David Little et al vs Hilda L. Solis, et al

Filing 52

ORDER DENYING 42 Motion for Fees and Costs. Signed by Judge Howard D. McKibben on 1/27/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DAVID and BONNIE LITTLE, et al., )
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Plaintiffs,
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vs.
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HILDA L. SOLIS, et al.,
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Defendants.
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_________________________________ )

3:13-cv-00046-HDM-WGC
ORDER

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Before the court is plaintiff Western Range Association’s
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(“WRA”) Motion for Fees and Costs Pursuant to the Equal Access to
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Justice Act, 28 U.S.C. § 2412(d)(1)(A) (#42).

The defendants, the

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United States Secretary of Labor, the United States Assistant
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Secretary of Labor, and the Acting Deputy Administrator of the Wage
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and Hour Division of the United States Department of Labor, have
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opposed (#48).

The plaintiff has replied (#51).

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Factual and Procedural Background
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Plaintiffs are “individual sheep producers and organizers of
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sheep producers.”

(P. Mot. 2.)

On January 8, 2013, the defendants

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issued a Federal Register Notice that raised the adverse effect
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wage rate (“AEWR”) of sheepherders substantially in several Western
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states.

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sheepherders in Nevada would have been raised by 78%, and the rates

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in Arizona would have been raised by 90%.

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(Id.)

For example, the federally mandated wage rates for

(Id.)

Plaintiffs filed a complaint on January 29, 2013 claiming that

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the wage rates were arbitrary and capricious in violation of the

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Administrative Procedures Act.

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injunctive relief from the court.

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Plaintiffs’ request for a temporary restraining order, the parties

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entered into a stipulation that was “incorporated herein by

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Plaintiffs sought emergency
Following a hearing regarding

reference” into a court order on February 4, 2013.
Under the terms of the stipulation, the plaintiffs withdrew

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their motion for a temporary restraining order and preliminary

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injunction without prejudice, while the defendants agreed not to

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implement or enforce the wage rates with respect to sheepherding

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announced in the January 8 Federal Register in Nevada, Arizona,

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Oregon, and Washington “until and unless the Court enters judgment

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on the merits in favor of the validity of the Notice.”

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Doc. #21.)

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motions timeline, and that the defendants would file the

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administrative record on or before February 22, 2013.

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(Order,

The parties also agreed to an expedited dispositive

Defendants did file the administrative record on February 22,

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2013, along with an unsworn declaration providing the Department of

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Labor’s (“DOL”)’s rationale for promulgating the January 8 Federal

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Register Notice.

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new Federal Register Notice rescinding the January 8 Notice and

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setting the AEWRs back prior to the levels before the January 8

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Notice.

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Workforce Agencies (“SWAs”) were currently collecting new wage data

Then, on March 28, 2013, the DOL promulgated a

The new Notice also stated that the relevant State

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for the occupations and geographic locations in question, and that

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that the DOL would eventually issue new AEWRs based on the new

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data.

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(D. Resp. 4.)
On April 19, 2013, the plaintiffs moved for summary judgment.

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On the same day, the defendants filed a “Motion to Dismiss for Lack

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of Subject Matter Jurisdiction or Failure to Exhaust Administrative

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Remedies.”

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the “voluntary cessation” exception to mootness did not apply

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because “[t]he Ninth Circuit has held that an agency’s adoption of

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a new rule or policy that resolves the plaintiff’s legal challenge

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is enough to moot the case.”

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argued that the March 28 Notice completely nullified the January 8

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Notice and constituted an adoption of a new rule or policy that

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resolved the plaintiffs’ legal challenge.

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Register Notice demonstrates that DOL did not voluntarily cease

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applying the January 8 AEWR.

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rate determination setting Plaintiffs obligations under the

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statute, which rescinded the January 8 rates.

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of DOL’s new, final rule moots this case.”).)

The defendants argued that the case was moot, and that

(Def. Mot. Dismiss 13.)

Defendants

(Id. 13-14 (“The Federal

Rather, it issued a new, final wage

Thus, the issuance

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On May 10, 2013, the plaintiffs then filed a document titled

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“Plaintiffs’ Suggestion of Mootness,” in which they “respectfully

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submit[ted] that this case ha[d] been mooted by the Department of

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Labor’s (“DOL”) involuntary cessation of its illegal activity.”

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(P. Suggestion of Mootness 1.)

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file another lawsuit should DOL resume its unlawful conduct.”

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2.)

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Plaintiffs “reserve[d] the right to
(Id.

On May 16, 2013, the court issued an order granting “the
defendants’ unopposed motion to dismiss . . . this action as moot.”
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(ECF #41.)

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costs, and that motion is now before the court.

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Standard

The plaintiffs then filed for attorneys’ fees and

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Under the Equal Access to Justice Act (“EAJA”),

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[e]xcept 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.

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28 U.S.C. § 2412(d)(1)(A).

A “party” that may recover under the

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EAJA is defined to include
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any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or
organization, 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.

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Id. at § 2412(d)(2)(B)(ii).

Thus, to prevail on an EAJA fees and

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costs claim, a party must meet the EAJA definition of a “party” and
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must have “prevail[ed],” while the position of the United States
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must be found not to have been “substantially justified,” and there
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must be “no special circumstances mak[ing] an award unjust.”

Id.;

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Id. at § (d)(1)(A).
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I.
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Is WRA a “Party” Eligible to Recover Attorneys’ Fees Under the
EAJA?
WRA operates as a member association.

WRA applies for H-2A

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visas for foreign sheepherders, and then facilitates their

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employment at its member organizations, which are sheep ranches.

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The Immigration and Nationality Act provides for the H-2A program,

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which allows foreign workers to obtain visas to perform

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agricultural labor or services of a temporary or seasonal nature in
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the United States.

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only be granted when there are “not sufficient workers . . . to

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perform the labor or services involved” and “the employment of the

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[foreign workers] . . . will not adversely affect the wages and

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working conditions of workers in the United States similarly

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employed.”

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See 8 U.S.C. § 1101(a)(15)(H).

H-2A visas can

8 U.S.C. § 1188(a)(1).

Ninth Circuit case law is quite clear that when determining if

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a member association is eligible for attorneys’ fees under the

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EAJA, whether the individual member organizations themselves meet

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the requirements of being a party eligible to recover under the

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EAJA is not relevant.

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Cir. 1991).

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the members are parties in interest only if they are liable for the

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attorneys’ fees.

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F.2d 1077, 1082 (D.C. Cir. 1985)).

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bears the cost of the litigation (see P. Mot. 5), the member

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association is the party in interest and the size and net worth of

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the individual member organizations need not be considered.

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Love, 924 F.2d at 1494.

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See Love v. Reilly, 924 F.2d 1492, 1494 (9th

The court must determine the “party in interest,” and

See id. (citing Unification Church v. I.N.S., 762
If only the member association

See

Here, WRA admits it is responsible for all of the attorneys’

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fees in this litigation and that it is the real party in interest.

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(P. Mot. 5.)

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under the EAJA.

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ranch organizations are not relevant to the inquiry of whether WRA

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is an eligible “party” under the EAJA.

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WRA asserts in its motion that its members’ size and net worth are

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not relevant, and the DOL does not contest this particular point.

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(See P. Mot. 5; D. Opp’n 5-11.)

It must therefore show that it qualifies as a party
Moreover, the size and net worth of the member

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Love, 924 F.2d at 1494.

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a.

Was WRA’s net worth less than $7,000,000 at the time this
lawsuit was filed?

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WRA asserts that it meets the first requirement of 28 U.S.C. §
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2412(d)(2)(B)(ii) by having a net worth of “far below the
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$7,000,000 maximum at the time of filing the complaint and all
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times since then.”

(P. Mot. 4.)

The only support for this is a

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declaration from Dennis Richins, the Executive Director of WRA
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since 2001.

(Richins Dec. ¶ 3.)

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The defendants argue that WRA’s “unsupported statements are
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not sufficient to meet WRA’s burden under EAJA.”

(Def. Opp’n 5.)

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In support of this argument, the defendants cite two cases.

The

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first is a Ninth Circuit case, Thomas v. Peterson.

In Thomas, the

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court found that a plaintiff’s affidavit was not sufficient to
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establish that it was an organization eligible for fees under the
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EAJA.

Thomas v. Peterson, 841 F.2d 332, 337 (9th Cir. 1998).

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However, while the court did criticize the sparse nature of the
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affidavit, the fault the court found seems to be that the affidavit
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only addressed the net worth of the organization and did not
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address the organization’s size.

Id. (“The government correctly

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notes that the affidavit of the assistant director of the Idaho
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Conservation League, the plaintiff that filed the fee application,
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shows only that the League is a ‘non-profit, public interest
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corporation’ which is worth less than $1 million, but not that the
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League employs fewer than 500 employees.

We agree that the

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affidavit is not sufficient to establish that the League is
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eligible for fees.”

(internal citations omitted).)

Thus, Thomas

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does not actually stand for the proposition that an affidavit alone
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is not enough to show EAJA party eligibility; rather, it holds that
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both elements of EAJA party qualification – net worth and the

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number of employees – must be established by the plaintiff by

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competent evidence.

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The other case cited by the defendants is Impresa Construzioni

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Geom. Domenico Garufi v. United States.

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that the plaintiffs in an EAJA action must show significant

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“documentary evidence” regarding both the size and the net worth of

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their organization.

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the size of the organization, the Impresa court concluded that a

The Impresa court did hold

89 Fed. Cl. 449, 451 (2009).

With regard to

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“bare statement” was not enough and that “substantiating

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documentation” was necessary.

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“affidavits which are ‘self-serving’ and ‘unsupported,’ including

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those that contain unaudited balance sheets, are not sufficient to

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establish net worth.”

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Id.

Additionally, Impresa held that

Id.

Impresa is a case from the United States Court of Federal

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Claims.

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be any correlating Ninth Circuit authority.

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While case law from the Court of Federal Claims may be instructive,

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it is not binding on this court.

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persuaded that WRA’s affidavit is self serving and unsupported and

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therefore insufficient to establish that WRA meets the first

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requirement under the EAJA.

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court to supplement the record on this issue if the court finds its

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documentation insufficient (see id.), the court does not need to

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address the issue further because WRA does not meet the second

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element of the party qualification under the EAJA, discussed below.

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b.

As WRA points out in its reply, there does not appear to
(See P. Reply 4 n.2.)

Nevertheless the court is

While the plaintiff seeks leave of

Did WRA employ no more than 500 employees at the time this
lawsuit was filed?

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WRA asserts that it has only 8 employees, who work in its Salt

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Lake City Office.

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however, that

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WRA explains,

for the purposes of submitting H-2A applications under DOL’S
“special procedures: for sheepherders, WRA is referred to as a
“joint employer” of H-2A sheepherders with the individual
employer members. Richins Dec. ¶ 4. In the “special
procedures,” DOL specifically recognizes the “specific tasks
and responsibilities” that WRA “performs and assumes on behalf
of the individual rancher members. Id. DOL concludes that
“The WRA operates as a joint employer solely for H-2A program
purposes.”1 Id.”

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(P. Mot. 4; Richins Dec. ¶ 5.)

(P. Mot. 4.)

WRA’s position is that “[t]he sheepherders are

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employed by the individual sheep producer members; WRA’s role is

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simply an accommodation under the H-2A special procedures to permit

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an H-2A visa holder sheepherder to change from one WRA member to

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another as weather, lambing seasons, and other factors require.”

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(Id.)

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procedures” means it is identified as a “joint employer” of more

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than 800 H-2A workers at any given time.

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claims that its “joint employer solely for H-2A program purposes”

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status does not render it ineligible for EAJA recovery, and that it

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truly only has 8 employees.

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WRA explains that compliance with the DOL’s “special

(Id.)

However, WRA

(Id.)

In response the defendant asserts that WRA’s status as a joint

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employer of more than 800 H-2A workers means that it is does not

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meet the definition of a “party” eligible for recovery under the

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EAJA.

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“facilitation” and argue that the WRA’s activities with regard to

The defendants deny that WRA’s role is simply one of

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The DOL’s language that “WRA operates as a joint employer solely for H-2A
program purposes” comes from page 8 of a document titled “Special Procedures
for Labor Certification Process for Sheepherders and Goatherders Under the
H-2A Program,” issued by DOL as part of Field Memorandum FM 24-01, published
on August 1, 2001.
Id.
The document is attached as Exhibit A to the
Richins Declaration.

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the foreign sheepherders do constitute those of an employer.

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Defendant point out that “[a]ssociations like WRA that file

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master applications with DOL for H-2A workers on behalf of

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employer-associated members necessarily assume the status of a

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joint employer by virtue of their control over the H-2A recruiting

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and employment process, see 20 C.F.R. § 655.131(b), which includes

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joint employer association filings for H-2A sheepherding

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occupations, see 76 Fed. Reg. at 47,260-61.”

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The defendant further notes that “[t]he regulations define an

(Def. Opp’n 7-8.)

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employer as an ‘association’ having an employer relationship with

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H-2A workers, as evidenced by ‘the ability to hire, pay, fire,

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supervise or otherwise control the work of the employee.’” (Def.

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Opp’n 8 n.3 (quoting 20 C.F.R. § 655.103(b))).

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“joint employment” exists under the regulations “[w]here two or

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more employers each have sufficient definitional indicia of being

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an employer to be considered the employer of a worker . . . Each

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employer in a joint employment relationship to a worker is

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considered a joint employer of that worker.”

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655.103(b).

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i.

Additionally,

20 C.F.R. §

Ruiz and the Ninth Circuit “Economic Realities Test” as
articulated in Bonnette

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The defendant details the many activities related to the H-2A
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workers that the plaintiff undertakes beyond simply “facilitation,”
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heavily citing to a recent and as-of-yet unpublished2 Eastern
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District of Washington case, Ruiz v. Fernandez.

(See Def. Opp’n 7-

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10.)

In Ruiz, Chilean sheepherders who came to the U.S. under the

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H-2A program sued both WRA and an individual member ranch for
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As an unpublished decision from a different federal district, Ruiz
is persuasive authority but is not binding on this court.

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violations of Washington State wage law, breach of employment

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contracts, and violations of the Fair Labor Standards Act (FLSA),

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among other claims.

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2467722, at *2 (E.D. Wash. June 7, 2013).

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Circuit “economic realities test,” and determining that the

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economic realities factors used in Bonnette v. Cal. Health &

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Welfare Agency, 704 F.2d 1465 (9th Cir. 1983), as opposed to those

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applied in Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997), were

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the most relevant to its analysis, the Ruiz court found that WRA

Ruiz v. Fernandez, No. CV-11-3088-RMP, 2013 WL
Applying the Ninth

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was indeed a joint employer under FLSA.

See Ruiz, 2013 WL 2467722,

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at *7-8, *14; see also Def. Opp’n 9-10.

The Ninth Circuit in

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Bonnette analyzed whether state and county welfare agencies were

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joint employees of “chore workers” who provided in-home domestic

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services to disabled persons, a fact pattern the Ruiz court found

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quite similar to the question of whether the H-2A sheepherders are

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joint employees of WRA.

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See Ruiz, 2013 WL 2467722, at *8.

The four factors used in Bonnette to analyze whether or not

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WRA was a FLSA employer, were “whether the alleged employer (1) had

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the power to hire and fire the employees, (2) supervised and

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controlled employee work schedules or conditions of employment, (3)

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determined the rate and method of payment, and (4) maintained

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employment records.”

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these factors and determining that each of them weighed in favor of

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WRA being a joint employer under FLSA, the Ruiz court went into

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some detail about the power and authority WRA exercises over the H-

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2A sheepherders.

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accuracy of these findings as they are applicable to this

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litigation.

Bonnette, 704 F.2d at 1470.

In exploring

The WRA does not substantially dispute the

(See P. Reply 5-6.)
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With regard to “the power to hire and fire the employees,” the

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Ruiz court found that WRA “plays an integral role in initiating H-

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2A sheepherders’ employment with its member ranches.”

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WL 2467722, at *8.

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foreign countries to recruit workers.

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coordinators work only for WRA, not its member ranches.

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recruitment coordinators provide potential H-2A employees with a

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document titled “Pre-Employment Notice of Rights and Obligations,”

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which the sheepherders must sign before they can come to the U.S.

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Ruiz, 2013

WRA has “recruitment coordinators” who go to
Id.

These recruitment
Id.

The

Id. at *9.

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“The Pre-Employment Notice generally describes the necessary
qualifications for the job, the nature of the work that the
sheepherder will perform, the wage rate that they will be
paid, the transportation that will be provided to and from the
sheepherder’s home country, and the tools, housing, food, and
insurance benefits that will be provided. The Pre-Employment
notice additionally informs the sheepherder that they are
guaranteed to ‘3/4 time employment’; that they are subject to
transfer among member ranches; that the sheepherder is to
contact Western Range if a member ranch no longer has need of
them, at which time they will be transferred to another ranch;
and that the sheepherder shall contact Western Range
immediately if the worker has ‘any problems’ or becomes
unemployed.”

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Id.

The Notice does state in it that the sheepherder “[is] NOT

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employed by Western Range Association but by a MEMBER of Western
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Range Association.”

Id. at *9 n.2.

However, the economic reality

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of the joint employment relationship, not the disclaimer, is
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controlling on the issue before the court.

See id.

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After a sheepherder signs the WRA Pre-Employment Notice and
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obtains the necessary visa, WRA assigns the sheepherder to a member
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ranch of its choosing, arranges for the sheepherder’s
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transportation to a member ranch, and pays up front for the
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transportation (though the member ranches later reimburse WRA for
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travel expenses).

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be considered a joint employer of the workers; only an employer of

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prospective H-2A workers can petition for issuance of H-2A visas.

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Id. at *9; 20 C.F.R. § 655.130-131.

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visas, WRA holds itself out as the workers’ employer to the

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Department of Homeland Security.

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Id. at *9.

It is legally necessary for WRA to

In applying for the H-2A

Id. at *10.

Once a sheepherder arrives in the U.S., the sheepherder and

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the member ranch are required to sign WRA’s “Sheepherder Employment

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Agreement.”

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The Agreement allows Western Range to terminate the employment
of a worker who commits a willful breach of contract.
Moreover, the undisputed evidence establishes that the
individual member ranches cannot terminate a sheepherder’s
employment with Western Range and may only refer the
sheepherder to Western Range for reassignment to another ranch
. . . When Western Range terminates a sheepherder, it offers
the sheepherder prepaid return transportation to their home
country.

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Ruiz, 2013 WL 2467722, at *9.

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in firing, claiming that while it can fire employees, it does so

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only in “‘very limited circumstances’” and “‘has not done so in

18

recent memory.’”

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which WRA exercises its right to fire is not necessary; the fact

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that WRA has the power to fire is what is relevant to the economic

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realities test.

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Id.

WRA attempted to minimize its role

The Ruiz court found that the frequency with

Id.

Based on all of this information, this court, as did the Ruiz

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court, finds that WRA does have the power to hire and fire

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employees.

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Sheepherder Employment Agreement, it also has the power to hire in

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that it is the “gatekeeper” of the sheepherders’ employment in the

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U.S. and it “sets all key terms of . . . employment through the

While WRA clearly has the power to fire based on the

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Pre-Employment Notice that workers are required to sign before

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being transported to the member ranch in the U.S.”

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Id. at *10.

On the issue of supervision and control of the conditions of

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the sheepherders, it is clear that while WRA does not supervise or

5

control the “day to day” activities of its H-2A workers, it still,

6

like the agencies in Bonnette, “exercised ‘considerable control

7

over the structure and conditions of employment.’”

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Bonnette, 704 F.2d at 1470).

9

Employment Notice outlines the general terms and conditions of

Id. (citing

This is so because the WRA Pre-

10

employment with member ranches.

11

Additionally, while WRA is not nominally a party to the Sheepherder

12

Employment Agreement, it requires H-2A workers and member ranches

13

to enter into the agreement once the workers arrive in the U.S.

14

Furthermore,

15
16
17
18

Ruiz, 2013 WL 2467722, at *10.

the individual member ranch is identified expressly as a
member of the Western Range Association [in the agreement].
Western Range provides the standard form agreement and does
not allow the member ranches or workers to deviate from its
terms. The agreement sets the terms of employment, the
employee’s duties, compensation, and other conditions of the
sheepherder’s employment with the member ranch.

19

Id. at *11.

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membership of ranchers who violate their conditions.

21

Moreover, WRA “serves as a joint guarantor of the employment

22

contract between member ranches and sheepherders.”

23

therefore clear that WRA exercises broad control over the general

24

conditions of employment of the H-2A sheepherders.

25

WRA has the power to suspend or terminate the
Id.

Id.

It is

Id.

Further, WRA has significant control of the rate and method of

26

pay even though the member ranches are the ones who – in most

27

circumstances – pay the workers.

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joint employer under the H-2A program to ensure that the proper

Id. at *12.

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WRA is required as a

1

wage rate is followed.

2

the responsibility of ensuring that its member ranches do not pay

3

sheepherders less than required by law.

4

*12.

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compel that ranch to pay it.

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sheepherder’s wages if a member ranch does not pay them, or if a

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gap between a sheepherder’s employment at different ranches means

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that the sheepherder would not otherwise be paid for an extended

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period of time.

Id. (citing 20 C.F.R. § 655.135).

WRA has

Ruiz, 2013 WL 2467722, at

If a member ranch fails to pay the correct rate, WRA may

Id.

Id.

In fact, WRA actually pays a

WRA ensures that sheepherders are still paid

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wages in the event that a member ranch files for bankruptcy.

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Additionally, WRA requires that member ranches provide worker’s

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compensation insurance to the sheepherders as required by the H-2A

13

rules.

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sheepherders pursuant to WRA’s group insurance plan.

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these findings are disputed by WRA.

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Id.

Id.

Finally, WRA provides health and life insurance to
Id.

None of

(See P. Reply 5-6.)

With regard to the final Bonnette economic realities factor,

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maintenance of employment records, WRA maintains employment records

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for all sheepherders.

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employment contracts, labor certifications, travel information,

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records of transfers between member ranches, and records of any

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complaints made by or concerning the sheepherders.

22

Id.

The files WRA maintains contain

Id.

Therefore, this court concludes that WRA is a joint employer

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under FLSA.

24

an employer is a joint employer under FLSA is not which employer

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the worker is more dependent on, but rather the economic reality of

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each individual worker-employee relationship.

27

(citing Torres-Lopez, 111 F.3d at 640).

28

the H-2A regulations discussed above, which state that joint

Id. at *14.

The critical inquiry into whether or not

14

Id. at *12-13

This is consistent with

1

employment exists simply “[w]here two or more employers each have

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sufficient definitional indicia of being an employer to be

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considered the employer of a worker.”

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joint employers need not have the same amount or degree of indicia

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of an employer; they merely must each have “sufficient” indicia.

6

Id.

7

applied in Ruiz is also consistent with the H-2A regulations’

8

definition of an “employer” as “a[n] . . . organization that . . .

9

[h]as an employer relationship (such as the ability to hire, pay,

20 C.F.R. § 655.103(b).

The

The economic realities test as articulated in Bonnette and

10

fire, supervise or otherwise control the work of employee) with

11

respect to an H-2A worker.”

20 C.F.R. § 655.103(b).

12

The undisputed facts discussed in Ruiz and presented by the

13

defendants support the conclusion that plaintiff WRA is indeed a

14

joint employer of the H-2A sheepherders and therefore is not

15

eligible to recover under the EAJA.

16

dispute the factual findings of the Ruiz Court, WRA does argue that

17

the Ruiz court “only decided that there was a genuine issue of

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material fact on the record before it.”

19

while the Ruiz court did determine that there were genuine issues

20

of material fact for trial with regard to several of the Ruiz

21

plaintiffs’ claims, the court explicitly granted summary judgment

22

to the plaintiffs “insofar as Western Range was a joint employer of

23

Plaintiffs under FLSA.”

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court did make a legal finding based on the facts in evidence that

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WRA is a joint employer of the H-2A sheepherders under FLSA, and

26

WRA has not disputed the facts leading to that conclusion.

27

Reply 5-6.

28

ii. Unification Church

While WRA does not seriously

(P. Reply. 6.)

Ruiz, 2013 WL 2467722, at *22.

15

However,

Thus the

Id.; P.

1

Furthermore, Unification Church, which plaintiff WRA cites to

2

as articulating a “test” that demonstrates the H-2A sheepherders

3

are not “employees” of WRA under the EAJA, in fact supports a

4

finding that the H-2A sheepherders are employees of WRA under the

5

EAJA.

6

D.C. Circuit found that the Unification Church, the plaintiff in

7

that action, was an employer of its members under the EAJA and

8

therefore not eligible to recover fees under that statute.3

9

Unification Church, 762 F.2d at 1092.

See P. Reply 4-5; Unification Church, 762 F.2d at 1092.

The

See

Without actually stating a

10

test to be used in further analysis, the Unification Church court

11

noted that the relationship between the church and its members

12

“resembles a typical employer-employee relationship in all respects

13

save for compensation in kind rather than specie.”

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relationship between WRA and the H-2A sheepherders may be different

15

from many employer-employee relationships, it is typical of joint

16

employer-employee relationship.

17

20 C.F.R. § 655.103(b).

Id.

While the

See Ruiz, 2013 WL 2467722, at *9;

18

Additionally, Unification Church supports the conclusion that

19

an entity’s status as an employer to workers under other statutory

20

schemes, while not dispositive, is relevant to the inquiry into

21

whether that entity is an employer of the same workers under the

22

EAJA.

23

district court had been “hasty” in concluding that the Church could

24

not “seek admission of workers under the immigration statutes and

25

then attempt to classify them as non-employees under the Equal

26
27
28

Unification Church, 762 F.2d at 1092 (noting that the

3

Notably, in making this finding, the court cited to a U.S. Supreme
Court case in which “workers at [a] commercial business owned by [a]
religious group [were found to be] ‘employees’ under [the] Fair Labor
Standards Act.” Unification Church, 762 F.2d at 1092 (citing Tony & Susan
Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985).

16

1

Access to Justice Act,” but that other evidence in combination with

2

these “purely logical grounds” was sufficient to conclude that the

3

Church was an employer of its members and therefore not an eligible

4

party under the EAJA).

5

employer of the sheepherders under the H-2A “special procedures” is

6

relevant evidence in support of a finding that WRA is an employer

7

of those same sheepherders under the EAJA.

8

Conclusion

9

Thus, WRA’s classification as a joint

In the Ninth Circuit, “[t]he party seeking fees [under the

10

EAJA] has the burden of establishing its eligibility.”

11

F.2d at 1494 (citing Thomas v. Peterson, 841 F.2d 332, 337 (9th

12

Cir. 1988).

13

proof, the undisputed facts in the case at hand support this

14

court’s conclusion that plaintiff WRA is an employer of the H-2A

15

sheepherders and as such had more than 500 employees at the time of

16

filing the instant action.

17

to recover fees under the EAJA.4

18

2412(d)(2)(B)(ii).

Love, 924

However, regardless of which party bears the burden of

WRA is therefore not a “party” eligible
See 28 U.S.C. §

19

Having so concluded, it is unnecessary for the court to decide

20

whether plaintiff WRA “prevail[ed]” in this litigation, whether the

21

position of the United States in this matter was “substantially

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23
24
25
26
27
28

4

The court believes this finding is consistent with the “[t]he
central objective of the EAJA[, which is] to encourage relatively
impecunious private parties to challenge unreasonable or oppressive
governmental behavior by relieving such parties of the fear of incurring
large litigation expenses.” Spencer v. N.L.R.B., 712 F.2d 539 (D.C. Cir.
1983); P. Mot. 5. With its large employee roster, the WRA is not the sort
of “relatively impecunious private party” the EAJA was meant to assist in
pursuing meritorious litigation that would otherwise be impossible due to
cost. “[T]he intent of the EAJA is to assist individuals or small entities,
not to subsidize large entities that are better able to afford legal
services.” Owner-Operator Independent Drivers Ass’n, Inc. v. Federal Motor
Carrier Safety Admin., 675 F.3d 1036, 1040 (7th Cir. 2012) (citing
Unification Church, 762 F.2d at 1081); D. Opp’n 11.

17

1

justified,” or whether there are any “special circumstances [that]

2

make an award unjust.”

3

unnecessary for the court to make any inquiry into the

4

reasonableness of the fees and costs requested.

5

See id at § (d)(1)(A).

It is also

On the basis of the foregoing, plaintiff WRA’s Motion for Fees

6

and Costs Pursuant to the Equal Access to Justice Act (#42) is

7

DENIED.

8

IT IS SO ORDERED.

9

DATED: This 27th day of January, 2014.

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____________________________
UNITED STATES DISTRICT JUDGE

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