or responsibilities of any other entity outside of the adjudication. The proceedings also carry significant and immediate economic consequences for the specific entities involved, including repayment of wages, payment of civil money penalties, and debarment. Thus, the H-2B enforcement proceedings are “exactly the kind of quasi-judicial proceeding for which the adjudicatory procedures of the APA were intended.”174 In the FAD, the Acting Secretary stated that she “disagree[d] 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 ‘quasijudicial.’”175 She likewise proffered that “courts have generally rejected the majority and Respondent’s argument that a statutorily required adjudicative hearing is presumptively ‘on the record.’”176 The FAD largely disregarded or attempted to distinguish the cases cited above, citing instead other cases, none of which, in our view, undercut the longstanding fundamental principles and presumptions articulated above. First, the decision cites Crestview Parke Care Center v. Thompson.177 In that case, the Centers for Medicare and Medicaid imposed a civil money penalty on a nursing facility as a sanction for violations of regulations.178 The nursing facility requested a hearing before an ALJ to dispute the penalty.179 Unlike here, the statute at issue in that 173 See Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 18. 174 See Dantran, 246 F.3d at 46 (internal quotations and citations omitted). 175 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 15. 176 Id. at 13. 177 373 F.3d 743 (2004). 178 Id. at 744. 179 Id. 43 case required the agency to hold a hearing “on the record.” Because the statute included the words “on the record,” the Sixth Circuit concluded that the statute expressly “invoke[d] the panoply of procedures described by the formal-adjudication provisions of the APA.”180 In dicta, the Sixth Circuit also proffered that “[t]he Supreme Court has also implied that formal adjudication procedures are only necessary when a statute uses the magic words ‘on the record,’” citing United States v. Florida East Coast Railway.181 Florida East Coast Railway dealt with agency rulemaking, rather than adjudication.182 As discussed above, the presumptions are radically different in the two contexts—while “magic words” may be necessary in the rulemaking context to signal adherence to the APA, they are not required in traditional adjudication, as all of the courts of appeals cases cited above indicate and as even the Acting Secretary acknowledged in Graham & Rollins. Indeed, the Supreme Court suggested as much in Florida East Coast Railway and a subsequent case, United States v. Allegheny-Ludlum Steel Corporation, with both stating that the decisions turned on the specific fact that the agency action at issue was rulemaking and that the outcome would differ for cases involving adjudication.183 Thus, the Sixth Circuit’s statement is inconsistent with the weight of federal authority, including the very case it cited for the proposition. 180 Id. at 748. 181 Id. 182 Fla. E. Coast Ry., 410 U.S. at 231. In Florida East Coast Railway, the Supreme Court concluded the statute which required action “after hearing,” was not required to be decided on the record under the APA. However, the case involved rulemaking, and the Supreme Court recognized that the term “hearing” “undoubtedly has a host of meanings,” which “undoubtedly will vary, depending on whether it is used in the context of a rulemaking-type proceeding or in the context of a proceeding devoted to the adjudication of particular disputed facts.” Id. at 239. The Court also took care to discuss “[t]he basic distinction between rulemaking and adjudication,” and distinguish another case because it involved “a ‘quasi-judicial’ proceeding of a quite different nature form the one we review here.” Id. at 244. In Allegheny-Ludlum Steel, the Supreme Court likewise concluded another statute, which required action “after hearing,” was not required to be decided on the record under the APA. However, the case again involved rulemaking, and the Supreme Court again took care to distinguish between rulemaking and adjudication. Allegheny-Ludlum Steel Corp., 406 U.S. at 757. 183 44 Next, the FAD cited Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency184 and Dominion Energy Brayton Point, LLC v. Johnson.185 In both cases, the courts of appeals determined that statutes that required proceedings to be conducted after a “hearing,” without explicit reference to whether the proceedings needed to be determined “on the record,” did not trigger the APA.186 However, both cases turned on Chevron U.S.A. v. Natural Resources Defense Council,187 under which courts deferred to federal agencies’ reasonable interpretations of ambiguous statutes.188 Citing Chevron, the courts in both cases deferred to agency interpretations that the statutes did not trigger the APA’s procedural requirements. Significantly, the Supreme Court expressly and firmly overturned Chevron in 2024’s Loper Bright Enterprises v. Raimondo.189 In that decision, the Court held that rather than deferring to agency interpretations, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”190 Thus, the reasoning of Chemical Waste Management and Dominion Energy no longer stands and the cases cannot undermine the weight of authority discussed above.191 Finally, the FAD cited City of West Chicago v. U.S. Nuclear Regulatory Commission.192 Consistent with the many cases cited above, the Seventh Circuit 184 873 F.2d 1477 (D.C. Cir. 1989). 185 443 F.3d 12 (1st Cir. 2006). 186 Chem. Waste Mgmt., 873 F.2d at 1480-82; Dominion Energy, 443 F.3d at 14-17. 187 467 U.S. 837 (1984). 188 Chem. Waste Mgmt., 873 F.2d at 1480-82; Dominion Energy, 443 F.3d at 14-17. 189 603 U.S. 369 (2024). 190 Id. at 412. In Loper Bright, the Court explained that Chevron incorrectly “demand[ed] that courts mechanically afford binding deference to agency interpretations, even those that have been inconsistent over time. Still worse, it forces courts to do so even when a preexisting judicial precedent holds that the statute means something else . . . .” Loper Bright, 603 U.S. at 399 (emphasis original). Dominion Energy provides a quintessential example of this concern in action. In that case, the EPA had previously required formal evidentiary hearings consistent with the APA via regulation. After Chevron, though, the EPA amended the regulations to remove the evidentiary hearing requirement and cited Chevron to compel the court to defer to its new interpretation. Dominion Energy, 443 F.3d at 15. 191 192 701 F.2d 632 (7th Cir. 1983). 45 recognized in that case that the statute need not include the “magic words” of “on the record” for Congress to have intended for formal hearings under the APA to apply.193 Like the cases above, the Seventh Circuit also recognized the distinction between formal adjudication and informal adjudication.194 Even so, the Seventh Circuit ultimately concluded it could not discern “evidence that Congress intended to require formal hearings” under the statute at issue.195 Notably, though, the Seventh Circuit did not carefully review the characteristics of the nature of the proceedings in determining whether the APA applied to the statute and proceedings at issue. As a result, the Seventh Circuit’s analysis diverges markedly from its sister courts discussed above.196 Accordingly, we believe the longstanding and well-established presumptions articulated by the Majority in Graham & Rollins dictate the conclusion that Congress intended for these proceedings to be governed by the APA and decided on the record. D. The Decision Gave Undue Weight to Language Contained in Other Provisions of the INA In concluding that Congress did not intend to require that H-2B enforcement proceedings be conducted on the record, the Acting Secretary, like the Concurrence, observed that unlike the H-2B enforcement provision, “‘several of the other 193 Id. at 641. 194 Id. at 644. 195 Id. at 645. Elsewhere, the FAD also cited St. Louis Fuel in support of the proposition that “in cases where the statutory provisions at issue does not demonstrate intent to apply all of section 554’s required procedures, courts have concluded that EAJA does not apply.” Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8. Consistent with Dantran, Seacoast, Marathon Oil, Union Pacific, and the other cases cited above, the court in St. Louis Fuel recognized that the “absence of magic words” was not determinative. St. Louis Fuel, 890 F.2d at 448. However, the statute at issue there provided specific procedural requirements that “provide[d] something less than APA section 554 mandates.” Id. at 449. Indeed, legislative history confirmed that the statute was intended to “afford[ ] a little bit less opportunity for a full adjudicatory type hearing than is afforded by the Administrative Procedure Act.” Id. Thus, Congress clearly did not intend for the APA to apply to the proceedings. Here, in contrast, there are no separately identified minimum procedural requirements that would suggest “something less than APA section 554 mandates.” If anything, the absence of alternative procedural requirements suggests that Congress instead intended for APA Section 554 to apply. 196 46 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.’”197 The Acting Secretary then cited to selected provisions governing the employment of unauthorized migrants, a provision governing document fraud, and a provision governing international marriage brokers, as well as certain enforcement provisions under the H-1B, H-1B1, and E-3 programs.198 Citing the Supreme Court’s decision in Russello v. United States,199 the Acting Secretary stated that “[t]hese 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.”200 We disagree. The canon applied by the Supreme Court in Russello logically depends on the provisions in question being very closely aligned and being drafted in close temporal proximity. To be sure, it may be a valid interpretive presumption in certain cases like Russello, where the reviewing court can confirm that Congress was careful and deliberate in drafting disparate pieces of legislation.201 However, this presumption does not apply when the sections are dissimilar, with different language and different formulations addressing different circumstances;202 when there are examples or proof of inexact drafting in the statute;203 when there are alternative explanations for a difference in statutory language;204 when the provisions are not enacted or considered simultaneously;205 or when the provisions Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8 (quoting Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 39) (emphasis original). 197 198 Id. at 8-9. 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.”). 199 200 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 9. 201 Russello, 464 U.S. at 22-24. Reichert v. Kellogg Co., Nos. 24-1442, 5945, 2026 WL 734673, at *10 (6th Cir. Mar. 16, 2026). 202 Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Lab., 776 F.3d 157, 165 (3d Cir. 2015). 203 204 Gormon v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1156 (9th Cir. 2009). U.S. ex rel. Int’l Bhd. of Elec. Workers Loc. Union No. 98 v. Farfield Co., 5 F.4th 315, 332 (3d Cir. 2021) (citation omitted). 205 47 address wholly distinct subject matters.206 Thus, “Russello does not provide a dispositive canon. Even at its strongest, Russello provides a single canon, a subset of a single tool of statutory interpretation, which may be displaced by other tools.”207 In this case, the FAD cited a handful of disparate provisions of the INA that were passed by different Congresses at different times in different legislation, and that deal with different types of proceedings that are handled in different contexts.208 In our view, we think it is unreasonable and illogical to apply the Russello presumption in these circumstances and conclude that the omission of the words “on the record” in the H-2B enforcement provision evinces a careful and purposeful choice by Congress to omit this provision from the scope of the APA. To ascribe the determinative meaning the Assistant Secretary asserts would be a myopic view of the legislative machinations of Congress in drafting provisions which can often be ad-hoc in reality and not necessarily consistent with each other, depending on the circumstances and timing of that draftsmanship. Stated more directly, the congressional cauldron of decision-making does not always proceed on a linear straight line of logic, as is assumed under the Russello presumption. Instead, we believe it is far more appropriate to conclude, consistent with eighty years of legal interpretations discussed above, that Congress intended for these proceedings to be determined “on the record” under formal APA adjudication procedures, just like the myriad other quasi-judicial proceedings across the administrative landscape that bear the same characteristics. 206 Id. (citations omitted). Grand Trunk W. R.R. Co. v. U.S. Dep’t of Lab., Admin. Rev. Bd., 875 F.3d 821, 825 (6th Cir. 2017) (citation omitted). 207 The provisions cited by the Acting Secretary also use different language to invoke the “on the record” or APA requirement. Some require a hearing “in accordance with the requirements of section 554 of Title 5” (8 U.S.C. §§ 1324a(e)(3)(B), 1324c(d)(2)(B)); one requires a hearing “on the record in accordance with subchapter II of chapter 5 of Title 5 (popularly known as the Administrative Procedure Act)” (8 U.S.C. § 1375a(d)(5)(A)(ii)); and some require a hearing “in accordance with section 556 of Title 5” (8 U.S.C. § 1182(n)(2)(B), (n)(2)(G)(viii), (t)(3)(B)). If anything, the disparate language and lack of uniformity evince a lack of purposeful draftsmanship by Congress. 208 48 E. Common Sense Dictates that Congress Intended H-2B Enforcement Proceedings be Determined “On the Record” Finally, we end with obvious common sense that supports concluding that Congress intended formal APA procedures, including the requirement for a determination to be made “on the record,” to apply to H-2B enforcement proceedings, just like other traditional quasi-judicial adjudications. Employers participating in the H-2B program must comply with many requirements and conditions. For example, as was at issue in this case, employers must pay the appropriate wage to the H-2B employees, free and clear.209 Employers must also ensure that they do not give preferential treatment to H-2B employees over domestic employees;210 must provide full-time work;211 must list, and abide by, job qualifications and requirements;212 must pay visa fees and transportation costs to and from the place of employment;213 must disclose, and abide by, the geographical area of intended employment;214 must abide by certain requirements if employees separate from employment early;215 and are bound by a continuing requirement to hire U.S. workers.216 The Administrator may bring enforcement actions for violations of these program regulations and seek the recovery of unpaid wages, civil money penalties, and debarment from participating in the H-2B program for up to five years, among other remedies.217 Thus, H-2B enforcement proceedings can involve serious accusations of wrongdoing and steep remedies. If H-2B enforcement proceedings like these are not made and decided “on the record,” then each case “could be decided on the basis of evidence that a court would never see or, what is worse, that a court could not be sure existed.”218 Congress cannot have intended such a result and the proposition 209 29 C.F.R. § 503.16(a), (b). 210 Id. § 503.16(q). 211 Id. § 503.16 (d). 212 Id. § 503.16 (e). 213 Id. § 503.16(j). 214 Id. § 503.16(x). 215 Id. § 503.16(y). 216 Id. § 503.16(t). 217 Id. §§ 503.19, .20. 218 See Seacoast, 572 F.2d at 877. 49 that an agency could bring enforcement actions and sanctions against an employer, or any other entity, in a hearing type forum without concurrently creating a record of those proceedings for the purposes of subsequent review by another body is absurd. The time of the King’s Star Chamber is long past. Yet this is the logical result of the FAD’s reasoning.219 Instead, we think it is safe and imminently reasonable to conclude, in line with nearly 80 years of precedent and legal presumptions, and in line with common sense, that Congress intended to apply the panoply of procedural protections provided by the APA to these quasi-judicial adjudications. CONCLUSION In sum, we are bound by the Acting Secretary’s decision in Graham & Rollins, and therefore are compelled to affirm the ALJ’s dismissal of this case. However, for the reasons above, we encourage the Secretary of Labor to revisit and reverse Graham & Rollins, apply the reasoning of the Majority to this case, and conclude that EAJA applies to these H-2B enforcement proceedings so that Morton Concessions’ EAJA fees petition can be considered by the ALJ below. SO ORDERED. RANDEL K. JOHNSON Chief Administrative Appeals Judge PHILIP G. KIKO Administrative Appeals Judge This absurd result also buttresses the conclusions of the concurring opinion discussing why it was not logically necessary to always state “on the record” every time a hearing was required in a statute. As night follows day, the two logically and simply flow together. 219 50 Judge Burrell, concurring: The majority opinion cites the ATTORNEY GENERAL’S MANUAL,220 for explanation as to why Congress used “on the record” in Section 5 (now Section 554). In this concurring opinion, I expand upon those points with a fuller illumination of Congress’s use of “on the record” language and how it came to be in the form it was for the APA. INTRODUCTION221 The APA at Section 554(a) provides as follows: This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record afte [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A8e38b47b82a82676. Public record. Not legal advice.