R. Alexander Acosta, Secretary of Labor, Plaintiff-Appellee,
Cathedral Buffet, Inc.; Ernest Angley, Defendants-Appellants.
from the United States District Court for the Northern
District of Ohio at Akron. No. 5:15-cv-01577-Benita Y.
Pearson, District Judge.
A. Mazzola, RODERICK LINTON BELFANCE, LLP, Akron, Ohio, for
E. McDonald, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Appellee.
Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.
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.
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)).
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).
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.
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).
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.
contrary, judicial economy strongly favors having the
district court adjudicate Cathedral Buffet's petition in
the first instance. The DOL notes, correctly, that further
fact-finding 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
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