UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

G.H. DANIELS III & ASSOCIATES, 

INC.; HANDY ANDY SNOW 

REMOVAL, 

 Plaintiffs - Appellants, 

v. 

PATRICK PIZZELLA,* Acting Secretary 

of U.S. Department of Labor; KEVIN 

McALEENAN, Acting Secretary of 

U.S. Department of Homeland Security; 

MICHAEL R. POMPEO, Secretary of 

State; WILLIAM P. BARR, United 

States Attorney General, 

 Defendants - Appellees. 

No. 18-1375 

(D.C. No. 1:12-CV-01943-CMA-MJW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT***

 * In accordance with Rule 43(c)(2) of the Federal Rules of Appellate 

Procedure, Patrick Pizzella is substituted for Alexander Acosta as 

Defendant-Appellee in this action. 

 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate 

Procedure, Kevin McAleenan is substituted for Kirstjen Nielsen as 

Defendant-Appellee in this action. 

*** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 25, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Before LUCERO, MATHESON, and MORITZ, Circuit Judges. 

_________________________________ 

Appellants G.H. Daniels III & Associates, Inc. and Handy Andy Snow 

Removal employ H-2B nonimmigrant guest workers to perform seasonal work. They 

filed suit against the Department of Homeland Security (“DHS”) challenging DHS’s 

administration of the H-2B visa program. After prevailing on their claim that DHS 

impermissibly sub-delegated its decisionmaking authority under the H-2B visa 

program to the Department of Labor (“DOL”), they moved for an award of attorneys’ 

fees, costs, and expenses pursuant to the Equal Access to Justice Act (“EAJA”). The 

district court denied the motion, and they appealed. Exercising jurisdiction under 

28 U.S.C. § 1291, we reverse and remand for further proceedings. 

I 

The H-2B visa program permits United States employers to recruit and hire 

foreign workers to fill temporary, unskilled, non-agricultural positions for which 

domestic workers cannot be located. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). DHS sets 

the terms and conditions for admitting H-2B nonimmigrants, but the determination of 

whether to admit a nonimmigrant worker in each specific case must be made “after 

consultation with appropriate agencies of the Government.” § 1184(c)(1) (emphasis 

added). 

In 2008, DHS issued regulations that require H-2B petitioners to secure a valid 

labor certification from DOL before filing an H-2B foreign worker petition with 
3 

DHS. Appellants challenged this regulation. The government moved to dismiss the 

complaint, arguing that DHS’s exercise of its authority to require that an employer 

first obtain a labor certification from DOL is authorized by the “consultation” 

provision in § 1184(c)(1). The district court agreed, but we reversed on appeal. We 

concluded that “DHS’s formulation of the scope and nature of DOL’s ‘consultation’ 

is unreasonable.” G.H. Daniels III & Assocs. v. Perez, 626 F. App’x 205, 210 

(10th Cir. 2015) (unpublished). 

The government then filed a petition for rehearing, which we denied. We 

noted the government raised a new argument in its petition—“that 8 U.S.C. 

§ 1103(a)(6) gave DHS authority to subdelegate its H-2B decision-making authority 

to DOL.” Id. at 212 n.10. We explained that, “[the government’s] argument has 

always been there is no subdelegation” and “[i]t clearly waived any reliance on 

8 U.S.C. § 1103(a)(6) in this case or, at best, forfeited the issue.” Id. And we further 

explained, “[i]t is too late in the process to entertain waived/forfeited arguments that 

may or may not be meritorious.” Id. 

Because appellants prevailed on the subdelegation claim, they filed a motion 

for fees and costs under EAJA. That statute directs a court to award fees and other 

expenses to a prevailing party in a civil action against the United States “unless the 

court finds that the position of the United States was substantially justified.” 

§ 2412(d)(1)(A). 

The district court denied the motion, explaining that the government’s theory 

had been adopted in decisions of multiple courts, including the Third Circuit, and that 
4 

the government may take substantially justified positions and still lose, see Pierce v. 

Underwood, 487 U.S. 552, 569 (1988). Appellants now appeal. 

II 

We review the district court’s denial of a motion for fees under EAJA for 

abuse of discretion. See Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011). 

An abuse of discretion “occurs when the district court bases its ruling on an 

erroneous conclusion of law or relies on clearly erroneous fact findings.” Id. 

(quotations omitted). “Our appellate role is limited to ensuring that the district 

court’s discretionary decision did not fall beyond the bounds of the rationally 

available choices before the district court given the facts and the applicable law in the 

case at hand.” Id. (quotations and alterations omitted). 

In their motion for fees, appellants argued the government’s position was 

unreasonable.1

 They sought fees for all stages of the litigation, including the time 

 1

 Although this is an appeal from the denial of appellants’ motion for fees 

under EAJA, appellants inexplicably failed to include a copy of that motion in their 

appendix. “An appellant represented by retained counsel must electronically file an 

appendix sufficient for considering and deciding the issues on appeal.” 10th Cir. R. 

30.1(B)(1). “When the appeal is from an order disposing of a motion . . . , the motion 

. . . must be included in the . . . appendix.” 10th Cir. R. 10.4(D)(2). “The court need 

not remedy any failure of counsel to provide an adequate appendix,” 10th Cir. R. 

30.1(B)(3), and “[w]hen the party asserting an issue fails to provide a record or 

appendix sufficient for considering that issue, the court may decline to consider it,” 

10th Cir. R. 10.4(B). Although we have the authority to go beyond the appendix to 

review documents filed in the district court, we are not obligated to do so. See 

Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907-08 (10th Cir. 2009). We have 

retrieved appellants’ motion from the district court docket and reviewed it, but 

caution counsel that filing an insufficient appendix could result in a summary 

affirmance of the district court’s decision. Id. at 910. 
5 

spent researching and preparing a response to the government’s petition for 

rehearing. They asserted the government unreasonably reversed its previous 

litigation position in its petition for rehearing, without authority or reasonable basis 

for changing its position, and that “[t]he inconsistency in the government’s positions 

prior to its petition for rehearing and in its petition for rehearing establishes that its 

changing positions were not substantially justified.” The district court’s order 

denying the motion for fees does not mention this argument or otherwise discuss the 

government’s petition for rehearing. 

On appeal, appellants argue the district court abused its discretion by failing to 

consider the argument regarding the government’s change of position in its petition 

for rehearing. And appellants specifically contend that the government’s 

unreasonable position in the petition for rehearing constitutes sufficient justification 

to award EAJA fees. 

The Supreme Court has explained: “While the parties’ postures on individual 

matters may be more or less justified, the EAJA—like other fee-shifting statutes—

favors treating a case as an inclusive whole, rather than as atomized line-items.” 

Comm’r v. Jean, 496 U.S. 154, 161-62 (1990). In reviewing appellants’ motion for 

fees under EAJA, the district court should have considered appellants’ argument 

regarding the government’s position on rehearing as part of the district court’s 

holistic assessment of whether the government’s overall position in the litigation was 

justified. See United States v. Johnson, 920 F.3d 639, 649 (10th Cir. 2019) (finding 

persuasive the Fourth Circuit’s conclusion “that the substantial-justification inquiry 
6 

should focus holistically on whether the government acted reasonably in causing the 

litigation or in taking a stance during the litigation” (quotations omitted)), pet. for 

cert. filed, (U.S. June 27, 2019) (No. 19-10). We are unable to discern from the 

district court’s decision whether it considered appellants’ argument about the 

government’s petition for rehearing. We therefore must remand for the district court 

to explicitly address this issue as part of its substantial-justification inquiry. Cf. 

Griffen v. City of Okla. City, 3 F.3d 336, 342 (10th Cir. 1993) (remanding to district 

court for further findings or explanation because this court could not tell from the 

district court’s order why it refused to impose sanctions and therefore this court was 

left with no “means by which to judge the exercise of the [district] court’s discretion” 

(quotations omitted)). 

III 

Accordingly, we REVERSE and REMAND to the district court for further 

proceedings consistent with this decision. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge