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Case number 16, Judge 5235, Washington Alliance of Technology Workers Appellant versus United States Department of Homeland Security.

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Mr. Miano for the appellant.

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Mr. Press for the appellee.

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Mr. Miano, good morning.

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May it please the court?

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I'm John Miano.

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I represent the Washington Alliance of Technology Workers.

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This is the second appeal to you, which is likely to be several in this matter.

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I see, Judge.

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Camel is cringing at this prospect.

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No, no.

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that if you were dealing with a fee award in the Equal Access to Justice Act, the district court held that we were a prevailing party entitled to a fee.

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However, the district court reduced the fee by 91%, which didn't leave much of a fee.

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And I think we have the dubious distinction now of setting the record for the greatest percentage reduction in the fee award.

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Well, you didn't have much of a win.

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That was the reason you don't have much of a fee.

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Well, Your Honor, a question.

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I think it would be that the actual outcome of what should have been a win.

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Well, you don't bring that into Catalyst Theory.

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You don't use the Catalyst Theory, do you?

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No, Your Honor.

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All right, well.

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But here, I think we have three major disagreements with the district court.

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The first is that the district court disallowed fees for all activities after its initial opinion.

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This is contrary to the Supreme Court's directive in conditional I.N.S.

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versus John that the fee award is supposed to cover the entire litigation.

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The second major dispute is that the district court reduced fees for issues where there was no decision made by the courts.

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Well, that reduced fees for a matter of whether there was no decision made.

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The other way of saying that did not award fees

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for the matter you can you seem to proceed you're going to do you think in your

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and that the court has to justify using it.

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In the first instance, you have to justify getting it, don't you?

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You're correct, Your Honor.

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And I would also say that's the language the Supreme Court uses, that the failure to reach an outcome is not a basis to produce it.

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I believe that's the word in the Supreme Court uses.

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And the major

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The district court's major reduction was because the district court had ruled that this regulation in question was within the authority of DHS, and this court vacated that decision to allow it to be pursued in subsequent litigation.

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And the last major issue of disagreement is really the scope of the victory.

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Here we achieve to set aside a rule for failure to give notice and comment, which the circumstances were quite unusual.

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You and this court have said that that is a fundamental flaw that normally requires that they cater to the rule, yet the district court has characterized that as a marginal victory.

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And if you go and look at the stat... It depends on the theory, I guess.

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And the thing I'm struggling with for both parties here is how you distinguish separate claims from separate legal theories.

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If you have separate claims, one successful and one not, that doesn't count.

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Right, Your Honor.

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Well, here's the way I would put it.

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We had two groups of causes of action.

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One group were procedural defects in the rulemaking.

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There we unquestionably prevailed.

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Now, under the statute of 5 U.S.C.

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706, the remedy for that is to set aside the rule.

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The other group's cause of action we had were that the rule was in excess of DHS authority.

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The remedy for that is to set aside the rule.

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It's the exact same thing.

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So the Supreme Court said that litigants in good faith may raise alternate legal grounds for desired outcome, which here is outside the rule, and the court's rejection or failure to reach certain grounds is not a reason producing a fee.

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So the real question here, which never has been asked, is whether what we did was reasonable.

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And that's kind of the... Well, it's the vacator that you won is not as good as the vacator you would have won had it been an excessive statutory authority.

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That's the, I think, the theory the government has.

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And I'm not sure that works, but I'm trying to figure out how we assess that.

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Is one kind of vacator better than another kind of vacator?

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Well, this goes back to the issue that was on appeal, is that we disagreed with the kind of vacated the district court gave, where the district court simply said, okay, we're going to delay the stay, so you can just do what you did, but just do that little notice and comment thing afterwards.

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And then when DHS didn't

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do it within that time period, the court extended it again, which, while in theory this court had jurisdiction and not the district court, and so the moot of this case was the result of issues that we had appealed to this court.

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So our great frustration here is that we appeal all these issues to you, which the district court based its reduction.

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We raised all these issues to you, and we've gotten no decision here.

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And I would point out, this is an issue here.

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I think it's a fairly simple question.

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Does DHS have the authority to allow aliens on student visa status to remain in full-time employment for years after graduation?

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And realize that this has been before the federal courts for nine years now.

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Three trips and no decision.

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Well, you have to imagine our frustration here.

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And your theory is you might have won on that in our court last trip, but for getting mooted out.

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That's true.

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I believe so, Your Honor.

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Well, I'm still stuck on the claims legal theories thing, but I think I have to ask the government then.

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All right.

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Mr. Press.

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Good morning.

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May I please support Joshua Press on behalf of the Department of Homeland Security.

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With me at the table is my co-counsel, Lynn Gutari.

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Your Honor, this is really a simple appeal.

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We're here on a single issue, and that's whether Judge Hevell's fee award, she did award fees to WSDAC, was an abusive discretion.

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That's a relatively differential standard, and we do not disagree with any part of her discretionary reduction in their fee request.

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We're talking about nearly half a million dollars of requesting for fees, some of which, if you look at their itemization, some of the work that was done that they're asking for fee awards for were done

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before they even filed a complaint.

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We think under such circumstances that Judge Ewell's reduction was perfectly appropriate.

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What do you do, and the Supreme Court has said, litigants in good faith may raise alternative legal grounds for a desired outcome, and the Court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.

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The result is what matters.

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Now that's from Hensley.

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And their argument is we raised alternative legal grounds to get the rule vacated.

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And the court vacated the rule.

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And the fact that the alternative legal grounds were rejected or not reached is, to use the Supreme Court's words, is not a sufficient reason for reducing a fee.

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How do you respond to that?

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Well, thank you for that, because that is a good question on the circumstances of this case.

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If you recall, Mr. Miyano mentioned how this case was nine years in the making.

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If you actually look at the scope of that, what he's referring to is this prior case in the Third Circuit challenging F-1 student visas entirely.

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This is an essential scheme of theirs or a campaign of theirs to essentially never have

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students work in the United States.

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There's nothing wrong with them suing.

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No, I don't quibble with that point.

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The main point I'm trying to make is that they're trying to entirely strike that part of the regulatory scheme down, something that's been in effect since 1947, essentially.

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they're only entitled under Hensley to fees, reasonable fees for what they prevailed upon, not what they request, sort of as what Judge Centella was mentioning in terms of their flipping the script here.

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The point of Hensley is that a fee award, even to a prevailing party, has to be tied to the parts of the case in which they actually won.

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The only parts that they actually won, as Judge Henderson mentioned, was in the notice and comment claim.

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But that got the rule vacated.

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Yes, they got the 2008 rule vacated.

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And if they had won on the statutory authority claim, they would have got the rule vacated.

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Well, had they done other things that they could have been successful, that is true.

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Instead, they, essentially, they only managed to get notice and comment issue.

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But you agree with me, if they had won on the other ground, the only relief would have been to vacate the rule.

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Well, that's getting to the 2008 rule alone.

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They also challenged the 1992 rule, and they lost on that.

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The point of his, as you were mentioning, is to essentially deter shotgun effect complaints.

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And although they have not been deterred by that,

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that is not calling it names does not answer the question as to the Supreme Court has said that parties can in good faith raise alternate theories and that they're not necessarily going to be reduced in fee because of doing so and I'm not really hearing you come to grips with that

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Well, my point is that they've never won on those alternate theories.

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And in fact, they renewed those alternate theories very soon after this case was mooted earlier by this court.

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And they lost on those alternate theories yesterday by Judge Wall.

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I'm sure we'll be back here in six months from now again talking about that appeal.

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They're only entitled to what they have actually prevailed.

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What do you say about the part of the judges order where she cut off the date and no award will be made after the date of the.

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You're referring to August 12 2015.

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Well, I think that was based on her sound judgment to the extent that they never won anything after August 12 2015.

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The only issue they've went on in nine years of litigation is the notice and comment claim and they never won anything after her opinion of August 12 2015.

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entity.

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Yes.

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We agree with Your Honor that it's one or another bridge at this point to the extent that they wanted a notice and comment claim.

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We do still believe that our position was substantially justified.

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You didn't cross appeal on that.

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No, we did not.

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We did not.

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You had a decent argument on that, but you didn't raise that.

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Well, that's essentially because we didn't want to trouble this matter or keep this case in further litigation.

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I've had enough litigation in this case or on these rules, and we're going to be back again talking about the same things all over again.

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Our front of the argument is simply that they only prevailed on one part of their nine claims.

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Well, let me try again on this, because I need help.

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In Anthony v. Sullivan, which is cited in the briefs, that's our case.

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It says something very similar to Hensley.

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I'm just going to read it and then ask you how I'm supposed to decipher this.

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It says, even though the district court generally has wide discretion in calculating an appropriate fee, no fee may be granted for work done on claims on which the party did not prevail.

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So far, so good for you.

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But then it says, unless the unsuccessful claims were submitted as alternative grounds for a successful outcome that the plaintiff did actually achieve.

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I think the way that we... And the unless clause is a problem for you.

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Yes.

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And the way that we read that is that this is essentially cumulative.

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The plaintiffs in this case and the plaintiffs in the Third Circuit case, they keep building up in terms of trying to knock down as much of the F-1 student visa process as they can.

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From Sullivan, the same case, it says, Hensley says loud and clear that when a party has obtained no favorable results in a particular aspect of litigation, for example, here, the 1992 OPT rule, that party may receive no fee for work on that part of the case.

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And that's a simple argument.

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And we subscribe to this course, depending on Sullivan, believe that it actually supports us, despite that cause that he pointed out.

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Now suppose you were challenged to the constitutionality of a statute and you had a First Amendment argument and a Fourteenth Amendment argument.

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Sure.

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And you win on the First Amendment argument and you lose on the Fourteenth Amendment argument and the statute is held unconstitutional.

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Do you get all your fees?

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I'm afraid I'd have to know more about the particular statute that's being challenged.

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I mean, typically, I think something that would be violative of the First Amendment would probably be violative of the 14th Amendment if we're talking about state statutes.

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Well, no, you could say equal protection argument in a First Amendment free speech argument.

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I don't think that you would be entitled to get all of the fees that you're requesting.

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So, for example, the research that you're talking about with respect to equal protection claims.

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You would not get that?

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You would not get that to the extent that those theories were rejected.

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The main point there is that the research on equal protection...

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unless the unsuccessful claims were submitted as alternative grounds for successful outcome that the plaintiff did actually achieve.

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All the plaintiff wanted to do in the HIPAA was to get the statute declared unconstitutional and achieve that.

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Here all they wanted to do was get the rule vacated and they achieved that.

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But it wasn't just the rule.

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It wasn't just the 2008.

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Right, OK.

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I'll take that one.

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What they're trying to do here is they're trying to get the entire F1 student visa process shut down.

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They want it eliminated entirely.

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They've never gotten anything further than the notice and comment claims.

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So in your hypothetical, to analogize it to what we have in this case, that would be tantamount to getting everything.

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No foreign student could ever work in the United States.

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That would be equivalent to what your hypotheticals say.

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And they are very far from that hypothetical at this point.

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If there are no further questions.

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All right.

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Thank you.

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How much time does Mr. Leano have?

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said three points.

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First of all, we seem to have lost Hensley here, which Hensley sets up three situations.

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The first is whether the claims are separable.

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And if they're separable, then you can chop them up and delegate fees.

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Here, the district board even held that the claims were inseparable.

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So in those cases,

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When we get to the second page, the question is whether the fee is reasonable.

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And this is one of the problems we've had is essentially all the fee objections here have been raised to respond to.

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So we're essentially responding to these fee reduction requests for the first time before you.

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And no one has asked us, is what you requested reasonable to get the outcome that we got?

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And if you did, I would justify that.

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The one part that our council here raised was that years of preparation before.

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And I think that we spent a quarter of a million dollars on standing alone in this case.

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That's absurd, but it had to be done.

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It's our fault.

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One of the problems that we have in bringing these cases is the law standing has its

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But in addition, we have the problem that new rules of standing just pop up brand new.

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And so we're essentially forced to do this overwhelming nuclear option of collecting job advertisements for years in advance.

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mapping them to the jobs that our clients apply to.

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Now, under the standard of this court, a rule that allows competition causes an injury, in fact, that shouldn't be necessary.

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But the reality is that in the world of the district courts, it does turn out to be necessary.

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What do you do with government's point about the 1992 aspect of the case?

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Well, you know, it's rather insidious, but I would also add that's something we appeal to you.

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We appeal to you and got no decision on.

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So we're being penalized by non-decisions.

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I mean, I quite honestly believe at the end of the day that this court is not going to hold the person three years after graduation working full-time as a student.

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And so your point is that 1992, even if you didn't prevail on the 1992 aspect, that shouldn't matter?

[00:19:05] Speaker 01:
It shouldn't really matter.

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Explain that some more.

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Well, it's the exact same thing.

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This is where one of our disputes with the district court was on appeal, is that the district court dismissed our counts related to the 1992 rule

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because of standards, they said there was no injury on that.

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But you had to work on the 1992 rule to work on the 2008 rule.

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So it's inconceivable to me how you could not be injured by the 1992 rule if you're injured by the 1998 rule.

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We appeal to you that question.

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And again, got no decision here.

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And so we're just continuing on and on.

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All right, thank you.

[00:19:52] Speaker 01:
Thank you.