Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc. (agency decision, January 4, 2023)

Plain-English summary

The Board had ruled on December 22, 2022 that the Equal Access to Justice Act applied to H-2B enforcement matters, but it denied Graham and Rollins's fee request on other grounds. The Wage and Hour Division sought more time to petition the Secretary for review. Sitting en banc, the Board held that the delegation governing Secretarial review fixed a 14-day filing period and gave the Board no authority to enlarge it. The Board denied the extension while noting that a petition could still be filed by 11:59 p.m. on January 5. A timely petition followed, and the Acting Secretary later reversed the Board's EAJA-coverage holding while leaving the denial of fees intact.

Decision snapshot

• Cited authorities: 5 U.S.C. § 504; 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b) and 1184(c)(14)
• Outcome: Extension request denied because the Board could not enlarge the delegated 14-day petition period; later Secretarial review reversed the Board on EAJA coverage.
• Key point: The Board cannot extend a Secretarial-review deadline fixed by the Secretary's delegation, even though a petition filed within that deadline may still be considered for referral.

Full text (DOL official public release)

U.S. Department of Labor            Administrative Review Board
                                    200 Constitution Ave. NW
                                    Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE AND ARB CASE NO. 2021-0047 HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, ALJ CASE NO. 2018-TNE-00022

            PROSECUTING PARTY,                DATE: January 4, 2023

     v.

GRAHAM AND ROLLINS, INC.,

            RESPONDENT.

Appearances:

For the Respondent:
Leon R. Sequeira, Esq.; LRS Law; Prospect, Kentucky

For the Administrator, Wage and Hour Division:
Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Rachel Goldberg, Esq.;
Sara A. Conrath, Esq.; U.S. Department of Labor, Office of the
Solicitor; Washington, District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, and BURRELL, and PUST, Administrative Appeal Judges

ORDER DENYING MOTION TO EXTEND TIME TO FILE PETITION FOR
                 SECRETARIAL REVIEW

   EN BANC. This case arises under the Equal Access to Justice Act (EAJA), and

its implementing regulations. 1 The merits of the original case were addressed by

1 5 U.S.C. § 504; 29 C.F.R. Part 16.
 2

the Administrative Review Board (ARB or Board) in ARB Case Number 2019-0009 under the H-2B provisions of the Immigration and Nationality Act (H-2B, INA, or Act), as amended, and its implementing regulations. 2

   On June 26, 2018, an Administrative Law Judge (ALJ) dismissed the case,

and the Board affirmed on November 16, 2020. 3 Respondent Graham and Rollins, Inc. (Respondent) subsequently filed a motion for attorney’s fees under EAJA on December 16, 2020. The ALJ found that EAJA applied to H-2B enforcement matters and awarded fees. 4

   The Administrator (Administrator) of the United States Department of Wage

and Hour Division appealed to the Board. On December 22, 2022, the Board issued a Decision and Order affirming the ALJ’s decision in part and reversing the decision in part and ultimately denying the petition for fees under EAJA. 5

   On December 28, 2022, the Administrator filed a Motion for Extension of

Time to File Petition for Secretarial Review of the Board’s December 22, 2022 Decision and Order. On December 30, 2022, Respondent filed Employer’s Opposition To Principal Deputy Administrator’s Motion For Extension Of Time To File Petition For Secretarial Review.

    We hereby DENY the Administrator’s motion because it exceeds the Board’s

2 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b), 1184(c)(14). The statute’s implementing regulations are found at 20 C.F.R. Part 655, subpart A. The original INA was enacted in 1952 and has been amended numerous times. Congress enacted the H-2B provision at issue in Section 404 of the Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, 2005, Div. B, The Real ID Act of 2005, § 404, Pub. L. No. 109– 13, 119 Stat. 231 (codified at 8 U.S.C. § 1184(c)(14)). 3 Adm’r, Wage & Hour Div., U.S. Dep’t of Labor v. Graham & Rollins, Inc., ALJ No. 2008-TNE-00022, slip op. at 3 (ALJ June 26, 2018), adopted and attached by the Administrative Review Board, Adm’r, Wage & Hour Div., U.S. Dep’t of Labor v. Graham & Rollins, Inc., ARB No. 2019-0009, ALJ No. 2018-TNE-00022 (ARB Nov. 16, 2020). 4 May 19, 2021 Recommended Decision and Order Awarding Attorney’s Fees (R. D. & O.). On June 1, 2021, the Acting Administrator of WHD filed a Motion to Vacate the ALJ’s Decision and Order. Graham & Rollins filed its Opposition to the Administrator’s Motion to Vacate with the ALJ on September 15, 2021. On September 24, 2021, the ALJ issued an Order Denying Motion to Vacate (Denial Order). 5 Adm’r, Wage & Hour Div., U.S. Dep’t of Labor v. Graham & Rollins, Inc., ARB No. 2019-0009, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022). 3

authority as set forth in the Secretary’s Delegation of Authority and Assignment of Responsibility to the Administrative Review Board. 6 The Delegation specifies at (6)(b)(1) that “[a]t any point during the first 14 calendar days after the date on which a decision of the Board was issued, a party to the case may file a petition with the Board for further review by the Secretary.” The Delegation establishes the entire authority and responsibility the Secretary has delegated and assigned to the Board. We may not exceed this delegation by extending the time periods for filing set forth or otherwise.

   However, a petition for Secretarial review under the Delegation may be

timely filed with the Board on or before 11:59 p.m., on January 5, 2023. In the event such a petition for further review is filed, the Board will determine whether to refer the matter to the Secretary for further review pursuant to the terms of the Delegation. 7

   SO ORDERED.


                                     __________________________________________
                                     SUSAN HARTHILL
                                     Chief Administrative Appeals Judge



                                     __________________________________________
                                     THOMAS H. BURRELL
                                     Administrative Appeals Judge



                                     __________________________________________
                                     TAMMY L. PUST
                                     Administrative Appeals Judge

6 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 7 Specifically, the Board will determine whether “the petition presents a question of law that is of exceptional importance and warrants review by the Secretary,” and if so, “the Board shall advise the Secretary of such determination in writing and explain why the Board believes review by the Secretary is warranted.” Delegation at (6)(b)(1).