Secretarial Decisions

Office of Federal Contract Compliance Programs, USDOL v. WMS Solutions, LLC, ARB No. 2020-0057, ALJ No. 2015-OFC-00009 (Sec'y Dec. 23, 2022) (Final Agency Decision and Order)

Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Scott v. E.O. Habhegger Co., ARB Nos. 2022-0036, -0037, ALJ No. 2019-STA-00048 (ARB Dec. 5, 2022) (Decision Dismissing Petitions for Review Without Prejudice)

DISMISSAL OF PETITIONS FOR REVIEW; ALJ'S DECISION DID NOT CONSTITUTE A FINAL RULING BECAUSE RECORD WAS HELD OPEN FOR FURTHER ACTION AS TO DAMAGES; PETITIONS FOR REVIEW NOT YET RIPE FOR CONSIDERATION

In Scott v. E.O. Habhegger Co., ARB Nos. 2022-0036, -0037, ALJ No. 2019-STA-00048 (ARB Dec. 5, 2022), the ARB dismissed the parties' petitions for review without prejudice. The ARB noted that the ALJ issued a Decision and Order ordering reinstatement based on the finding that Respondent unlawfully retaliated against Complainant, but kept the record open to determine Respondent's obligation for backpay and further damages. The Board found the ALJ's D. & O. did not constitute a final ruling because the record was held open for further action and the ALJ had not yet issued a final ruling on all of Respondent's obligations as to damages. Thus, the ARB found that the matter was not yet ripe for consideration.

Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA-00005 (ARB Dec. 16, 2022) (Order Denying Reconsideration)

ORDER DENYING MOTION FOR RECONSIDERATION; RESPONDENT'S MOTION FOR RECONSIDERATION FAILED TO DEMONSTRATE SUFFICIENT GROUNDS FOR THE BOARD TO RECONSIDER ITS DECISION

In Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA-00005 (ARB Dec. 16, 2022), the ARB denied Respondent's request for reconsideration. The Board held that it would reconsider a decision and order only under limited circumstances. These circumstances include where the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board's decision, (iii) a change in the law after the Board's decision, or (iv) failure to consider material facts presented to the Board before its decision.

Respondent contended that the Board failed to consider material and undisputed evidence. Specifically, Respondent argued that Complainant's complaints were based on a perceived violation of company policy, rather than a violation of the Patient Protection and Affordable Care Act (ACA) and that “this error was compounded by a modification of the applicable burden at the summary decision stage[,] which relieved [the complainant] of his obligation to cite to record evidence to create a genuine issue of material fact on the requisite element of belief.”

The Board determined that Respondent merely reiterated arguments that were previously considered by the Board. The Board restated its finding from its Order of Remand that the record was “not complete enough to determine the extent of [the complainant's] communications with [the respondent], how these communications implicated the employer shared responsibility provisions, [the complainant's] subjective and objective beliefs at the time that these communications were made[,]” and whether the complainant's complaints were based upon a perceived violation of company policy, a perceived violation of the ACA, or both. Ultimately, the Board found that the respondent failed to demonstrate a ground upon which the ARB will grant reconsideration.

Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022) (Decision and Order Affirming in Part and Reversing in Part)

APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; THE EQUAL ACCESS TO JUSTICE ACT APPLIES TO H-2B ENFORCEMENT MATTERS UNDER THE IMMIGRATION AND NATIONALITY ACT BECAUSE ADJUDICATIONS IN H-2B ENFORCEMENT PROCEEDINGS ARE UNDER SECTION 554 OF THE ADMINISTRATIVE PROCEDURE ACT

In Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022), the majority of the ARB panel concluded that the Equal Access to Justice Act (EAJA) applies to H-2B enforcement matters under the Immigration and Nationality Act (INA). EAJA allows prevailing parties that are not the United States to recover attorneys' fees in cases involving an adversary adjudication, which EAJA defines as an adjudication under Section 554 of the Administrative Procedure Act (APA), if the United States' position during the litigation is not substantially justified.

The majority looked to the text of Section 554 of the APA and articulated a three-prong test, which has been adopted by multiple circuit courts of appeals, for deciding whether the APA applies to administrative proceedings. First, there must be an adjudication. Second, the adjudication must be required by statute to be determined “on the record.” Finally, the statute must provide an “opportunity for an agency hearing.”

There was no dispute that H-2B enforcement proceedings under the INA constitute an “adjudication,” and that the statute provides an “opportunity for an agency hearing.” However, the Administrator argued that H-2B enforcement proceedings were not required to be “on the record,” and, thus, the APA and EAJA did not apply.

Following the precedent established by many circuit courts of appeals, the majority found that statutes are not required to contain the words “on the record” for Section 554 to apply. Instead, the key inquiry is whether Congress intended for the APA to apply to the hearing at issue. After examining the statutory language, the legislative history and intent of the APA, and the nature of the hearing and the rights in dispute in an H-2B enforcement proceeding, the majority found that Congress intended for H-2B enforcement proceedings to be on the record. The majority concluded that because H-2B enforcement proceedings were on the record, they were under Section 554 of the APA and EAJA applied.

One Member dissented from this portion of the decision. The dissenting Member began by emphasizing that, for EAJA to apply, Congress must have intended to require full agency adherence to the complete panoply of procedural mechanisms set forth in the APA, including the requirement under APA Section 554 that proceedings be conducted “on the record.” The dissenting Member also emphasized that EAJA constitutes a partial waiver of sovereign immunity, and any such waiver must be strictly construed.

Considering these fundamental principles, the dissenting Member concluded that nothing in the language, context, or history of the H-2B enforcement provisions indicated that Congress intended to require the proceedings to be conducted “on the record” under APA Section 554. In particular, the dissenting Member noted that the text of the H-2B statute did not explicitly require the proceedings to be determined on the record, or otherwise reference or incorporate APA Section 554. In contrast, several of the other enforcement provisions Congress added elsewhere to the INA, both before and after the 2005 enactment of the H-2B enforcement provisions, expressly invoke and incorporate APA Section 554. In Russello v. United States, 464 U.S. 16, 23 (1983), the Supreme Court stated that “where Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.” Therefore, the dissenting Member reasoned that “Congress's frequent practice of clearly and explicitly requiring several of the INA's enforcement provisions to be adjudicated under the APA, both before and after it enacted the H-2B enforcement provisions without the same requirement, should, consistent with Russello, be considered purposeful,” especially because “there is no expression of contrary congressional intent anywhere in the H-2B enforcement provisions, in their legislative history, or in the broader INA statute.”

The dissenting Member also challenged the majority's conclusion that Congress's intent should be inferred or assumed based on the “quasi-judicial” nature of H-2B enforcement proceedings. First, the dissenting Member rejected the notion that by statutorily requiring an adversarial adjudicatory hearing, Congress also necessarily or naturally intended for the hearing to be conducted “on the record.” According to the dissenting Member, this reasoning ignored the decisions of Courts of Appeals making clear that the statutory obligation to provide a hearing and the statutory obligation to make a determination “on the record” are independent, discrete procedural components of adversarial adjudication under the APA. Additionally, the dissenting Member concluded that even if it might ordinarily be assumed that Congress intends for quasi-judicial adjudicatory proceedings to be conducted “on the record,” the context of the INA, specifically, indicated that Congress did not intend for APA Section 554 to apply to H-2B enforcement proceedings.

Finally, the dissenting Member disagreed with the majority's conclusion that due process concerns, the nature of the interests and rights involved, and the immediate economic consequences that could result from H-2B enforcement proceedings weighed in favor of concluding that Congress intended to require the proceedings to be conducted under APA Section 554. The dissenting Member observed that “Congress permits the Secretary of Labor to impose monetary penalties, debar violators, and impose other administrative remedies in other enforcement proceedings without even conducting a hearing, let alone an adversarial adjudication conducted in compliance with the full range of proceedings required by the APA.” Likewise, citing the Supreme Court's decision in Mathews v. Eldridge, 424 U.S. 319, 334 (1976) and decisions from other federal courts, the dissenting Member concluded that “a litigant's right to due process does not necessarily require a formal adversarial adjudication of the type contemplated by APA section 554 in all instances.”

APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT; ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT DENIED BECAUSE THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION ADVANCED A LEGAL POSITION THAT WAS SUBSTANTIALLY JUSTIFIED, DESPITE LOSING ON THE MERITS

In Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022), the ARB reversed the ALJ's finding that the Administrator's position was not substantially justified during the litigation, and, therefore, concluded that Respondent was not entitled to attorneys' fees under EAJA.

First, the Board rejected Respondent's argument that the Administrator waived any argument regarding the substantially justified issue by failing to respond to the Respondent's EAJA petition before the ALJ. The Board found that the EAJA statute places the burden of determining whether the government's position was substantially justified on the adjudicative officer, which in this instance is the Board. The Board further found that the novel question of law at issue—whether H-2B enforcement matters are subject to a statute of limitations—combined with the available, complete administrative record warranted fully assessing the Administrator's arguments.

Turning to the substance of whether the Administrator's position was substantially justified, the Board adopted the standard for substantial justification embraced by the Supreme Court, in which the tribunal must assess whether the government's position, as a whole, was reasonable in law and fact. The Board found that the government's position, as a whole, was reasonable. In reversing the ALJ, the Board noted that the ALJ failed to separate the Administrator's loss on the merits from the reasonableness of the Administrator's legal position and failed to focus the analysis on legal, rather than procedural, concerns. To support finding the Administrator's position substantially justified, the Board emphasized the novel question of law in dispute, the lack of guidance from other courts, and the detailed analysis required to resolve the merits of the case. The Board ultimately reversed the award of attorneys' fees under the EAJA because the Administrator's position was substantially justified.