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 Appel late 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 Appel late Procedure, Kevin McAleenan is s ubstituted for Kirstjen Nielsen as Defendant-Appellee in this action.

*** After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he 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 ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 25, 2019
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before LUCERO , MATHESON , and MORITZ , Circuit Judges.

________________ _________________ Appellants G.H. Daniels III & A ssociates, Inc. and Handy Andy S now Removal employ H-2B nonimmigran t guest workers to perform seaso nal work. They filed suit against the Department of Homeland Security (“DHS”) challenging DHS’s administration of the H-2B visa program. After prevailing on t heir claim that DHS impermissibly sub-de legated its decisionmaking authority under the H-2B visa program to the Department of La bor (“DOL”), they moved for an a ward of attorneys’ fees, costs, and expenses pursu ant to the Equal Access to Justi ce Act (“EAJA”). The district court denied the moti on, and they appealed. Exercisin g jurisdiction under 28 U.S.C. § 1291, we reverse a nd remand for further proceedings

. I The H-2B visa program permits Un ited States employers to recrui t and hire foreign workers to fill tempor ary, unskilled, non-agricultural positions for which domestic workers cannot be locate d. See 8 U.S.C. § 1101(a)(15) (H)(ii)(b). DHS sets the terms and conditions for adm itting H-2B nonimmigrants, but the determination of whether to admit a nonimmigrant worker in each specific case mu st be made “after consultation with appropriate a gencies of the Government.” § 1 184(c)(1) (emphasis added). In 2008, DHS issued regulations that require H-2B petitioners t o secure a valid labor certification from DOL befor e filing an H-2B foreign work er petition with3 DHS. Appellants challenged this r egulation. The government mo ved to dismiss the complaint, arguing that DHS’s e xercise of its authority to requ ire that an employer first obtain a labor certificati on from DOL is authorized by th e “consultation” provision in § 1184(c)(1). The d istrict court agreed, but we r eversed on appeal. We concluded that “DHS’s formulati on of the scope and nature of DO L’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 pet ition for rehearing, which we de nied. We noted the government raised a ne w argument in its petition—“tha t 8 U.S.C. § 1103(a)(6) gave DHS authority to subdelegate its H-2B decisio n-making authority to DOL.” Id. at 212 n.10. We e xplained that, “[the government ’s] argument has always been there is no subdele gation” and “[i]t clearly waived any reliance on 8 U.S.C. § 1103(a)(6) in this ca se or, at best, forfeited the i ssue.” Id. And we further explained, “[i]t is too late in the process to entertain waived /forfeited arguments that may or may not be me ritorious.” Id. Because appellants prevailed on th e subdelegation claim, they f iled a motion for fees and costs under EAJA. Th at statute directs a court to award fees and other expenses to a prevailing party in a civil action against the Un ited States “unless the court finds that the position of t he United States was substant ially justified.” § 2412(d)(1)(A). The district court denied the m otion, explaining that the gover nment’s theory had been adopted in decisions o f multiple courts, including the Third Circuit, and that4 the government may take substan tially justified positions and s till 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 unde r EAJA for abuse of discretion. See Madron v. Astrue, 646 F.3d 12 55, 1257 (10th Cir. 2011). An abuse of discretion “occurs w hen the district court bases it s ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Id. (quotations omitted). “Our appe llate role is limited to ensuri ng that the district court’s discretionary decision di d not fall beyond the bounds o f the rationally available choices before the dist rict court given the facts and the applicable law in the case at hand.” Id. (quotations and alterations omitted). In their motion for fees, appell ants argued the government’s po sition was unreasonable. 1 They sought fees for all stag es of the litigation, including the time

1 Although this is an appeal from the denial of appellants’ moti on for fees under EAJA, appellants inexplicab ly failed to include a copy of that motion in their appendix. “An appellant represent ed by retained counsel must e lectronically file an appendix sufficient for consider ing and deciding the issues on appeal.” 10th Cir. R. 30.1(B)(1). “When the appeal is from an order disposing of a m otion . . . , the motion . . . must be included in the . . . appendix.” 10th Cir. R. 1 0.4(D)(2). “The court need not remedy any failure of counsel to provide an adequate append ix,” 10th Cir. R. 30.1(B)(3), and “[w]hen the party asserting an issue fails to p rovide a record or appendix sufficient for consider ing that issue, the court may d ecline to consider it,” 10th Cir. R. 10.4(B). Although we have the authority to go bey ond the appendix to review documents filed in the di strict court, we are not obliga ted to do so. See Burnett v. Sw. Bell Tel., L.P. , 555 F.3d 906, 907-08 (10t h Cir. 2009). We have retrieved appellants’ motion fro m the district court docket and reviewed it, but caution counsel that filing an ins ufficient append ix could resu lt in a summary affirmance of the di strict 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 auth ority or reasonable basis for changing its position, and th at “[t]he inconsistency in the government’s positions prior to its petition for reheari ng and in its petition for reh earing establishes that its changing positions were not substa ntially justified.” The dist rict court’s order denying the motion for fees doe s not mention this argument or o therwise discuss the government’s petition for rehearing. On appeal, appellants argue the dis trict court abused its discr etion by failing to consider the argument regardi ng the government’s change of posi tion in its petition for rehearing. And appellants sp ecifically contend that the go vernment’s unreasonable position in the petiti on for rehearing constitutes sufficient justification to award EAJA fees. The Supreme Court has explaine d: “While the parties’ postures on individual matters may be more or less just ified, the EAJA—like other fee- shifting statutes— favors treating a case as an inc lusive whole, rather than as at omized line-items.” Comm’r v. Jean, 496 U.S. 154, 161 -62 (1990). In reviewing appe llants’ motion for fees under EAJA, the district c ourt should have considered appe llants’ argument regarding the government’s positi on on rehearing as part of the district court’s holistic assessment of whether the government’s overall positio n in the litigation was justified. See United States v. Johnson, 920 F.3d 639, 649 (10 th Cir. 2019) (finding persuasive the Fourth Circuit’s conclusion “that the substantia l-justification inquiry6 should focus holistically on whet her the government acted reaso nably in causing the litigation or in taking a stance during the litigation” (quotat ions omitted)), pet. for cert. filed, (U.S. June 27, 2019) (No. 19-10). We are unable t o discern from the district court’s decision wheth er it considered appellants’ arg ument about the government’s petition for rehear ing. We therefore must remand for the district court to explicitly address this issue as part of its substantial-jus tification inquiry. Cf. Griffen v. City of Okla. City, 3 F.3d 336, 342 (10th Cir. 1993) (remanding to district court for further findings or e xplanation because this court co uld not tell from the district court’s order why it re fused to impose sanctions and t herefore this court was left with no “means by which to judge the exercise of the [dist rict] 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