Wash. Alliance of Tech. Workers v. U.S. Dep't of Homeland Sec., 16-5235

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 857 F.3d 907
• Docket Number: No. 16-5235,16-5235
• Parties: WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Appellant v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee
• Decision Date: 26 May 2017

857 F.3d 907

WASHINGTON ALLIANCE OF TECHNOLOGY WORKERS, Appellant
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee

No. 16-5235

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2017
Decided May 26, 2017

John M. Miano argued the cause for appellant. With him on the briefs were Dale Wilcox and Michael Hethmon.

Joshua S. Press, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Glenn M. Girdharry, Assistant Director.

Before: Henderson and Kavanaugh, Circuit Judges, and Sentelle, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Kavanaugh.

Sentelle, Senior Circuit Judge:

Appellant Washington Alliance of Technology Workers ("Washtech") received a fee award under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, for proceedings in which it partially succeeded in challenging a Department of Homeland Security practice allowing student visa holders to remain in the United States after completion of their formal education. Washtech appeals from the award, arguing that the district court erred in compensating it only for legal services time devoted to the one claim upon which it succeeded, as opposed to the entire litigation, and that the court abused its discretion in ordering further reductions from the amount sought. Because we conclude that the district court did not abuse its discretion, we affirm the decision of the district court.

I. BACKGROUND

In 2002, when Congress created the United States Department of Homeland Security ("DHS"), it transferred to the Secretary of Homeland Security the authority and responsibility theretofore residing in the Attorney General for the administration and enforcement of the Immigration and Naturalization Act, 8 U.S.C. § 1101, et seq. (the "Act"). The statute authorizes various visas allowing of the admission to the United States of specified categories of aliens for specified purposes. The "F-1 student visa" authorizes admission of "bona fide student[s] qualified to pursue a full course of study" and who seek entry to the United States "temporarily and solely for the purpose of pursuing" studies as specified in the Act. Id. § 1101(a)(15)(F)(i). DHS and its predecessor agencies have long permitted aliens with student visa status to remain in the United States after graduation to participate in the workforce as part of an Optional Practical Training program ("OPT"). See, e.g. , Pre-Completion Interval Training; F-1 Student Work Authorization, 57 Fed. Reg. 31,954 (July 20, 1992) (codified at 8 C.F.R. § 214.2(f)(10)(ii) ) ("1992 OPT Rule"). Between 1992 and 2007, the 1992 OPT Rule authorized one year of employment after graduation to alien guestworkers. 8 C.F.R. § 214.2(f)(11) (2007). DHS subsequently extended the OPT period by 17 months for students with a science, technology, engineering, or mathematics degree. Extending Period of Optional Practical Training, 73 Fed. Reg. 18,944 (Apr. 8, 2008) (codified at 8 C.F.R. pts. 214, 274a) ("2008 OPT Rule"). Washtech, a labor union that represents American workers in technology fields, filed a complaint in federal district court, alleging three counts challenging the OPT program as a whole, arguing that it was unlawful for DHS to allow "students" to remain in the United States and work after they had graduated. These claims were dismissed early in the case after the district court found that Washtech lacked standing to pursue them. See Wash. All. of Tech. Workers v. Dep't of Homeland Sec. , 74 F.Supp.3d 247, 252 (D.D.C. 2014). Remaining

857 F.3d 910

counts related to the 2008 OPT Rule extending the maximum OPT period, challenging the 2008 OPT Rule on procedural and substantive grounds. The district court rejected Washtech's claim that DHS exceeded its statutory authority by issuing the 2008 OPT Rule but upheld Washtech's claim that DHS had waived notice and comment without good cause. Wash. All. of Tech. Workers v. Dep't of Homeland Sec. , 156 F.Supp.3d 123, 140-45, 145-47 (D.D.C. 2015) (" Merits Opinion"). The court vacated the rule but stayed vacatur for six months and directed DHS to "submit the 2008 [OPT] Rule for proper notice and comment." Id. at 149. Washtech appealed.

During the pendency of the appeal, DHS moved the district court to alter its judgment so as to extend the stay of vacatur of the 2008 OPT Rule, a motion that Washtech opposed. The district court extended the stay of vacatur for approximately three months. Washtech subsequently appealed that decision.

On March 11, 2016, DHS promulgated a new rule to replace the 2008 OPT Rule. See Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students, 81 Fed. Reg. 13,040 (Mar. 11, 2016) (codified at 8 C.F.R. pts. 214, 274a) ("2016 OPT Rule"). On May 13, 2016, this Court held that the issues raised in the appeal before it were therefore moot. Wash. All. of Tech. Workers v. Dep't of Homeland Sec. , 650 Fed.Appx. 13 (D.C. Cir. May 13, 2016).

Washtech filed a motion for fees under the EAJA. The district court held that Washtech was a prevailing party under the EAJA and awarded fees. Wash. All. of Tech. Workers v. Dep't of Homeland Sec. , 202 F.Supp.3d 20, 24-26 (D.D.C. 2016). However, the court awarded a significantly lower fee than Washtech requested. Id. at 29. The court declined to award fees for any activities undertaken after its Merits Opinion because "plaintiff achieved no success in this litigation" after that date. Id. at 28-29. And because it found Washtech's victory "marginal," the court awarded Washtech 15% of the remaining requested fees and expenses. Id. at 29. Washtech filed the present appeal.

II. DISCUSSION

A. Standard of Review

The EAJA provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

Under the EAJA, district courts may award "reasonable" fees and must disallow claims for "excessive, redundant, or otherwise unnecessary" charges. Hensley v. Eckerhart , 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).¹ "It remains for the district court to determine what fee is ‘reasonable.’ " Id. at 433, 103 S.Ct. 1933. As we have stated,...