RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0112p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

R. ALEXANDER ACOSTA, Secretary of Labor,

Plaintiff-Appellee,

v.

CATHEDRAL BUFFET, INC.; ERNEST ANGLEY,

Defendants-Appellants.

┐

│

│

│

│

│

│

│

│

┘

No. 17-3427

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:15-cv-01577—Benita Y. Pearson, District Judge.

Decided and Filed: May 24, 2018*

Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON MOTIONS: Todd A. Mazzola, RODERICK LINTON BELFANCE, LLP, Akron, Ohio, for 

Appellants. IN RESPONSE: Mary E. McDonald, UNITED STATES DEPARTMENT OF 

LABOR, Washington, D.C., for Appellee.

 

*The Panel originally ruled on the instant motions in an order filed on May 24, 2018. The court has now 

designated the ruling for publication.

>
No. 17-3427 Acosta v. Cathedral Buffet, et al. Page 2

_________________

ORDER

_________________

This matter is before the court upon Defendants-Appellants Cathedral Buffet, Inc., and 

Reverend Ernest Angley’s motion for leave to file a petition for costs and attorney’s fees under 

the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.1

On April 16, we reversed the district court’s judgment against Cathedral Buffet and 

Angley, president of the Buffet and pastor of the Grace Cathedral church, which found them 

liable under the Fair Labor Standards Act (FSLA) for back wages owed to church member 

volunteers who worked at the restaurant. See Acosta v. Cathedral Buffet, Inc., 887 F.3d 761 (6th 

Cir. 2018). We held that the volunteers were not FLSA employees because they did not work in 

expectation of compensation, as required by Supreme Court precedent. Id. at 766-67 (citing 

Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 302 (1985); Walling v. Portland 

Terminal Co., 330 U.S. 148, 152 (1947)).

Cathedral Buffet now seeks to recover its costs and attorney’s fees for the entire litigation 

from the Department of Labor (DOL). The EAJA provides, in pertinent part, that in an action 

brought by or against the United States, “a court shall award to a prevailing party other than the 

United States fees and other expenses . . . incurred by that party . . . 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). To recover costs and fees under the EAJA, the 

applicant must satisfy four criteria: “(1) that the fee applicant be a prevailing party; (2) that the 

government’s position not be substantially justified; (3) that no special circumstances make an 

award unjust; and (4) that the fee applicant file the requisite application within thirty days of 

final judgment.” Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th Cir. 2007) (citation 

omitted).

 

1Before the court could rule upon Cathedral Buffet’s motion for leave, it also filed its EAJA petition and 

supporting materials.
No. 17-3427 Acosta v. Cathedral Buffet, et al. Page 3

Ultimately, Cathedral Buffet intends to argue that the DOL’s position throughout this 

litigation—that the church member volunteers were FLSA employees—was not substantially 

justified. The preliminary question before the court is whether Cathedral Buffet’s EAJA petition 

for costs and fees should be filed here and decided by this court in the first instance.

The EAJA does not specify where a petition for costs and fees may or must be filed, but 

simply provides that “a court shall award” costs and fees when the other statutory requirements 

are satisfied. 28 U.S.C. § 2412(d)(1)(A). Although it remains an open question in this circuit, 

other circuits hold that the courts of appeal possess jurisdiction to award fees under the EAJA. 

E.g., Orn v. Astrue, 511 F.3d 1217, 1219 (9th Cir. 2008). However, “in the usual case in which 

fees are sought for the entire litigation, the determination of whether the government was 

‘substantially justified’ . . . is for the district court to make.” United States v. Real Property 

Known as 22249 Dolorosa St., 190 F.3d 977, 981 (9th Cir. 1999). This is because “the district 

court may have insights not conveyed by the record, into such matters as whether particular 

evidence was worthy of being relied upon, or whether critical facts could easily have been 

verified by the Government.” Pierce v. Underwood, 487 U.S. 552, 560 (1988).

Cathedral Buffet’s arguments in favor of litigating costs and fees in this court can be 

distilled to a single point: it does not wish to argue before the district court that the DOL’s 

position in this case was unreasonable, when that same district court adopted the DOL’s position 

following the bench trial. Although this desire is perhaps understandable, it is not a legitimate 

reason to forgo judicial economy.

To the contrary, judicial economy strongly favors having the district court adjudicate 

Cathedral Buffet’s petition in the first instance. The DOL notes, correctly, that further factfinding may be necessary to determine if Cathedral Buffet is entitled to costs and fees under the 

EAJA, and if so, to resolve any disputes regarding the amount of that entitlement. As previously 

stated: “We do not have a witness chair for hearing evidence, and we are not in a position to 

conduct an evidentiary hearing where proof is offered on the question of attorney’s fees.” 

O’Bryan v. Saginaw Cty., 722 F.2d 313, 314 (6th Cir. 1983).
No. 17-3427 Acosta v. Cathedral Buffet, et al. Page 4

Further, the district court has more extensive knowledge than do we regarding how the 

litigation unfolded below. While we may have the power to entertain Cathedral Buffet’s 

petition, the district court is certainly better-equipped to determine the amount of fees, if any, 

that should be awarded for counsel’s work at that level. And it makes little sense to entertain 

Cathedral Buffet’s request for appellate costs and fees separately in this court, since that would 

effectively require the parties to litigate the same issues simultaneously in two different courts. 

Judicial economy will be best served by allowing the district court to rule upon Cathedral 

Buffet’s petition for costs and fees in the first instance, and then allowing this court to entertain 

an appeal if either party feels the district court’s fee award is deficient. See Garcia v. Schweiker, 

829 F.2d 396, 398 (3d Cir. 1987).

Accordingly, Cathedral Buffet’s motion for leave to file an EAJA petition in this court is 

DENIED, and its EAJA petition is DENIED AS MOOT. Furthermore, the joint motion to hold 

the EAJA petition in abeyance is also DENIED AS MOOT.

ENTERED BY ORDER OF THE COURT

___________________________________

Deborah S. Hunt, Clerk