(9th Cir. 1991). Both cases involved trade associations seeking awards under the EAJA. In both, the courts chose not to aggregate the net worth and employee numbers to include the corporate members of the associations. If the associations themselves qualified under the statutory ceiling, that was sufficient to bring an action for fees under the EAJA. Texas Food, 81 F.3d at 582; Love, 924 F.2d at 1494.
This court agrees with the analyses of these two circuits. The statute is clear in its description of who qualifies as a "party" capable of bringing an EAJA fee claim: "any . . . association . . . the net worth of which did not exceed 7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed." 28 U.S.C. § 2412 (d)(2)(B) (1994) (emphasis added). The language is unambiguous. The statute imposes a fixed ceiling upon the net worth and employee size of associations. Nowhere does Congress instruct the courts to aggregate the net worth and employment totals of associations who function on behalf of larger corporations.
Congress certainly had the opportunity to include such a requirement, but chose not to.
When interpreting clear and unambiguous statutes, courts are strongly encouraged to "presume that a legislature says in a statute what it means and means in a statute what it says." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). This is a "cardinal canon of statutory construction." Texas Food, 81 F.3d at 582. Section 2412 (d)(2)(B) explicitly states that individual associations are required to satisfy a certain limit on net worth and size. No aggregation requirement is included. Absent ambiguity, this court gives these words their plain and obvious meaning, and therefore finds the NAM has satisfied the limits imposed on them by Congress.
The DOL argues that such an interpretation runs contrary to Congress' intent to limit EAJA award fees to small businesses who could perhaps be fearful of entering into expensive litigation. Allowing trade associations whose members include international corporations to collect under the statute, they posit, frustrates the true objective of the statute: to protect those in financial need of protection. Yet this court stresses again the plain language of the statute. Section 2412 (d)(2)(B) clearly expresses Congress' desire to make associations eligible based upon their own independent qualifications. Texas Food, 81 F.3d at 582. Nowhere is it written that the qualifications of the association's constituent members are to aggregated. Id. Congress was certainly aware that national associations composed of a number of larger corporations could bring claims seeking awards pursuant to the EAJA. They chose not to provide a provision for aggregation, but instead instructed courts to look only to the association itself. This court therefore elects to give Congress' words their plain meaning, and chooses not to implicitly read in that which is not present.
Section 2412 (d)(2) of the EAJA goes on to exempt agricultural cooperatives and other non-profit organizations from the net worth ceiling imposed on other businesses or companies. 28 U.S.C. § 2412 (d)(2)(B) (1994). The DOL argues that this provision's underlying purpose was to protect these cooperatives from the implicit EAJA aggregation requirement that Congress intended to exist. Congress would have no need to exempt these cooperatives from the aggregation of its members in determining net worth, the DOL asserts, had they not desired the EAJA to look beyond the single association to its members net worth.
What the DOL fails to recognize is that "neither the statute nor its legislative history suggest[s] that the special eligibility rule for agricultural cooperatives and non-profits was motivated by concerns about ineligibility resulting from the aggregation of employees and assets." Texas Food, 81 F.3d at 581. The plain language of the EAJA does not mention aggregation. Its purpose, as explicitly mentioned, is to "make associations eligible for an award on the basis of each association's independent qualifications." Id. at 582. In addition, the EAJA does not exempt these same cooperatives from the 500 employee limit specified in the statute. Had Congress truly intended its net worth exemption of the agricultural cooperatives to be an implicit requirement of aggregation, they undoubtedly would have exempted them from the size ceiling as well.
The DOL also cites a conference report to an EAJA amendment that describes a net worth and employee exemption for local labor unions. They posit that there would be no need to include such an exemption had the legislators not intended that the fee applicant should be analyzed in the aggregate. Yet the mere fact that such an exemption exists does not necessarily show such a Congressional intention.
Regardless, when stacked up against the clear and unambiguous language of the statute, this court finds the explicit wording of the statute is controlling. As such, this court looks only to the eligibility requirements of the NAM, not its members or affiliates. Since the NAM meets both the net worth and size limits, it is an eligible party under the EAJA.
III. SUBSTANTIALLY JUSTIFIED
According to the statute, no award can be given if "the court finds that the position of the United States was substantially justified. . ."
28 U.S.C. § 2412 (d)(1)(19). The burden to prove substantial justification is on the government. See Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993); Cinciarelli v. Reagan, 234 U.S. App. D.C. 315, 729 F.2d 801, 806 (D.C. Cir. 1984). Courts have interpreted this to require that the government prove both that its underlying action and its litigation positions were substantially justified. See Lundin v. Mecham, 299 U.S. App. D.C. 7, 980 F.2d 1450, 1459-61 (D.C. Cir. 1992). Substantial justification is present if "there is a good reason for the action, and a good reason for fighting about it." National Law Center on Homelessness and Poverty v. United States Dep't of Veterans Affairs, 799 F. Supp. 148, 156 (D.D.C. 1992). Since this court finds that the DOL was not substantially justified in its underlying action, the question of their litigation position need not be reached.
The DOL clearly promulgated provisions pertaining to the H-1B program without allowing those affected notice or an opportunity to respond. Examples of such actions, clearly prohibited by the Administrative Procedure Act, 5 U.S.C. § 553 (b)(3), were common. See, e.g., Mem. Op. at 30-31 (chastising the DOL for its promulgation of H-1B provisions involving payment for nonproductive time and alterations in status of part-time H-1B workers without providing notice or an opportunity to respond); Mem. Op. at 40 (discussing an H-1B provision related to travel reimbursement and stating " once again, defendant has selected and imposed a standard without providing an opportunity for those subject to the impending standard to comment"); Mem. Op. at 31 (addressing the DOL's failure to post notice at temporary worksites). A government agency that overtly disregards the notice requirements of the APA cannot credibly argue that their underlying actions were substantially justified. See United Church Bd. for World Ministries v. SEC, 649 F. Supp. 492, 498 (D.D.C. 1986). The DOL has done this, and therefore cannot plausibly claim substantial justification in its actions.
The DOL position is further weakened by the fact that, prior to the initiation of the lawsuit, the NAM and several other parties notified the DOL via letter that portions of the H-1B regulations did not comply with the notice and comment requirements mandated by law. The DOL chose not to respond. The DOL also was asked by assorted employers and trade associations to suspend a portion of their H-1B regulations so as to allow parties an occasion to respond. The DOL did not yield to these requests. Thus, prior to the litigation, the DOL was on notice that various groups and organizations found their regulations to be in violation of the APA. They preferred not to address these concerns, concerns that later proved to be legally correct. The DOL's failure to confront these legitimate considerations made prior to the initiation of the suit is further evidence of a lack of substantial justification for their underlying acts. See Lundin, 980 F.2d at 1460-61.
The NAM is a qualified prevailing party under the clear language of the EAJA. There exists no substantial justification for the underlying actions of the DOL.
As such, the NAM is entitled to an award of fees pursuant to the EAJA. This court now turns its attention to the amount of fees the NAM is authorized to receive.
IV. THE FEE AWARD
All told, the NAM seeks compensation for 278.8 hours expended by attorneys in this action, and 8.4 hours of work performed by paralegals.
The breakdown of the attorneys' hours is as follows:
Hamilton Loeb (D.C. office): 22.65 hrs.
Crystal Williams (Atlanta office): 13.5 hrs.
Behnam Dayanim (D.C. office): 242.65 hrs.
Michael Butler (paralegal): 7.4 hrs.
Todd R. Troutner (paralegal): 1.0 hr.
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