Administrator, Wage & Hour Div., USDOL v. Morton Concessions, Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
ADMINISTRATOR, WAGE AND HOUR
DIVISION, UNITED STATES
DEPARTMENT OF LABOR,
PROSECUTING PARTY,
v.
MORTON CONCESSIONS, INC.,
RESPONDENT.
ARB CASE NO. 2024-0043
ALJ CASE NO. 2020-TNE-00056
ALJ PATRICK M. ROSENOW
DATE: April 9, 2026
Appearances:
For the Administrator, Wage and Hour Division:
Seema Nanda, Esq.; Jennifer S. Brand, Esq.; Sarah Kay Marcus, Esq.;
Sara A. Conrath, Esq.; and Joseph E. Abboud, Esq.; U.S. Department
of Labor, Office of the Solicitor; Washington, District of Columbia
For the Respondent:
R. Wayne Pierce, Esq.; The Pierce Law Firm, LLC; Annapolis,
Maryland
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL
and KIKO, Administrative Appeals Judges; BURRELL, concurring
DECISION AND ORDER
This case arises under the Equal Access to Justice Act (EAJA or the Act), and
its implementing regulations.1 The case before us today presents the narrow
question of whether EAJA allows an eligible employer to recover attorney’s fees and
costs under that Act when prevailing against the government in an enforcement
action brought under the H-2B provisions of the Immigration and Nationality Act
1 5 U.S.C. § 504; 29 C.F.R. Part 16 (2025).

2
(H-2B and INA, respectively), as amended, and its implementing regulations.2
The prior Acting Secretary of Labor, Julie Su (Acting Secretary), previously
determined in Administrator, Wage and Hour Division, U.S. Department of Labor v.
Graham & Rollins, Inc. (Graham & Rollins) that EAJA does not apply to such
proceedings. In reaching this result, the Acting Secretary reversed a contrary
decision by the ARB, which had upheld a decision by the Administrative Law Judge
(ALJ) below on the precise same issue.3 In essence, the disagreements of
interpretation in these opinions, as much discussed below, turn on whether the fact
that the H-2B statute does not expressly say “on the record” forecloses application of
EAJA.
Relying on the Acting Secretary’s Graham & Rollins decision, the ALJ in this
case denied Respondent Morton Concessions, Inc.’s, request for attorney’s fees
under EAJA. Because we are bound by the decision in Graham & Rollins, we affirm
the ALJ. However, we take this opportunity to highlight our concerns with that
decision and encourage the current Secretary of Labor to revisit the issue.
We of course do not make a recommendation to revisit or overturn a prior
Secretary’s decision lightly and therefore provide detailed supporting analysis. We
divide this decision into several sections.
In our Background section, we begin with a short discussion of EAJA and the
Administrative Procedure Act (APA),4 providing an overview of the legal standards
and definitions that will guide our discussion. This includes articulating what must
be shown to establish that EAJA applies to these H-2B proceedings—namely, that
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 (2025), with additional enforcement regulations
at 29 C.F.R. Part 503 (2025). 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 Lab. v. Graham & Rollins, Inc.
(Graham & Rollins (Acting Secretary)), ARB No. 2021-0047, ALJ No. 2018-TNE-00022
(Sec’y Aug. 9, 2023) (Final Agency Decision and Order), rev’g Adm’r, Wage & Hour Div.,
U.S. Dep’t of Lab. v. Graham & Rollins, Inc. (Graham & Rollins (ARB)), ARB No. 2021-
0047, ALJ No. 2018-TNE-00022 (ARB Dec. 22, 2022) (Decision and Order Affirming in Part
and Reversing in Part).
4 5 U.S.C. §§ 551-559.

3
Congress intended for these proceedings to be conducted “on the record” under the
procedures of the APA.
Second, we provide background regarding the purposes of EAJA and the
societal forces that led to its enactment—a discussion that is absent from the Acting
Secretary’s decision in Graham & Rollins. We highlight legislative history showing
that EAJA arose out of a concern over the growing power of federal agencies and the
inability of small businesses to protect themselves against baseless, heavy-handed
agency enforcement actions. EAJA, passed in 1980 and reauthorized in 1985 on a
largely bipartisan basis, sought to level this sharply unfair playing field.
Third, we provide a brief description of the H-2B program along with an
overview of the Board’s and the Acting Secretary’s decision in Graham & Rollins.
In that case, after the ALJ and ARB dismissed the enforcement action of the
Administrator of the Wage and Hour Division (Administrator) under the applicable
statute of limitations, the employer sought attorney’s fees against the Department
under EAJA, arguing that the Administrator’s position was not substantially
justified. The Administrator opposed the action, arguing that EAJA did not apply to
the proceedings. A two-Member majority of the Board (Majority) conducted a
detailed and thorough review of the H-2B enforcement provisions, their legislative
history, the APA and its legislative history, caselaw from the Supreme Court and
courts of appeals, and other factors. The Majority concluded that although the H-
2B enforcement statute does not explicitly state that the proceedings must be
determined “on the record,” Congress clearly intended these quasi-judicial
proceedings to be determined on the record and subject to the APA. However, the
Acting Secretary, largely guided by a narrow view of waivers of sovereign
immunity, overturned the ARB’s decision and concluded that the H-2B proceedings
were not required to be determined “on the record,” and, thus, were not subject to
EAJA.
Finally, we give a brief background on the present case. As in
Graham & Rollins, the ALJ dismissed an untimely enforcement action brought by
the Administrator under the applicable statute of limitations. Morton Concessions
moved for attorney’s fees under EAJA. Based on the Acting Secretary’s decision in
Graham & Rollins, the ALJ here ruled that EAJA did not apply and did not reach a
conclusion on whether the Administrator’s position was substantially justified.
Following this Background, we offer our Discussion. In the first section of our
Discussion, we recognize that Graham & Rollins compels us to affirm the ALJ in

4
this instance. As a delegee of the Secretary of Labor, we are bound to follow the
Secretary’s decisions. The Acting Secretary’s conclusion in Graham & Rollins was
clear: EAJA does not apply to H-2B enforcement proceedings. That is the precise
issue presented in this case and dictates this case’s outcome.
In the second section of our Discussion, though, we explain why we believe
the Acting Secretary reached the wrong conclusion in Graham & Rollins. There are
five primary reasons for our opinion.
First, we believe the decision did not give due consideration to the purposes
of EAJA. The Acting Secretary’s decision in Graham & Rollins was essentially
silent as to the very important purposes of EAJA. Instead, the decision featured
what we consider to be a hyper-technical statutory analysis without discussion of
the important context of the purposes of the statute. As we emphasize below,
examining the purpose of a statute is a staple of statutory interpretation and the
decision’s failure to explore the purposes of EAJA was, in our view, error.
Second, and in contrast, we believe the decision gave excessive weight to
sovereign immunity. It is clear from the decision that principles of sovereign
immunity essentially dictated the result in Graham & Rollins—it featured in
essentially every point of analysis and effectively created what amounted to an
insurmountable presumption that EAJA did not apply. We disagree with how
stringently and forcefully the decision applied sovereign immunity. The decision did
not appropriately recognize that EAJA offers a clear waiver of sovereign immunity
and the well-settled law that states that, once Congress evinces its intent to waive
sovereign immunity, tribunals should be careful not to narrow the waiver that
Congress intended. This principle is especially important and true in the context of
EAJA, which already provides guardrails protecting the public fisc. Restrictively
applying principles of sovereign immunity is superfluous and contrary to
congressional intent.
Third, we explain why we believe that Congress intended H-2B enforcement
proceedings to be decided on the record. We reiterate the ARB Majority’s view from
Graham & Rollins that courts of appeals have consistently stated that talismanic
“on the record” language is not necessary for Congress to have intended for the APA
to apply to these proceedings; rather, what counts is whether we or the Secretary
can otherwise conclude that Congress intended for the agency to adhere to the
requirements of the APA and thus that a proceeding be “on the record.” We then
explore nearly 80 years of legal precedent, dating back to the publication of the

5
United States Department of Justice’s Attorney General’s Manual on the
Administrative Procedure Act (APA Manual) in 1947,5 explaining that courts
generally presume, absent evidence to the contrary, that Congress intends for the
APA to apply to traditional, quasi-judicial adjudications like these H-2B
enforcement proceedings. We identify numerous courts of appeals cases confirming
this principle—including some that the Acting Secretary cited in Graham & Rollins.
Also highlighted are the hallmarks and characteristics of the proceedings in those
cases that led the courts to conclude that Congress intended the APA to apply, that
match the proceedings here under the H-2B statute. Likewise explained is why the
cases the Acting Secretary cited to the contrary are distinguishable or otherwise do
not undermine this well-established presumption.
Fourth, we believe the Acting Secretary gave undue weight to language
contained in other provisions of the INA. In concluding that Congress must not have
intended to apply the APA to H-2B enforcement proceedings, the decision
emphasized that other provisions of the INA refer specifically to the APA or
explicitly state that the proceedings must be determined “on the record,” while the
H-2B statute does not. The comparison of the H-2B enforcement statute to other
provisions in the INA presumes that Congress made the deliberate choice to use
other language in the H-2B statute to eliminate an “on the record” requirement.
Based solely on a canon of interpretation, we believe that argument begs too much
in this situation. The provisions to which the Acting Secretary compared the H-2B
enforcement statute were drafted at different times by different Congresses and
deal with different issues in different contexts. It is not reasonable to conclude that
Congress intended the differing language to mean the H-2B provisions were
excluded from the APA.
Finally, we close with some common sense. The Acting Secretary’s
conclusion—that H-2B enforcement proceedings need not be determined “on the
record” or be subject to the APA—leads to the negative result that these fact-
intensive and hotly contested cases might be decided on evidence that was never
introduced to the decisionmaker or, worse, that a court could never be sure existed.
This plainly cannot be Congress’s intent. Instead, we think it is imminently
reasonable to conclude, in line with nearly 80 years of precedent and legal
presumptions, that Congress intended to apply the APA to these quasi-judicial
adjudications and thus that H-2B enforcement proceedings be “on the record.”
5 U.S. Dep’t of Justice, ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE
PROCEDURE ACT (1947).

6
BACKGROUND
1. EAJA and the Administrative Procedure Act
EAJA allows prevailing parties that are not the United States to recover
attorney’s fees and costs from the federal government in cases involving an
“adversary adjudication,” in which the government’s position is not “substantially
justified.”6 The question in this appeal is whether H-2B enforcement proceedings
are “adversary adjudications” under EAJA.7
EAJA defines an “adversary adjudication” as “an adjudication under section
554 of [the APA] in which the position of the United States is represented by
counsel or otherwise.”8 Section 554 and subsequent provisions, in turn, prescribe
the APA’s formal adjudication procedures.9
A proceeding is considered “under” Section 554 of the APA if it is “subject to”
or “governed by” that section.10 Section 554 applies “in every case of adjudication
required by statute to be determined on the record after opportunity for an agency
hearing . . . .”11 Thus, for an adjudication to be considered “under” APA Section 554,
three conditions must be met. First, there must be an “adjudication.” Second, the
6 The statute, in relevant part, provides: “An agency that conducts an adversary
adjudication shall award, to a prevailing party other than the United States, fees and other
expenses incurred by that party in connection with that proceeding, unless the adjudicative
officer of the agency finds that the position of the agency was substantially justified or that
special circumstances make an award unjust.” 5 U.S.C. § 504(a).
7 We need not and do not reach the issue of whether the Agency’s position was
“substantially justified” or whether other “special circumstances” exist to make an award
unjust. If the Secretary agrees with us that these proceedings are subject to EAJA, those
are issues that must be addressed in the first instance by the ALJ.
8 5 U.S.C. § 504(b)(1)(C)(i); see also 29 C.F.R. § 16.102(b) (defining “adversary
adjudication” as “an adjudication under 5 U.S.C. 554 or other proceeding required by
statute to be determined on the record after an opportunity for an agency hearing . . . .”).
The Agency was and is represented by counsel from the Office of the Solicitor of Labor in
this case.
9 5 U.S.C. §§ 554, 556, 557.
10 Aageson Grain & Cattle v. U.S. Dep’t of Agric., 500 F.3d 1038, 1042 (9th Cir. 2007)
(quoting Ardestani v. Immigr. & Naturalization Serv., 502 U.S. 129, 135 (1991)).
11 5 U.S.C. § 554(a).

7
adjudication must be required by statute to be determined “on the record.” Third,
the statute must provide an “opportunity for an agency hearing.”
The H-2B statute at issue here provides, in relevant part, that if the
Secretary of Labor “finds, after notice and an opportunity for a hearing, a
substantial failure to meet any of the conditions of the petition to admit or
otherwise provide status to a nonimmigrant worker under [the H-2B program] or a
willful misrepresentation of a material fact in such petition,” the Secretary may
take appropriate remedial action.12 Thus, EAJA prongs one (adjudication)13 and
three (opportunity for a hearing)14 are clearly satisfied. The only question is
whether the adjudication is “determined on the record” (prong two).
2. Legislative History and Purpose of EAJA
In setting the stage for our discussion, we provide some useful background
regarding the purposes of EAJA, the overarching statute in play here, and the
societal forces which led to its enactment.15
The basic parameters of EAJA, which has been described as “one of the
broadest reaching, yet most obscure federal laws in existence,”16 can be summarized
12 8 U.S.C. § 1184(c)(14). The statute gives power over enforcement proceedings to the
Secretary of Homeland Security who, in 2009, delegated the Department of Labor its
investigative and enforcement authority. Labor Certification Process and Enforcement for
Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in
the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. 78020,
78046 (Dec. 19, 2008) (effective Jan. 18, 2009).
13 The APA defines an “adjudication” as an “agency process for the formulation of an
order.” 5 U.S.C. § 551(7). An “order” under the APA is “the whole or a part of a final
disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency
in a matter other than rule making but including licensing.” Id. § 551(6). H-2B enforcement
proceedings involve an “adjudication.” Graham & Rollins (ARB), ARB No. 2021-0047,
slip op. at 8.
14 See 8 U.S.C. § 1184(c)(14)(A) (providing for “an opportunity for a hearing”).
15 Indeed, we think exploring the legislative history and purpose of EAJA is
particularly important in this case, given the lack of any such meaningful discussion in the
Acting Secretary’s prior decision in Graham & Rollins, as discussed in more detail below,
infra Discussion Section 2.A.
16 For an in-depth review of the development and passage of the Act, see Lowell E.
Baier, Reforming the Equal Access to Justice Act, 38 J. LEGIS. 1, 2 (2012) (“The Equal
Access to Justice Act (EAJA) is one of the broadest reaching, yet most obscure federal laws
in existence. Its basic function is simple: in any case, be it in court or in an administrative

8
quickly. The Act provides that certain covered small entities may recover their
attorney’s fees and costs when prevailing against the government in an enforcement
action unless the government can show that its case was “substantially justified” or
“special circumstances” would make an award unjust.17 However, this basic
summary, while accurate, belies the intensity of the debate which led to enactment
of the Act in 1980, its reenactment in 1985, and the extensive litigation
underpinning many of the words used in the Act.
Current debates over the size of government and whether agencies have
become too powerful as compared to average citizens are hardly a recent
phenomenon. The APA was enacted in part because of the rise of the administrative
state under the New Deal and to set certain structures and procedures to govern the
seemingly ever-expanding number of agencies. However, the APA did not waive
sovereign immunity and therefore the regulated community remained subject to the
so-called “American rule” under which an entity, regardless of its size and no matter
how “outgunned” it might have been in comparison to agency resources, would have
to bear its own costs in litigation even where successfully challenging an agency
enforcement action.
In the late 1970s, there arose growing concern about the power of federal
agencies and the inability of small businesses to protect themselves against baseless
agency enforcement actions—simply because they could not afford the costs,
principally attorney’s fees, to defend themselves.18 As Justice Jackson had opined
earlier:
The rise of administrative bodies probably has been the
most significant legal trend of the last century and perhaps
more values today are affected by their decisions than by
those of all the courts, review of administrative decisions
agency proceeding, where the federal government's position is not substantially justified,
a prevailing party is entitled to receive attorneys’ fees, provided that there is no other
applicable fee-shifting statute. It is a safety net, designed to make sure that a party cannot
be harassed by unjustifiable government activity solely because of the prohibitive expense
of attorney’s fees, and it was originally passed to protect the small business community
from governmental overreach, just as earlier fee-shifting statutes were designed to promote
specific causes such as civil rights legislation.”).
17 5 U.S.C. § 504(a).
18 See generally Baier, supra note 16, at 4-20.

9
apart. They also have begun to have important
consequences on personal rights. They have become a
veritable fourth branch of the Government, which has
deranged our three-branch legal theories much as the
concept of a fourth dimension unsettles our three-
dimensional thinking.[19]
Senator Pete Domenici (R-NM), in describing the need for a precursor to
EAJA in December 15, 1977 Floor debates, noted:
The purpose of that amendment was to compensate the
average American and the small businessman for legal
costs in litigation to protect his rights. . . . Individuals
and small businessmen would no longer be forced to
knuckle under to arbitrary or capricious
interpretations and regulations, because they could
not afford to take the matter to court, or to challenge
the administrative action.[20]
The Senator also cited a Wall Street Journal article, stating:
The need for this legislation highlights a basic dilemma
which the United States faces along with the other
industrial democracies. Can we have a powerful national
Government to enforce the laws which protect public
health and safety and preserve competition in the
marketplace, while avoiding a Government which is
so powerful, intrusive, and arbitrary that it poses a
menace to individual and economic freedom.[21]
19 Fed. Trade Comm’n v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J.,
dissenting) (citation omitted).
20 123 CONG. REC. 39116 (Dec. 15, 1977) (emphasis added).
21 124 CONG. REC. 6999 (Mar. 15, 1978) (emphasis added).

10
Senator Gaylord Nelson (D-WI) similarly noted:
As Chairman of the Small Business Committee, I have long
been aware of the deep frustrations and resentment that
small business proprietors feel toward the Federal
bureaucracy and its regulatory apparatus. . . . The horror
stories coming out of our regulatory efforts are
becoming all too common. In case after case, a
Federal bureaucratic blitzkrieg has rolled over
innocent victims, causing unjustified damage to
large numbers of business enterprises and
individuals. . . . A small businessman facing what he
believes to be an unjust agency order will frequently find
that, given the protracted nature of agency proceedings
and the skyrocketing costs of legal counsel, it would cost
him more money even to win against the Government than
to accept the penalty. Inevitably in this situation, the
businessman is forced to pay the penalty, rather than fight
it, no matter how unjust the agency’s action might
have been. Such a result mocks our principles of
equal justice and due process. . . . Without legislation
like this, the possibility that the bureaucracy may enforce
its will in more and more questionable cases cannot be
discounted. . . . This idea of justice is also mocked by
the current situation when small businessmen
facing a fine or other penalty decide that compliance
is a preferable course to litigation, regardless of the
merits of the case, because of the costs involved.[22]
Senator Domenici again noted on January 31, 1979:
Individuals and small businesses are in far too many cases
forced to knuckle under to regulations even though
they have a direct and substantial impact because they
cannot afford the adjudication process. . . . The purpose of
the bill is to redress the balance between the Government
acting in its discretionary capacity and the individual. . . .
22 123 CONG. REC. 39117-18 (emphasis added).

11
It is to insure against capricious and arbitrary
Federal regulation.[23]
Senator Dennis DeConcini (D-AZ) stated:
Mr. President, in closing I would like to emphasize again
that the imbalance between the power of the
bureaucracy and the power of the American citizen
must be redressed. Congressional oversight alone will
never be a sufficient safeguard against regulatory abuse.
Individual citizens and small businesses, the
persons who bear the brunt of administrative
regulation, must be able to check arbitrary agency
actions by contesting them. Through the device of fee
shifting, this legislation will improve our citizens’ access to
courts and administrative proceedings. It will encourage
them to vindicate their rights and not to acquiesce in a
ruling or sanction which they believe arbitrary, misguided
or unfair.[24]
Similar feelings were expressed during the reauthorization of the Act in
1985, with Senator Domenici noting:
We have entered the age of Federal regulation and there
are very few elements of life, commercial or otherwise,
where the Federal Government does not play some role.
Often, this government action is arbitrary and capricious.
. . . They say that “You can’t fight city hall,” and the
prevailing attitude of many today is that even if you do
fight the Federal Government and win in court you still
lose because of the cost. We must eliminate the possibility
of such Pyrrhic victories. The average American must
be made to feel that he or she can question the
exercise of the Government’s discretionary power as
23 125 CONG. REC. 1437 (Jan. 31, 1979) (emphasis added).
24 Id. at 1439 (emphasis added).

12
to its reasonableness without incurring large costs if he
or she prevails.[25]
A key House Report noted:
In many cases, particularly in litigation with the
government, the [A]merican rule is in fact having the
opposite effect. For many citizens, the costs of securing
vindication of their rights and the inability to recover
attorney fees preclude resort to the adjudicatory process.
When the cost of contesting a government order, for
example, exceeds the amount at stake, a party has no
realistic choice and no effective remedy. In these cases, it
is more practical to endure an injustice than to contest it.
The deterrent effect created by this inability to recover fees
against the government is particularly disturbing in light
of the rapid growth in government regulations in recent
years. While the influence of the bureaucracy over all
aspects of life has increased, the ability of most citizens
to contest any unreasonable exercise of authority
has decreased. Thus, at the present time, the
government with its greater resources and expertise
can in effect coerce compliance with its position.
Where compliance is coerced, precedent may be established
on the basis of an uncontested order rather than the
thoughtful presentation and consideration of opposing
views. In fact, there is evidence that small businesses
are the target of agency action precisely because
they do not have the resources to fully litigate the
issue. This kind of truncated justice undermines the
integrity of the decisionmaking process.[26]
25 131 CONG. REC. 20353-54 (July 24, 1985) (emphasis added).
26 H.R. REP. NO. 96-1418, at 9-10 (1980) (House Committee on the Judiciary)
(emphasis added).

13
A subsequent 2015 Report by the House Committee on the Judiciary, looking back
on the history and purpose of EAJA, noted:
Civil litigation can become a war of attrition as parties
strategically try to deplete one another’s resources to force
a settlement. Fundamentally, EAJA recognizes the
enormous “disparity of resources between individuals,
small businesses and other organizations with limited
resources and the Federal Government.” This imbalance
could discourage a citizen from hiring counsel to challenge
abusive government policy or could induce a citizen
to settle a capricious civil or administrative
enforcement action on unfavorable terms. EAJA “is
meant to discourage the Federal Government from using
its superior litigating resources unreasonably—it is in
this respect an ‘anti-bully’ law.” Consequently, EAJA
is “probably is the most important” and also “among
the most litigated” of the Federal fee-shifting statutes.[27]
In sum, concerned with apparent abusive government overreach against
small entities ill-equipped to defend their rights, simply because of a lack of
resources, Congress then, on a bipartisan basis, enacted EAJA in 1980 (Pub. L. No.
96-481), thereby waiving sovereign immunity and requiring that an agency pay the
costs and other fees of a small entity when that entity prevails against the
government in an enforcement action, unless the government can show that its
position was substantially justified or that “special circumstances” would make an
award unjust. Because the Act contained a “sunset” expiration date, Congress
reauthorized the law in 1985 (Pub. L. No. 99-80), with some modest expansions,
again on a broad bipartisan basis.28
27 H.R. REP. NO. 114-351, at 2-3 (2015) (citations omitted) (emphasis added). The bill
was eventually incorporated into the Bipartisan Sportsman Act of 2015, S.405, 114th Cong.
§ 108 (2015), reinstating required reports on EAJA’s utilization by the U.S. Administrative
Conference.
28 Many cases discuss EAJA’s purposes and goals (but overlook the intensity of the
debate), but for two particularly good overviews, see Ibrahim v. U.S. Department of
Homeland Security, 912 F.3d 1147, 1166-67 (9th Cir. 2019), rev’g en banc 835 F.3d 1048
(9th Cir. 2016), and Metropolitan Van & Storage, Inc. v. United States, 101 Fed. Cl. 173,
182-84 (Fed. Cl. 2011). The lengthy court decision in Ibrahim paints a particularly

14
3. The H-2B Program and Graham & Rollins
The H-2B visa program allows employers to recruit and hire alien
nonimmigrants to perform temporary, nonagricultural labor or services in the
United States.29 Employers who wish to employ H-2B workers must submit an
Application for Temporary Employment Certification and, if approved, an I-129
Petition that will allow the workers to enter and work in the United States.30
The Administrator has been delegated enforcement responsibility for ensuring that
employers comply with the statutory and regulatory labor certification
requirements.31 This includes the power to impose administrative remedies,
including civil money penalties and debarment, for program violations.32
In 2011 and 2012, Graham and Rollins, Inc., applied to the Department of
Labor to recruit and hire employees under the H-2B program.33 In 2018—more than
a half of a decade later—the Administrator issued a Determination Letter finding
that Graham and Rollins failed to pay outbound transportation costs to H-2B
workers whose employment was terminated prior the end of their contract.34
The Administrator assessed $16,560 against Graham and Rollins for the alleged
violations.35
Graham and Rollins challenged the assessment, asserting that the
Administrator’s enforcement effort was untimely under the applicable statute of
limitations.36 The Administrator countered that no statute of limitations applied to
Kafkaesque journey through one individual’s efforts to recover costs under EAJA “[a]fter
the government engaged in years of scorched earth litigation.” Ibrahim, 912 F.3d at 1171.
29 8 U.S.C. § 1101(a)(15)(H)(ii)(b).
30 Id. § 1184(c)(1); 20 C.F.R. §§ 655.5, .15.
31 8 U.S.C. §§ 1184(c)(14)(A)-(B), 1103(a)(6); 20 C.F.R. § 655.2(b).
32 8 U.S.C. § 1184(c)(14)(A)(i), (B); 29 C.F.R. §§ 503.20, .23, .24.
33 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc. (Graham &
Rollins (ALJ)), ALJ No. 2018-TNE-00022, slip op. at 2-3 (ALJ June 26, 2018) (Decision and
Order Granting Employer’s Motion to Dismiss and Order Cancelling Hearing and Order
Dismissing Case).
34 Id. at 3-4.
35 Id. at 2.
36 Id.

15
its enforcement action.37 The ALJ and the ARB agreed with Graham and Rollins,
applied the five-year statute of limitations of 28 U.S.C. § 2462, and dismissed the
case.38
Graham and Rollins subsequently moved for attorney’s fees under EAJA.39
The Administrator opposed the request for fees, arguing that EAJA did not apply to
the H-2B proceedings and that, even if it did, the Department’s position was
substantially justified. The ALJ again agreed with Graham and Rollins, concluded
that EAJA applied to the H-2B proceedings, and determined that the Administrator
had not carried her burden to show that the Agency’s enforcement position was
substantially justified.40 The Administrator appealed the ALJ’s decision to the ARB.
As set forth above, for EAJA to apply, three conditions must be satisfied:
(1) there must be an adjudication, (2) the adjudication must be required by statute
to be determined “on the record,” and (3) the statute must provide an “opportunity
for an agency hearing.” The H-2B statutory enforcement provision applicable both
in this case and in Graham & Rollins provides that if the Secretary “finds, after
notice and an opportunity for a hearing, a substantial failure to meet” a
program obligation, the Secretary may bring an enforcement action for specified
remedies.41 There was no dispute in Graham & Rollins that the H-2B enforcement
proceedings constituted an adjudication (prong one) and provided an opportunity for
an agency hearing (prong three). As in the present case, the only question was
whether the adjudication was required to be determined “on the record.”42
In a divided decision, a two-Member Majority concluded that the H-2B
proceedings were required to be determined “on the record,” and, therefore, were
subject to EAJA.43 The Majority conducted an extensive and well-reasoned analysis.
37 Id.
38 Id. at 11; Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Graham & Rollins, Inc.,
ARB No. 2019-0009, ALJ No. 2018-TNE-00022, slip op. at 2 (ARB Nov. 16, 2020) (Decision
and Order). See also infra note 74 for further explanation of the statute of limitations issues
in play here.
39 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 3.
40 Id.
41 8 U.S.C. § 1184(c)(14)(A) (emphasis added).
42 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 8.
43 Id. at 8-15.

16
First, the Majority emphasized that it has been the consistent position of courts of
appeals that no “magic words” are necessary to conclude that an adjudication is
required to be determined on the record.44 Rather than focusing on the specific
language used in the statute, the inquiry instead focuses more broadly on whether
Congress intended for the agency to adhere to the requirements of the APA.45 Thus,
the absence of the words “on the record” from the statute was not determinative.
Turning to other indicia of congressional intent, the Majority explained that
Congress enacted the H-2B enforcement provisions in the backdrop of the APA’s
governing framework on agency adjudication.46 The Majority then provided a
thorough review of the history and purposes of the APA, with special reference to
the authoritative APA Manual.47 The Majority explained that under the APA,
quasi-judicial adjudications like these H-2B enforcement proceedings are presumed
to follow the formal procedures set out in APA Sections 554, 556, and 557 and are
presumed to be conducted “on the record.”48 With this fundamental backdrop, the
Majority concluded that there was no indication that Congress intended to go
against this weighty and longstanding presumption with the H-2B proceedings at
issue in the case.49
The Majority also explained that H-2B proceedings are consistent with the
type of quasi-judicial proceedings to which this fundamental presumption applies.50
The Majority observed that these proceedings are steeped in traditional
adjudicatory fact-finding and authorize the imposition of administrative remedies
against the violator, including civil money penalties and debarment.51 The Majority
cited courts of appeals cases that determined that these types of rights and
remedies were precisely the type of quasi-judicial proceeding for which the
adjudicatory procedures of the APA were intended.52
44 Id. at 9-10.
45 Id. at 10 (citations omitted).
46 Id. at 11.
47 Id. at 11-15.
48 Id. at 15.
49 Id.
50 Id. at 15-18.
51 Id. at 16, 18.
52 Id. at 17-18 (citations omitted).

17
One Member disagreed with the Majority (Concurrence).53 In concluding that
the H-2B proceedings did not need to be conducted “on the record,” the Concurrence
relied heavily on the principle of sovereign immunity, arguing that any waiver
thereof must be “strictly construed in favor of the United States.”54 This premise
influenced the remainder of the Concurrence’s opinion, leading her to conclude that
with the principle of sovereign immunity in mind, she could not decipher from the
language, context, or history of the H-2B enforcement provisions that Congress
clearly intended to require the proceedings to be determined on the record.55
In particular, the Concurrence noted the absence of “on the record” language in the
statute (despite agreeing with the Majority that magic words were not necessary)56
and compared the H-2B enforcement statute to other provisions of the INA that
expressly invoked APA section 554.57
On January 9, 2026, the Acting Secretary determined to undertake further
review of the Majority’s decision pursuant to sections 6(b)(2) and 6(c)(1) of
Secretary’s Order 01-2020.58 On August 9, 2023, the Acting Secretary issued a
Final Agency Decision and Order (FAD) reversing in part the Majority decision and
concluding that EAJA does not apply to the H-2B enforcement proceedings because
they are not required to be determined “on the record.”59
Like the Concurrence, the FAD led by leaning heavily into sovereign
immunity, calling it a “high threshold to clear” and stating that “any statutory
ambiguities are construed in favor of the government and against a waiver—both as
to whether Congress has waived immunity at all and as to the scope of any
53 The Concurrence disagreed with the Majority that EAJA applied to the proceedings,
but agreed with the Majority that, if it applied, the Administrator’s position was
“substantially justified,” so an award of fees was not warranted. Id. at 36 n.149.
54 Id. at 37-38 (citations omitted).
55 Id. at 38.
56 Id. at 38-39.
57 Id. at 39-42.
58 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).
59 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 6-17. The
Acting Secretary, like the Concurrence, agreed that if EAJA applied, the Administrator’s
position was substantially justified. Thus, the Acting Secretary affirmed the ARB in that
regard. Id. at 17-18.

18
waiver.”60 The Acting Secretary agreed with the Concurrence’s conclusion that there
was no clear indication that Congress intended to waive sovereign immunity and
apply the APA (or by extension EAJA) to these H-2B proceedings.61 Specifically, the
FAD stated that the text of the H-2B enforcement provision itself did not explicitly
require the proceedings to be conducted on the record (despite, like the
Concurrence, recognizing that no such magic words are necessary)62 and that there
was no other “textual evidence of Congressional intent,” including no other
statutory “procedural requirements” beyond the opportunity for a hearing.63
Like the Concurrence, the FAD also gave weight to the fact that other INA
provisions expressly invoked APA Section 55464 and rejected the Majority’s analysis
regarding the backdrop of the APA and the presumption that traditional quasi-
judicial hearings are presumed to be on the record.65
4. Morton Concessions and the Present Case
In 2014 and 2015, Morton Concessions applied to the United States
Department of Labor to recruit and hire employees under the H-2B program.66
The Administrator opened an investigation into Morton Concessions’ H-2B practices
in November 2014.67
Reminiscent of the Administrator’s severely delayed approach in
Graham & Rollins, more than five and a half years after opening the investigation,
the Administrator finally issued a determination letter on July 17, 2020, finding
that Morton Concessions failed to pay the required wage rate to six H-2B
employees.68 The Administrator assessed $21,390.40 in back wages and $633.11 in
60 Id. at 4-5 (citations omitted).
61 Id. at 16-17.
62 Id. at 6-8.
63 Id. at 8-10.
64 Id. at 8-9 (citations omitted).
65 Id. at 10-15.
66 Ruling on Respondent’s Motion to Dismiss at 1-2.
67 Administrator’s Opposition to Respondent’s Motion to Dismiss at 2.
68 Ruling on Respondent’s Motion to Dismiss at 2.

19
civil money penalties for the alleged violations.69 Morton Concessions challenged
the assessment and requested a hearing with an ALJ.70
On December 22, 2020, Morton Concessions filed a Motion to Dismiss,
arguing that the Administrator’s enforcement action was untimely because the
alleged violations occurred more than five years prior.71 Taking the same position it
took in Graham & Rollins, the Administrator argued that no statute of limitations
applied to its enforcement action.72 Alternatively, the Administrator argued that
even if a five-year statute of limitations applied, some of the cited violations
occurred within the five-year period.73
Like the ALJ in Graham & Rollins, the ALJ in this case determined that the
five-year statute of limitations in 28 U.S.C. § 2462 applied to the Administrator’s
assessments for back wages and civil money penalties.74 Thus, the ALJ granted
69 Id.
70 Id.
71 Id.
72 Id.
73 Id. at 2-3.
74 Id. at 4-7. One issue that pervades both Graham & Rollins and this case is the
question of what statute of limitations, if any, governs the Administrator in bringing an
enforcement action under the H-2B statute. All parties agree that the statute does not
contain any express limitation and thus the question revolves around 28 U.S.C. § 2462’s
five-year statute of limitations, which is typically applied if a specific enabling statute does
not contain its own statute of limitations. Section 2462 is not a model of clarity, and its
scope has been much litigated. The Administrator has consistently argued that Section
2462 has limited reach in H-2B enforcement cases and certainly does not govern an action
against an employer claiming “back pay” as a remedy—a phrase itself which has been
litigated as to its meaning. See Administrator’s Response in Opposition to Morton
Concessions’ Application for the Award of Fees and Expenses under EAJA at 20-24; see also
Graham & Rollins (ALJ), ALJ No. 2018-TNE-00022, slip op. at 5; Graham & Rollins (ARB),
ARB No. 2021-0047, slip op. 29-30, 32-36. This issue is not before us, but we bring it to the
Secretary’s attention as one which may arise in future litigation and arguably is in need of
close attention given the many well-established purposes of a statute of limitations to
“avoid stale claims, lost evidence, or faded memories, and the importance to the welfare of
society by promoting timely justice and stability in human affairs.” Carl S. Rauh & Olivia
A. Rauh, The Five-Year Statute of Limitations for Government Enforcement Actions for Civil
Penalties: Recently Settled and Still Unsettled Issues Regarding 28 U.S.C. Section 2462,
BUSINESS LAW TODAY (May 27, 2021), https://www.businesslawtoday.org/
2021/05/the-five-year-statute-of-limitations-for-government-enforcement-actions-for-civil-
penalties-recently-settled-and-still-unsettled-issues-regarding-28-u-s-c-section-2462/;
see also 3M Co. (Minn. Mining & Mfg.) v. Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994)

20
Morton Concessions’ Motion to Dismiss in part, concluding that all claims for
violations that occurred more than five years prior to the issuance of the
determination letter were untimely.75
After the ALJ’s ruling on the Motion to Dismiss, the Administrator filed a
Motion for Summary Decision as to the remaining violations. According to the
Administrator, Morton Concessions still owed $1,843.51, plus interest, in back
wages to five H-2B employees and $633.11 in civil money penalties for the remining
violations.76 Morton Concessions responded by agreeing to pay the back wages
assessment and $569.80 in civil money penalties and asked to withdraw its request
for a hearing.77 The ALJ granted Morton Concession’s request for withdrawal and
dismissed the case on August 26, 2011.78
On October 27, 2021, Morton Concessions applied to the ALJ for an award of
attorney’s fees and expenses under EAJA. The Administrator opposed the
application.
On January 18, 2022, the ALJ issued an Order Staying Proceedings. At the
time, Graham & Rollins was pending with the Board and the ALJ stayed these
proceedings pending the ARB’s decision.79 The ALJ briefly lifted the stay on
January 19, 2023, after the ARB issued its decision, before staying the case again
on March 7, 2023, after the Acting Secretary elected to review the ARB’s
Graham & Rollins decision.
After the Acting Secretary issued the FAD in Graham & Rollins, the ALJ
again lifted the stay in this case and invited supplemental briefing from the parties.
On April 1, 2024, the ALJ issued a Recommended Decision and Order (D. & O.),
(“The concern that after the passage of time evidence has been lost, memories have faded,
and witnesses have disappeared pertains equally to factfinding by a court and factfinding
by an agency.”) (internal quotations and citations omitted).
75 Ruling on Respondent’s Motion to Dismiss at 8.
76 Ruling on Respondent’s Motion to Withdraw Request for Hearing and Order
Dismissing Case at 2.
77 Id.
78 Id.
79 Order Staying Proceedings at 1-2.

21
concluding that the Acting Secretary’s FAD in Graham & Rollins precluded the
application of EAJA or the award of attorney’s fees in this case.80
Morton Concessions filed a Petition for Review with the Board on May 14,
2014.
JURISDICTION AND STANDARD OF REVIEW
The Secretary has delegated the authority to review this matter to the
Board.81 The Board acts with “all the powers [the Secretary] would have in making
the initial decision.”82
DISCUSSION
As the delegee of the Secretary of Labor, we are bound by the Secretary’s
decisions and precedent. Thus, the prior Acting Secretary’s decision in
Graham & Rollins compels us to affirm the ALJ’s decision that EAJA does not
apply to these H-2B enforcement proceedings.
However, the Secretary has the power and authority to revisit past
precedent. We strongly urge the Secretary to revisit the prior Acting Secretary’s
decision in Graham & Rollins. As explained in detail below, we believe the decision
improperly overemphasized sovereign immunity, failed to properly weigh and
consider evidence of Congressional intent and longstanding presumptions about the
applicability of the APA, and reached the wrong conclusion.
1. Graham & Rollins Compels Us to Affirm the ALJ
The Secretary of Labor created the Board and delegated it authority to act for
the Secretary in review of matters arising under specifically enumerated statutes,
including EAJA.83 The Board’s decisions are subject to review and reversal by the
80 D. & O. at 3-4.
81 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13186; 29 C.F.R. § 16.306.
82 5 U.S.C. § 557(b); Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 3
(citations omitted).
83 Secretary’s Order No. 02-1996 (Authority and Responsibilities of the Administrative
Review Board), 61 Fed. Reg. 19978 (May 3, 1996).

22
Secretary, who is ultimately responsible for issuing final agency decisions under
each of the enumerated statutes.84 In the delegations of authority to the Board, the
Secretary has made clear that the Board must “adhere to the rules of decision and
precedent applicable under each of the [enumerated] laws.”85 Likewise, when the
Secretary undertakes review of a Board decision and issues a final agency decision,
as in Graham & Rollins, “[t]he Secretary’s decision shall constitute final action by
the Department and shall serve as binding precedent on all Department employees
and in all Department proceedings involving the same issue or issues.”86 Simply
stated, we are bound by the Secretary’s decisions, even if we might disagree with
them.
In reversing in part the Majority’s decision in Graham & Rollins, the Acting
Secretary provided a clear holding: H-2B enforcement proceedings are not required
to be decided “on the record” and, therefore, are not subject to EAJA.87 This is the
exact issue presented in the present case and we are bound by the decision.
In an attempt to navigate around the FAD in Graham & Rollins, Morton
Concessions argues that the Acting Secretary was bound to follow, but never
properly analyzed or applied, controlling law of the Ninth Circuit Court of
Appeals.88 According to Morton Concessions, Ninth Circuit case law, including
specifically Marathon Oil Company v. Environmental Protection Agency,89 dictates a
different result and the Acting Secretary erred by failing to follow this precedent.90
Even if we agreed with Morton Concessions, we would nevertheless still be
bound by the Acting Secretary’s decision in Graham & Rollins. The holding that
H-2B enforcement proceedings are not subject to EAJA was clear and was not
84 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13187-88.
85 Id. at 13187; Secretary’s Order No. 02-1996, 61 Fed. Reg. at 19979.
86 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13188.
87 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 17-18.
88 Amended Brief of Employer-Respondent (Resp. Br.) at 6-10.
89 564 F.2d 1253 (9th Cir. 1977).
90 Resp. Br. at 7; Reply Brief of Employer-Respondent at 1.

23
limited to the Circuit in which that case arose.91 Because this case involves “the
same issue or issues,” we are bound by the decision.92
2. The Secretary Should Revisit Graham & Rollins
Although we are bound by the FAD in Graham & Rollins, we have serious
misgivings about that decision. Among other things, the decision did not review the
purposes of EAJA, gave extreme weight to sovereign immunity, rejected decades-
long presumptions surrounding quasi-judicial proceedings, and passed over what we
consider to be clear indicia in the nature of the H-2B enforcement proceedings that
indicate they were intended to be determined on the record.
The Secretary has the power and authority to revisit past precedent.93
We urge the Secretary to do so in this case. As stated above, we do not make this
recommendation lightly. Therefore, we provide a detailed analysis discussing our
views on the issue and the concerns we have with the Acting Secretary’s decision.
A. The Decision Did Not Give Due Consideration to the Purposes of EAJA
As an initial and fundamental matter, the Acting Secretary did not give due
(or any) weight to the purposes of EAJA in reversing the Majority in
Graham & Rollins. Above, we detailed the essential principles and purposes
underlying EAJA. Briefly restated, EAJA grew out of a growing concern over the
unequal positions of private litigants vis-à-vis an ever-expanding bureaucracy.
Private litigants—even those with meritorious defenses—found themselves
91 In its Petition for Review, Morton Concessions also argued that “[t]he Secretary
correctly concluded that the Ninth Circuit will award EAJA fees in H-2B enforcement
actions,” citing footnote 10 of the FAD. Petition at 2. We disagree with Morton Concessions’
interpretation of that footnote and the Acting Secretary’s holding. In that footnote, the
Acting Secretary referred to Marathon Oil, but concluded that as a non-EAJA case and in
light of her reading of other cases, it was not persuasive. Graham & Rollins (Acting
Secretary), ARB No. 2021-0047, slip op. at 14 n.10. Finding Marathon Oil unpersuasive is a
far cry from finding that the Secretary would have been forced to reach a different result
had the case arisen in the Ninth Circuit.
92 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13188; see Petition at 1 (identifying
the relevant issue as “[w]hether under Ninth Circuit case law, H-2B enforcement actions
fall within the scope of the Equal Access to Justice Act”).
93 Secretary’s Order No. 01-2020, 85 Fed. Reg. at 13187 (stating that the Board is
bound to follow rules of decision and precedent, “until and unless the Board or other
authority explicitly reverses such rules of decision or precedent”).

24
outmanned and overmatched when facing heavy-handed government enforcement
actions. The problems EAJA sought to address were magnified with the exponential
growth of the administrative state. This imbalance of power led to many ills.
Individuals and small businesses were rolled over by arbitrary or capricious
exercises of agency power, small businesses were unjustly compelled to pay
penalties rather than fight unfair government action in costly litigation, and small
businesses were specifically targeted for agency action precisely because they did
not have the resources to litigate. Thus, EAJA serves several important goals:
it reduces the disparity between individuals, small businesses, and other
organizations with limited resources vis-à-vis the federal government; it encourages
and reduces the hurdles for private parties to challenge unreasonable and
oppressive government behavior; and it deters unreasonable and heavy-handed
behavior by agencies, federal officials, and regulators. The concerns and goals giving
rise to EAJA in 1980 are, perhaps, more pressing and important today than ever
before.
The FAD in Graham & Rollins does not include any meaningful discussion of
the important purposes behind EAJA. The decision featured a hyper-technical
(and, in our view, misguided) statutory analysis, without addressing the context
and issues presented in the underlying case and the purposes of the relevant
statute. Any interpretation of the scope of EAJA must necessarily consider, as a
backdrop, the important purposes of that Act. Indeed, “[e]xamination of purpose is a
staple of statutory interpretation that makes up the daily faire of every appellate
court in the country.”94 The failure to discuss or apparently even consider the
purposes of EAJA necessitates further review by the Secretary in this case.
B. The Decision Gave Excessive Weight to Sovereign Immunity
While giving little or no weight to the purposes behind EAJA, the FAD at the
same time gave excessive weight to the principle of sovereign immunity. It is clear
that sovereign immunity heavily influenced—if not outright dictated—the
Concurrence’s and the Acting Secretary’s decisions in Graham & Rollins.
Both introduced their discussions by laying out the principles of sovereign
94 McCreary Cnty. v. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 861 (2005)
(citations omitted); accord Abramski v. United States, 573 U.S. 169, 179 (2014)
(“In [interpreting the statute], we must (as usual) interpret the relevant words not in a
vacuum, but with reference to the statutory context, structure, history, and purpose.”)
(internal quotations and citations omitted).

25
immunity and signaled the overwhelming weight they gave the doctrine.
For example, the Concurrence led her analysis by stating that when deciding
whether EAJA applied to H-2B enforcement proceedings, “we must remain mindful
that EAJA constitutes a partial waiver of sovereign immunity.”95 She then went on
to conclude that when “[c]onsidering the fundamental principles” of sovereign
immunity, there was not sufficient indicia that Congress intended to waive
sovereign immunity and apply EAJA in the H-2B context.96
The Acting Secretary leaned even heavier into the application of sovereign
immunity. The FAD began with a discussion of the “Governing Legal Framework”
by emphasizing the “elementary” and “crystal clear” principles of sovereign
immunity and noting the “high threshold” a litigant must overcome to demonstrate
that Congress intended to waive it—“both as to whether Congress has waived
immunity at all and as to the scope of any waiver.”97 With that preface, sovereign
immunity then featured in nearly every section of the legal analysis, including in
teeing up the general issues of the applicability of EAJA,98 in discussing the text of
the H-2B enforcement provision,99 in deemphasizing the longstanding presumption
regarding applicability of the APA in quasi-judicial proceedings,100 in discussing
what the Acting Secretary perceived as an ambiguity in the H-2B statute,101 and
even in distinguishing cases cited by the Majority.102 In fact, in the 18 page opinion,
“sovereign immunity” was referenced 44 times. As we read the FAD, the decision
gave sovereign immunity so much weight as to make it effectively determinative
and nearly impossible to overcome.
95 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 37.
96 Id. at 38.
97 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 4-5.
98 Id. at 5 (“Additionally, because EAJA constitutes a partial waiver of the United
States’ sovereign immunity . . . it must be strictly construed in favor of the United States.”)
(internal quotation and citation omitted).
99 Id. at 7 (“This principle [of plain text reading] applies with even greater force when
determining whether a statute waives sovereign immunity . . .”).
100 Id. at 11-12 (stating that such presumption is “contrary to bedrock sovereign
immunity principles,” that the APA Manual did not discuss sovereign immunity, and that
the APA Manual could not waive sovereign immunity).
101 Id. at 14-15 (concluding that in light of such ambiguity, there could be no waiver of
sovereign immunity).
102 Id. at 16 n.13.

26
While we do not disagree with many of the general statements of the law
with respect to sovereign immunity and the importance that doctrine has in our
legal system, we do disagree with the outsized and effectively decisive reliance the
FAD placed on sovereign immunity in that case. While it is generally true that
waivers of sovereign immunity must be clear, there is no doubt or ambiguity that
Congress waived sovereign immunity through EAJA.103 As outlined above, to
counteract growing overreach by the federal government and negate existing and
nearly insurmountable disincentives and disparities that discouraged (or outright
prevented) litigants, especially small businesses, from pursuing even the most
meritorious and just defenses against heavy-handed and unjustified government
action, Congress enacted EAJA. EAJA waived sovereign immunity, indicated
Congress’s intent to place the goal of incentivizing private parties to vindicate and
defend their rights ahead of preserving the federal treasury, and subjected the
government to liability for attorney’s fees in cases in which it could not
substantially justify its position.104 In invoking the general principle that statutory
ambiguities are construed in favor of retaining immunity, the decision singularly
focused on perceived ambiguities in the H-2B enforcement statute, without
acknowledging the proper starting point that EAJA itself provides a clear and
unambiguous waiver of sovereign immunity.
Furthermore, while we generally agree with the notion that courts should be
careful not to construe a waiver of sovereign immunity more broadly than Congress
intended, it is equally true that once Congress has waived sovereign immunity—as
it has clearly done with EAJA—courts “should be careful not to ‘assume the
authority to narrow the waiver that Congress intended.’”105 As we read the FAD in
103 See Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1125 n.3 (7th Cir.
2008); Aageson Grain & Cattle, 500 F.3d at 1045.
104 5 U.S.C. § 504(a).
105 Ardestani, 502 U.S. at 137 (quoting United States v. Kubrick, 444 U.S. 111, 118
(1979)); accord Internal Revenue Serv. v. Murphy, 892 F.3d 29, 40 (1st Cir. 2018)
(“We thus must be careful not to be more stinting in the interpretation of the provision than
its language requires, for just as the courts should not construe a waiver of sovereign
immunity more broadly than Congress intended, neither, however, should we assume the
authority to narrow the waiver that Congress intended.”) (internal quotations and citations
omitted); Five Points Rd., 542 F.3d at 1124 n.3 (“The Government contends, rightly, that
any such waiver must be strictly construed in favor of the United States. Nevertheless, once
Congress has waived sovereign immunity over certain subject matter, a court should be
careful not to assume the authority to narrow the waiver that Congress intended. As we
point out in our statutory analysis, here, Congress expressly has waived sovereign
immunity with respect to attorney’s fees and costs to a prevailing party in an adversarial

27
Graham & Rollins, the presumption in favor of preserving sovereign immunity was
nearly so strong and so fundamental to the analysis as to be effectively
insurmountable, even when Congress clearly expressed in EAJA that it intended to
waive sovereign immunity and subject the government to liability for unreasonable
litigation.
The Supreme Court has warned against over-relying on sovereign immunity
principles in assessing the applicability of EAJA. In Richlin Security Service Co. v.
Chertoff,106 a prevailing litigant sought to recover paralegal fees under EAJA, but
the government opposed its request.107 The Supreme Court ruled in favor of the
litigant, holding that the litigant could recover paralegal fees at prevailing market
rates.108 The Supreme Court stiffly rejected the government’s insistence that the
scope of EAJA must be narrowly construed in light of sovereign immunity:
“The sovereign immunity canon is just that—a canon of construction. It is a tool for
interpreting the law, and we have never held that it displaces the other traditional
tools of statutory construction.”109
Courts of appeals likewise have pushed back against agencies’ overreliance
on the principle that waivers of sovereign immunity should be strictly construed in
EAJA cases, particularly in light of the Supreme Court’s recent decision in
Loper Bright Enterprises v. Raimondo.110 As the Tenth Circuit recently explained:
That said, we may not resort to the sovereign immunity
canon at the first sign of any potential ambiguity in the text
as this would abdicate our responsibility to interpret the
statutes in front of us. Before turning to the canon, we must
adjudication under section 504.”) (internal quotations and citations omitted);
Aageson Grain & Cattle, 500 F.3d at 1045 (“Even Ardestani acknowledged, however, that
the Supreme Court has recognized that, once Congress has waived sovereign immunity over
certain subject matter, the Court should be careful not to assume the authority to narrow
the waiver that Congress intended. . . . [W]e shall not assume the authority to narrow
Congress’s waiver of sovereign immunity under the EAJA.”) (internal quotations and
citations omitted).
106 553 U.S. 571 (2008).
107 Id. at 574-75.
108 Id. at 577-80.
109 Id. at 589.
110 603 U.S. 369 (2024).

28
exhaust all traditional tools of statutory construction. . . .
Put differently, we cannot reflexively apply the sovereign
immunity canon to adopt an immunity-preserving
interpretation simply because that interpretation appears
plausible on preliminary review.[111]
The important principle that courts should be careful not to narrow the
waiver of sovereign immunity that Congress intended is especially important and
true in the context of EAJA. The purpose of narrowly construing waivers of
sovereign immunity is to “protect the public fisc and to provide breathing space for
legitimate Government action that might be deterred by litigation.”112 But, “these
purposes are already fulfilled by the EAJA’s requirement that even prevailing
parties may not be awarded fees unless the Government’s position lacked
substantial justification.”113 In other words, while waiving sovereign immunity,
EAJA also builds in important guardrails and restrictions on when a litigant can
prevail against the government and recover against the “sovereign,” thereby still
protecting the public fisc. 114 Narrowing the applicability of EAJA even further
111 Daley v. Ceja, 158 F.4th 1152, 1157 (10th Cir. 2025) (citing Loper Bright, 603 U.S. at
385; other internal quotations and citations omitted).
112 Ardestani, 502 U.S. at 147 (Blackmun, J., dissenting).
113 Id.
114 See, e.g., H.R. REP. NO. 96-1418, at 11 (“The standard [for determining whether
government action is substantially justified] should not be read to raise a presumption that
the government position was not substantially justified, simply because it lost the case.
Nor, in fact, does the standard require the government to establish that its decision to
litigate was based on a substantial probability of prevailing. Furthermore, the government
should not be held liable where ‘special circumstances would make an award unjust.’
This ‘safety valve’ helps to insure that the government is not deterred from advancing in
good faith the novel but credible extensions and interpretations of the law that often
underlie vigorous enforcement efforts. It also gives the court discretion to deny awards
where equitable considerations dictate an award should not be made.”). Importantly, these
limitations should quell any fear of opening the floodgates for attorney’s fees against the
government. What constitutes “substantial justification” under EAJA has been much
litigated and suffice it to say it is a defense often successfully asserted by the government.
See Kevin W. Brown, What constitutes substantial justification of government’s position so
as to prohibit awards of attorneys’ fees against government under Equal Access to Justice
Act (28 U.S.C.A. § 2412(d)(1)(A)), 69 A.L.R. Fed. 130 (annotating hundreds of cases). The
“special circumstances” proviso is much less litigated and intended to allow the government
to pursue novel but credible legal theories and allow consideration of equitable factors. In
the key case of Pierce v. Underwood, the Supreme Court (majority opinion authored by
Justice Scalia) rejected the petitioner’s argument that “substantial justification” should
mean “justified to a high degree” and opted for a test more favorable to the government of

29
through the overly rigid application of sovereign immunity principles is both
superfluous and plainly inconsistent with the Congressional intent behind the Act
because Congress already clearly built limiting guardrails into the Act.115
Finally, we believe the primacy given to sovereign immunity is especially
problematic given Congress’s apparent lack of concern with application of the
doctrine when passing EAJA. EAJA necessarily had to waive sovereign immunity
against the federal government to allow recovery of costs, and there is some
mention and recognition of a waiver of the so-called “American Rule” in the
legislative history behind the Act.116 Even so, a search of the legislative history and
a review of both the 1980 and 1985 enabling statutes finds little discussion of
“sovereign immunity,” much less any suggestion that the concept should be
regarded with paramount importance in restricting the interpretation of EAJA or
used as an interpretive rule in defining (mush less limiting) the scope of the Act.
“justified to a degree that would satisfy a reasonable person.” 487 U.S. 552, 565 (1988).
A more stringent test, less favorable to the government and favored by Justice Brennan,
was rejected. See id. at 578 (Brennan, J., concurring in part).
115 Ardestani, 502 U.S. at 147-48. We recognize that Justice Blackmun’s view did not
ultimately prevail in Ardestani. Nevertheless, as noted above, even the majority in that
case recognized the fundamental principle that once Congress has waived sovereign
immunity, courts “should be careful not to assume the authority to narrow the waiver that
Congress intended.” Id. at 137. The Acting Secretary relied on the Ardestani majority
decision, which she said stands for the proposition that the Supreme Court “rejected the
argument that EAJA applies to all ‘trial-type proceedings in which the Government is
represented,’” and which she says “foreclosed” the Majority’s arguments. Graham & Rollins
(Acting Secretary), ARB No. 2021-0047, slip op. at 11, 15. We read Ardestani to address a
different, less specific issue than the line of courts of appeals cases cited above.
In Ardestani, it appears that the plaintiff’s principal argument was that EAJA should apply
to all proceedings that were conducted like those defined in APA Section 554, even if they
were not specifically and technically “governed by” that section. Ardestani, 502 U.S. at 134
(“She thus contends that the phrase ‘under section 554’ encompasses all adjudications ‘as
defined in’ § 554(a), even if they are not governed by the procedural provisions established
in the remainder of that section.”). In other words, the Supreme Court had to decide the
meaning and reach of the phrase “under section 554” in EAJA. The narrower issue here and
in the cited courts of appeals cases, which were decided both before and after Ardestani,
is the application of the phrase “under section 554” (as defined by Ardestani) to the statutes
at issue. The Supreme Court in Ardestani did not reject the principle that courts can safely
presume that quasi-judicial proceedings were intended by Congress to be governed by APA
Section 554, absent an expression of congressional intent to the contrary. Thus, we disagree
that the Majority’s arguments in Graham & Rollins are “foreclosed” by Ardestani.
116 E.g., H.R. REP. NO. 96-1418, at 9-10.

30
To the contrary, the limited discussion in the legislative history suggests that
sovereign immunity was not intended as a bar to application of EAJA. For example,
in one hearing on the legislation and related other bills, Representative Robert
Kastenmeier (D-WI) stated:
However, since that time, it has come to our attention that
the United States, as a sovereign, is generally not liable for
attorneys’ fees even under the common law bad faith
exception. Also, although the United States may be liable
for attorneys’ fees under approximately 20 Federal
statutes, there are many other cases in which the United
States cannot be held liable absent a statute.
It is the purpose of all the pending bills to expand
the liability of the Federal Government in agency
proceedings and court actions.[117]
This statement confirms that Congress clearly intended to waive sovereign
immunity, while simultaneously providing no sense that that waiver should be
narrowly interpreted to limit the reach of EAJA or to undermine the protections of
the Act. While EAJA has not engendered widespread awards against agencies,
for reasons that have been much debated,118 it remains a clear expression of
congressional concern over the problems posed by a powerful administrative deep
state and the need to provide some avenue of relief for a small entity which
successfully proves its innocence in an enforcement action—and allows for that
relief by waiving sovereign immunity and permitting an award of attorney’s fees
and costs under certain conditions.
117 Award of Attorney Fees Against the Federal Government: Hearings Before the
Subcomm. on Courts, Civ. Liberties, & the Admin. of Justice of the Comm. on the Judiciary,
House of Representatives, 96th Cong. 1 (1980) (Statement of Rep. Robert Kastermeier).
In one other mention, Senator Domenici was very critical of the Department of Justice’s
(DOJ) apparent assertion of sovereign immunity in cases in which it pursued protracted
litigation “beyond common sense.” 125 CONG. REC. 5766 (Mar. 21, 1979).
118 See, e.g., Equal Access to Justice Reform Act of 2005: Hearing Before the Subcomm.
on Courts, the Internet, & Intell. Prop., Comm. on the Judiciary, House of Representatives,
109th Cong. (2006).

31
Thus, we believe it was improper to interpret the sovereign immunity waiver
encompassed in EAJA as narrowly or restrictively as the Acting Secretary did in
Graham & Rollins.
C. Congress Intended H-2B Enforcement Proceedings to be Decided on the
Record
When we strip away the undue weight given to sovereign immunity and
consider the fundamental purposes as expressed by Congress in passing EAJA, it
becomes clear, as the Majority decided in Graham & Rollins, that Congress
intended the H-2B enforcement proceedings to be determined “on the record.” While
we do not intend to restate the entirety of Majority’s opinion (which we believe is
thoroughly researched, well-reasoned, and legally correct, and which we endorse in
full), we believe it is important to emphasize critical points in the Majority’s
analysis, while at the same time addressing counterpoints in the Acting Secretary’s
analysis with which we do not agree. In short, despite the absence of the words “on
the record” in the H-2B enforcement statute, it is clear from the nature of the
proceedings and the longstanding and well-established presumptions about the
APA’s applicability to quasi-judicial proceedings that these H-2B enforcement
proceedings are precisely the type of proceedings to which the APA was intended to
apply.
i. Talismanic Statutory Language is Not Required
First, we cannot overstate the fundamental principle that the H-2B
enforcement statute need not use the words “on the record” or make explicit
reference to APA Section 554 to conclude that Congress intended for the
proceedings to be determined on the record.119 What counts instead, as the Majority
explained, is whether we or the Secretary can otherwise conclude that Congress
intended for the agency to adhere to the requirements of the APA.120
Federal courts, including the Supreme Court, hold this principle to be true
and have routinely found that statutes that do not contain such language are still
119 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 9-10.
120 Id. at 10 (citing St. Louis Fuel & Supply Co. v. Fed. Energy Regul. Comm’n, 890 F.2d
446 (D.C. Cir. 1989); Lane v. U.S. Dep’t of Agric., 120 F.3d 106 (8th Cir. 1997); Dantran,
Inc. v. U.S. Dep’t of Lab., 246 F.3d 36 (1st Cir. 2001); Aageson Grain & Cattle, 500 F.3d at
1046; Friends of the Earth v. Reilly, 966 F.2d 690, 692-95 (D.C. Cir. 1992)).

32
governed by the APA.121 Even cases that ultimately conclude that that the
proceedings are not governed by the APA—including some of those cited by the
Acting Secretary122—still recognize that such explicit language need not be present
and do not turn on the presence or absence of such talismanic language.123
121 E.g., Steadman v. S.E.C., 450 U.S. 91, 97 n.13 (1981) (“[T]he absence of the specific
phrase [‘on the record’] from [the statute] does not make the instant proceeding not subject
to § 554. . . . Rather, the ‘on the record’ requirement for [the statute] is satisfied by the
substantive content of the adjudication.”) (citations omitted); Union Pac. R.R. Co. v. Surface
Transp. Bd., 113 F.4th 823, 836 (8th Cir. 2024) (“In summary, the crucial question is not
whether particular talismanic language was used but whether the proceedings under
review fall within that category of quasi-judicial proceedings deserving of special procedural
protections.”) (internal quotations and citations omitted); Five Points Rd., 542 F.3d at 1126
(“The NAD statutes do not require expressly the hearing to be on the record; nonetheless,
Congress’ intent is clear. . . . [T]hose magic words need not appear for a court to determine
that formal hearings are required. Congress need only clearly indicate its intent to trigger
the formal, on-the-record hearing provisions of the APA.”) (internal quotations and citations
omitted); Dantran, 246 F.3d at 46 (“That the statute does not command a hearing ‘on the
record’—in the language of APA section 554—is of modest significance, as it has long been
recognized that the applicability of the APA does not turn on the presence or absence of the
precise words ‘on the record’ . . . . Rather, the resolution of this issue turns on the
substantive nature of the hearing Congress intended to provide.”) (internal quotations and
citations omitted); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.
1978) (“Both [statutes] provide for public hearings, but neither states that the hearing must
be ‘on the record.’ . . . At the outset we reject the position of intervenor PSCO that the
precise words ‘on the record’ must be used to trigger the APA. . . . Rather, we think that the
resolution of this issue turns on the substantive nature of the hearing Congress intended to
provide.”); Marathon Oil, 564 F.2d at 1262 (“Since [the statute] requires only an
‘opportunity for a public hearing’ and fails to specify that permit limitations must be
‘determined on the record,’ the EPA argues that the formal adjudicatory hearing provisions
of the APA are inapplicable. We disagree.”).
122 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8.
123 E.g., Friends of Earth, 966 F.2d at 693 (“The text [of the statute] requires only a
‘public hearing’; it does not expressly require either that the withdrawal hearing be ‘subject
to section 554’ or that the hearing be ‘on the record.’ Nevertheless, the absence of these
‘magic words’ is not dispositive.”) (citations omitted); St. Louis Fuel, 890 F.2d at 448-49
(“Our decision, we emphasize, does not turn, mechanically, on the absence of magic words.
What counts is whether the statute indicates that Congress intended to require full agency
adherence to all section 554 procedural components.”) (citations omitted); City of W. Chi. v.
U.S. Nuclear Regul. Comm’n, 701 F.2d 632, 641 (7th Cir. 1983) (“Although Section 554
specifies that the governing statute must satisfy the ‘on the record’ requirement, those
three magic words need not appear for a court to determine that formal hearings are
required.”) (citations omitted).

33
Dantran, Inc. v. United States Department of Labor is particularly instructive
on this point. In that case, after six years of litigation challenging the Department
of Labor’s attempt to bar them from government contracting for alleged violations of
the Service Contract Act (SCA), the plaintiff finally prevailed.124 The plaintiff then
sought recovery of attorney’s fees from the Department under EAJA.125 Similar to
the H-2B enforcement statute here, the SCA provided an opportunity for a hearing,
but did not specifically state that a determination had to be made “on the record.”126
The First Circuit Court of Appeals began its analysis by flatly rejecting the
notion that the absence of the words “on the record” dictated the outcome of the
case.127 To the contrary, the court found the absence of those magic words only “of
modest significance.”128 Instead, “the resolution of this issue turns on the
substantive nature of the hearing Congress intended to provide.”129 With this
fundamental principle in mind, the court determined that it had “no reason to doubt
that Congress intended this adjudication to be governed by standard APA
procedures.”130 As is the case here (and as discussed more fully below), the court
observed that the enforcement proceedings dealt with factual findings with the
potential for a “serious impact on private rights.” This was “exactly the kind of
quasi-judicial proceeding for which the adjudicatory procedures of the APA were
intended.131
Like federal courts, the Department of Labor itself has also determined that
the APA and EAJA apply to statutes that do not explicitly require determinations
“on the record” or refer explicitly to the APA. In 29 C.F.R. § 16.104, the Department
identifies several proceedings that the Agency has “deemed to be adversarial
124 Dantran, 246 F.3d at 38.
125 Id.
126 Id. at 45. The SCA provided: “Where the Secretary does not otherwise recommend
because of unusual circumstances, he shall, not later than ninety days after a hearing
examiner has made a finding of a violation of this chapter,” place the individual on the
debarment list. Id. (quoting 41 U.S.C. § 354(a)).
127 Id. at 46.
128 Id.
129 Id. (quoting Seacoast, 572 F.2d at 876).
130 Id.
131 Id. (citation omitted).

34
adjudications which are covered by” EAJA.132 Of the statutes listed, as least three
do not explicitly require the determinations to be made “on the record” or explicitly
invoke the APA.133 Even absent such magic words, the Department has still
determined the statutes must be determined “on the record.” The same should hold
true here.
The Majority and Concurrence in Graham & Rollins both agreed that the
absence of the words “on the record” or explicit reference to the APA was not
determinative.134 The Acting Secretary also agreed that the absence of such
language from the H-2B enforcement statute was not determinative.135 However, it
is clear from the remainder of the Acting Secretary’s analysis that, like the weight
afforded to sovereign immunity, the absence of the talismanic words was effectively
determinative in the decision.136 That approach was inconsistent with
overwhelming federal authority to the contrary and warrants reconsideration by the
Secretary in light of the other clear indicia of Congressional intent discussed below.
132 29 C.F.R. § 16.104(a). The regulation was last amended on July 9, 2007, prior to the
Department of Labor receiving authority over H-2B enforcement matters. Graham &
Rollins (ARB), ARB No. 2021-0047, slip op. at 6 n.19. Therefore, the H-2B enforcement
statute naturally does not appear on the list.
133 29 C.F.R. § 16.104(a)(5)(i) (citing 29 U.S.C. § 2936, which has since been repealed
(“[T]he applicant may request a hearing before an [ALJ].”)), (ii) (citing 26 U.S.C. § 3303(b)
(stating that the Secretary may not take action until “after reasonable notice and
opportunity for hearing”) and § 3304(c) (stating that the Secretary may not take action until
“after reasonable notice and opportunity for hearing”)), (iii) (citing 42 U.S.C. § 503(b)
(“Whenever the Secretary of Labor, after reasonable notice and opportunity for
hearing . . . .”)).
134 Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 9-10, 38-39.
135 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 7 (quoting
St. Louis Fuel, 890 F.2d at 448, for the proposition that “EAJA applicability ‘does not turn,
mechanically, on the absence of magic words.’”).
136 See id. at 6 (“[T]he majority failed give sufficient weight to the text of the INA . . . .”),
8 (“[I]n addition to the lack of any explicit ‘on the record’ language or provision
incorporating section 554 or the APA, there is no other textual evidence of Congressional
intent . . . to require the H-2B enforcement proceedings be conducted on the record or in full
compliance with section 554.”).

35
ii. H-2B Enforcement Proceedings Are Precisely the Type of Quasi-Judicial
Proceedings to Which the APA Was Meant to Apply
Rather than focusing on the presence or absence of specific talismanic
language or magic words, federal courts make clear that the relevant inquiry should
instead focus on the “substantive content of the adjudication” to determine whether
Congress intended for the proceedings to be determined on the record under the
APA.137 In conducting this analysis, courts look for certain hallmarks or
characteristics of what they refer to as “quasi-judicial proceedings.” For example,
courts consider whether the proceedings deal with disputes of fact or require
specific factual findings and whether the proceedings involve issues impacting
specific parties and private rights.138 When the adjudication at issue bears these
characteristics, courts presume that Congress intended for the proceedings to be
determined “on the record,” even if such language is missing from the statute.
For example, in Dantran, discussed above, the underlying proceedings
involved a government contractor seeking review of an administrative order
debarring the contractor from receiving government contracts for its alleged
violations of the SCA.139 The First Circuit stated that the applicability of the APA
“turns on the substantive nature of the hearing Congress intended to provide.”140
For the SCA proceedings, the court had “no reason to doubt that Congress intended
this adjudication to be governed by standard APA procedures,” because the
adjudication “involve[d] specific factual findings with potential for serious impact on
private rights.”141 The court concluded that this was “exactly the kind of quasi-
137 Steadman, 450 U.S. at 97 n.13; accord Union Pac., 113 F.4th at 836 (“Application of
the procedural safeguards [of the APA] ‘rests on the substantive character of the
proceedings involved,’ ‘[a]bsent congressional intent to the contrary.’ . . . A court’s inquiry
must be ‘focused on the nature of the administrative determination before [it].’”) (quoting
Marathon Oil, 564 F.2d at 1263-64); Seacoast, 572 F.2d at 876 (“Rather, we think that the
resolution of this issue turns on the substantive nature of the hearing Congress intended to
provide.”); Marathon Oil, 564 F.2d at 1264 (“In summary, the crucial question is not
whether particular talismanic language was used but whether the proceedings under
review fall within that category of quasi-judicial proceedings deserving of special procedural
protections.”) (citations omitted).
138 E.g., Union Pac., 113 F.4th at 836; Dantran, 246 F.3d at 46; Seacoast, 572 F.2d at
876; Marathon Oil, 564 F.2d at 1261.
139 Dantran, 246 F.3d at 38.
140 Id. at 46 (citation omitted).
141 Id. (internal quotations and citation omitted).

36
judicial proceeding for which the adjudicatory procedures of the APA were
intended.”142
The First Circuit reached a similar result in an earlier case, Seacoast v. Anti-
Pollution League v. Costle, dealing with a party’s application to the EPA for a
permit to discharge pollutants.143 Like in Dantran, the First Circuit determined
that Congress intended the APA to apply to the proceedings, despite the absence of
the words “on the record” from the applicable statute, because “the resolution of this
issue turns on the substantive nature of the hearing Congress intended to
provide.”144 The proceedings required the agency decisionmaker to “make specific
factual findings about the effects of discharges from a specific point source,” and to
determine whether to grant permits to a specific applicant based on these
findings.145 Additionally, the decision would “not make general policy,” and “[o]nly
the rights of the specific applicant will be affected.”146 Further, “the factual
questions involved in the issuance of [the permits] will frequently be sharply
disputed.”147 Based on these characteristics, the court determined that “[t]his is
exactly the kind of quasi-judicial proceeding for which the adjudicatory procedures
of the APA were intended.”148
142 Id. (internal quotations and citations omitted). The Acting Secretary attempted to
distinguish Dantran because the First Circuit also considered the fact that “the APA is
indirectly made applicable by statute” through a chain of cross-references to another
statute. Id. at 47; see also Graham & Rollins (Acting Secretary), ARB No. 2021-0047,
slip op. at 8. However, the fact that the court was also able to patch together a
“chain of relationship” pointing to the applicability of the APA does not detract from
Dantran’s central thesis that “the resolution of this issue turns on the substantive nature of
the hearing Congress intended to provide.” Dantran, 246 F.3d at 46 (internal quotations
and citations omitted).
143 572 F.2d at 874.
144 Id. at 876.
145 Id.
146 Id.
147 Id.
148 Id. As the Acting Secretary noted in Graham & Rollins, the First Circuit later
rejected a party’s reliance on Seacoast in Dominion Energy Brayton Point, LLC v. Johnson,
443 F.3d 12 (1st Cir. 2006). See Graham & Rollins (Acting Secretary), ARB No. 2021-0047,
slip op. at 14 n.10. However, the First Circuit in Dominion Energy stated that it “in no way
disparage[d] the soundness of Seacoast’s reasoning,” but was compelled to adopt the
agency’s new, conflicting interpretation because the Supreme Court had since decided
Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Dominion

37
The Ninth Circuit likewise concluded in Marathon Oil that the nature of the
proceedings, rather than the words of the statute, determined whether Congress
intended for formal APA procedures to apply. In that case, the underlying
proceedings dealt with limitations placed by the EPA on applicants’ permits with
respect to offshore oil platforms.149 Once again, although the statute provided an
opportunity for a hearing, it did not explicitly reference the APA or clearly signal
that determinations had to be made “on the record.”150 The EPA argued that the
absence of the words “on the record” signaled that the formal hearing provisions of
the APA were inapplicable.151 The Ninth Circuit disagreed, reasoning that the
determination of whether the APA applied “does not rest on the presence or absence
of the magical phrase ‘on the record.’” Instead, “[a]bsent congressional intent to the
contrary, it rests on the substantive character of the proceedings involved.”152
In reaching this conclusion, the court explained that “Congress recognized
that certain administrative decisions closely resemble judicial determinations and,
in the interest of fairness, require similar procedural protections” under the APA.153
“These ‘quasi-judicial’ proceedings determine the specific rights of particular
individuals or entities. And, like judicial proceedings, the ultimate decision often
turns, in large part, on sharply-disputed factual issues.”154 These classic
adjudications are “precisely the category of proceedings Congress sought to address
in the APA.”155
The Eighth Circuit recently conducted the same analysis in Union Pacific
Railroad v. Surface Transportation Board, dealing with adjudications of rate
disputes between shippers and rail carriers.156 Once again, the statute called for an
Energy, 443 F.3d at 18. As discussed infra page 45, the Supreme Court has since
overturned Chevron, so Seacoast’s reasoning should still stand in the First Circuit.
149 Marathon Oil, 564 F.2d at 1256.
150 Id. at 1262.
151 Id.
152 Id. at 1263.
153 Id. at 1261.
154 Id.
155 Id. at 1264.
156 113 F.4th at 828.

38
opportunity for a hearing, but did not explicitly state that the adjudication had to be
determined “on the record.”157 Citing heavily to Marathon Oil, the court confirmed
that its inquiry must be “focused ‘on the nature of the administrative determination
before [it],’” rather than on the presence or absence of magic words.158 Considering
the nature of the proceedings, the court determined that the agency adjudicator was
“engaging in ‘an agency process leading to a final disposition’ of the parties’ rate
dispute,” signaling that Congress intended formal APA procedures to apply.159
These proceedings that bear the characteristics of traditional judicial
adjudications can be contrasted with other, less formal adjudications and other
proceedings that do not warrant the same presumption regarding the applicability
of formal APA procedures. For example, in Friends of the Earth v. Reilly, the Court
of Appeals for the D.C. Circuit considered proceedings to withdraw a state’s
authorization to administer a hazardous waste program.160 Consistent with
Dantran, Seacoast, Marathon Oil, and Union Pacific, the court in Friends of the
Earth opined that “it is the nature of the issues to be resolved in the [ ] proceeding
which is determinative” of whether Congress intended the APA to apply.161
The court explained that “a section 554 hearing, with its attendant
procedural protections, has as its primary purpose the determination of
‘adjudicative facts,’ i.e., those facts which ‘usually answer the questions of who did
what, where, when, how, why, with what motive or intent . . . [and] are roughly the
kind of facts that go to a jury in a jury case.’”162 In contrast, the withdrawal
proceedings at issue in that case primarily involved legal issues and issues best
classified as involving “legislative facts”—“those ‘general facts which help the
tribunal decide questions of law and policy.’”163 Thus, the proceedings were not the
type of quasi-judicial proceedings for which courts presume Congress intended APA
Section 554 to apply.
157 Id. at 836.
158 Id. (quoting Marathon Oil, 564 F.2d at 1264).
159 Id. (quoting Marathon Oil, 564 F.2d at 1263).
160 966 F.2d at 691.
161 Id. at 693 (citation omitted).
162 Id. (quoting Kennth Culp Davis, Administrative Law Treatise § 12.3, at 413 (2d ed.
1979)).
163 Id. at 693-94 (quoting Davis § 12.3, at 413).

39
An earlier case from the Third Circuit Court of Appeals, Bell Telephone
Company v. Federal Communications Commission, applied similar reasoning.164
In that case, the court considered whether the statute at issue, dealing with a
requirement for telephone companies to provide certain communication services and
facilities to other carriers, required an evidentiary hearing under the APA.165
Analyzing the nature of the issues involved in the proceedings, the court
determined that an APA evidentiary hearing was not required.166 “When an
administrative agency develops a general policy applicable on a prospective basis,
courts have found it unnecessary to require evidentiary hearings” under the APA.167
The court specifically contrasted the issues there dealing with the implementation
of “a new policy based upon the general characteristics of an industry,” with more
traditional “[a]djudicatory hearings . . . when the agency bases its decision on the
peculiar situation of individual parties who know more about this than anyone
else.”168 Whereas the former are not subject to the APA, the latter are.
All of these cases—many of which were already cited in Graham & Rollins—
consistently and abundantly make clear that when Congress enacts statutes
providing for proceedings that bear the hallmarks of traditional judicial
adjudications, including proceedings dealing with the rights of particular
individuals or entities and decisions that turn on disputed factual issues, Congress
presumes that the hearings will be conducted “on the record” in accordance with the
formal procedures of the APA. In contrast, when the proceedings deal with
164 503 F.2d 1250 (3d Cir. 1974).
165 Id. at 1253-54, 1264.
166 Id. at 1266.
167 Id. (citations omitted).
168 Id. at 1266-67. The FAD appears to have selectively quoted Bell Telephone, stating
“[t]he phrase ‘opportunity for hearing’ lacks the reference to a ‘record’ necessary to trigger
the evidentiary requirements of the [APA].” Graham & Rollins (Acting Secretary), ARB No.
2021-0047, slip op. at 13-14 (quoting Bell Tel., 503 F.2d at 1264). In context, it is clear that
the reason the Third Circuit reached this result is because the adjudication in the case did
not bear the classic characteristics of a typical quasi-judicial adjudication; therefore,
consistent with the presumption proffered above, more explicit reference to “on the record”
proceedings was necessary to trigger application of the APA. Indeed, the Third Circuit cited
United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973), and United States v.
Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972), both of which dealt with rulemaking, as
opposed to traditional quasi-judicial adjudication, and both of which suggested that
traditional quasi-judicial adjudication would not need the same “on the record” language to
trigger the APA. See infra note 183.

40
questions of law or policy, “legislative facts,” or only apply prospectively,
Congress must state more clearly if it intends for APA Section 554 to apply.169
As the Majority in Graham & Rollins took great care to explain, this basic
dichotomy between quasi-judicial proceedings and other, less formal adjudications
and rulemaking, is important and consistent with longstanding interpretations and
presumptions about the APA dating back nearly 80 years, or more.170 Not long after
the APA was passed in 1946, the Attorney General issued the APA Manual in 1947,
providing a definitive and thorough examination of the APA, its purposes, and its
legislative history. Consistent with Dantran, Seacoast, Marathon Oil, Union Pacific,
Friends of the Earth, and Bell Telephone, the APA Manual clearly explains when
“on the record” language is needed to trigger the APA and conversely when it is
assumed by Congress that the APA applies to the proceedings even in the absence
of such language. In rulemaking and non-traditional or residual “fringe”
adjudication, for example, Congress must include specific language that the
proceedings must be determined “on the record” or otherwise expressly invoke the
APA for the APA’s procedural requirements to attach. In contrast, Congress
presumes that traditional quasi-judicial proceedings, like the H-2B enforcement
proceedings here, are governed by the APA even in the absence of such language:
It is believed that with respect to adjudication the specific
statutory requirement of a hearing, without anything
more, carries with it the further requirement of decision on
169 To be clear, we do not read the words “on the record” out of the statute or otherwise
consider them surplusage or meaningless. See Graham & Rollins (Acting Secretary),
ARB No. 2021-0047, slip op. at 10 n.6. As the Majority carefully explained, the legislative
history of the APA explains when and why more precise or explicit “on the record” language
is needed when dealing with rulemaking or less formal adjudication. Graham & Rollins
(ARB), ARB No. 2021-0047, slip op. at 11-15; see also Seacoast, 572 F.2d at 877 (“Our
holding does not render the opening phrases of s 554 of the APA meaningless. We are
persuaded that their purpose was to exclude governmental functions . . . which traditionally
have never been regarded as adjudicative in nature . . . . Without some kind of limiting
language, the broad sweep of the definition of ‘adjudication’, defined principally as that
which is not rule making, 5 U.S.C. s 551(6), (7), would include such ordinary procedures
that do not require any kind of hearing at all.”) (citations and quotations omitted).
170 Our concurring colleague provides a robust, incredibly thorough examination of the
history and passage of the APA dating back even further. His analysis shows that with the
passage of the APA, lawmakers intended that if Congress mandated a hearing for
adjudications, then the agency’s decision would be decided based on the record developed at
the hearing.

41
the basis of the evidence adduced at the hearing. With
respect to rule making, it was concluded, supra, that a
statutory provision that rules be issued after a hearing,
without more, should not be construed as requiring agency
action “on the record,” but rather as merely requiring an
opportunity for the expression of views. That conclusion
was based on the legislative nature of rule making, from
which it was inferred, unless a statute requires otherwise,
that an agency hearing on proposed rules would be similar
to a hearing before a legislative committee, with neither
the legislature nor the agency being limited to the material
adduced at the hearing. No such rationale applies to
administrative adjudication. In fact, it is assumed that
where a statute specifically provides for administrative
adjudication (such as the suspension or revocation of a
license) after opportunity for an agency hearing, such
specific requirement for a hearing ordinarily implies the
further requirement of decision in accordance with
evidence adduced at the hearing. H.R. Rep. p. 51, fn. 9 (Sen.
Doc. p. 285).[171]
Courts like the First Circuit in Dantran and Seacoast recognize the APA Manual’s
authoritative analysis in assessing Congress’s intent.172
Here, there is no question that the H-2B enforcement proceedings bear the
same characteristics and hallmarks of quasi-judicial proceedings as Dantran,
Seacoast, Marathon Oil, and Union Pacific and as recognized in the APA Manual.
171 APA Manual at 42-43; accord id. at 33 (stating certain statutes “rarely specify in
terms that the agency action must be taken on the basis of the ‘record’ developed in the
hearing;” however, when agency action follows a hearing required by statute, the “agencies
themselves and the courts have long assumed that the agency’s action must be based upon
the evidence adduced at the hearing”), 42 (“Other statutes authorizing agency action which
is clearly adjudicatory in nature, such as the revocation of licenses, specifically require the
agency to hold a hearing but contain no provision expressly requiring decision ‘on the
record’. . . . [Agencies] ha[ve] always assumed that these orders must be based upon the
evidentiary record made in the hearing, and the courts have held that upon review the
validity of an order issued under the [enabling act] must be determined upon the
administrative record. It seems clear that administrative adjudication exercised in this
context is subject to sections 5, 7 and 8 [APA Sections 554, 556, 557].”) (citations omitted).
172 Dantran, 246 F.3d at 46; Seacoast, 572 F.2d at 877.

42
As the Majority explained in Graham & Rollins, these proceedings involve disputed
issues of fact that impact the rights of specific parties.173 The Administrator
penalizes specific employers for alleged violations of H-2B program requirements.
The proceedings are fact-intensive and often involve heavily disputed factual
questions—whether the employer engaged in the behavior of which it is accused,
and whether such behavior violates the program regulations. The proceedings are
also constrained to the specific entities named in the action and address only past
alleged violations—the decisions reached by the agency are not prospective, do not
dictate or create matters of general policy, and, though they have precedential
value, do not specifically address the rights or responsibilities of any other entity
outside of the adjudication. The proceedings also carry significant and immediate
economic consequences for the specific entities involved, including repayment of
wages, payment of civil money penalties, and debarment. Thus, the H-2B
enforcement proceedings are “exactly the kind of quasi-judicial proceeding for which
the adjudicatory procedures of the APA were intended.”174
In the FAD, the Acting Secretary stated that she “disagree[d] with the
majority that caselaw under EAJA supports a conclusion that Congress intended for
H-2B enforcement proceedings to be covered by EAJA because they are ‘quasi-
judicial.’”175 She likewise proffered that “courts have generally rejected the majority
and Respondent’s argument that a statutorily required adjudicative hearing is
presumptively ‘on the record.’”176
The FAD largely disregarded or attempted to distinguish the cases cited
above, citing instead other cases, none of which, in our view, undercut the
longstanding fundamental principles and presumptions articulated above. First, the
decision cites Crestview Parke Care Center v. Thompson.177 In that case, the Centers
for Medicare and Medicaid imposed a civil money penalty on a nursing facility as a
sanction for violations of regulations.178 The nursing facility requested a hearing
before an ALJ to dispute the penalty.179 Unlike here, the statute at issue in that
173 See Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 18.
174 See Dantran, 246 F.3d at 46 (internal quotations and citations omitted).
175 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 15.
176 Id. at 13.
177 373 F.3d 743 (2004).
178 Id. at 744.
179 Id.

43
case required the agency to hold a hearing “on the record.” Because the statute
included the words “on the record,” the Sixth Circuit concluded that the statute
expressly “invoke[d] the panoply of procedures described by the formal-adjudication
provisions of the APA.”180
In dicta, the Sixth Circuit also proffered that “[t]he Supreme Court has also
implied that formal adjudication procedures are only necessary when a statute uses
the magic words ‘on the record,’” citing United States v. Florida East Coast
Railway.181 Florida East Coast Railway dealt with agency rulemaking, rather than
adjudication.182 As discussed above, the presumptions are radically different in the
two contexts—while “magic words” may be necessary in the rulemaking context to
signal adherence to the APA, they are not required in traditional adjudication, as
all of the courts of appeals cases cited above indicate and as even the Acting
Secretary acknowledged in Graham & Rollins. Indeed, the Supreme Court
suggested as much in Florida East Coast Railway and a subsequent case, United
States v. Allegheny-Ludlum Steel Corporation, with both stating that the decisions
turned on the specific fact that the agency action at issue was rulemaking and that
the outcome would differ for cases involving adjudication.183 Thus, the Sixth
Circuit’s statement is inconsistent with the weight of federal authority, including
the very case it cited for the proposition.
180 Id. at 748.
181 Id.
182 Fla. E. Coast Ry., 410 U.S. at 231.
183 In Florida East Coast Railway, the Supreme Court concluded the statute which
required action “after hearing,” was not required to be decided on the record under the
APA. However, the case involved rulemaking, and the Supreme Court recognized that the
term “hearing” “undoubtedly has a host of meanings,” which “undoubtedly will vary,
depending on whether it is used in the context of a rulemaking-type proceeding or in the
context of a proceeding devoted to the adjudication of particular disputed facts.” Id. at 239.
The Court also took care to discuss “[t]he basic distinction between rulemaking and
adjudication,” and distinguish another case because it involved “a ‘quasi-judicial’ proceeding
of a quite different nature form the one we review here.” Id. at 244. In Allegheny-Ludlum
Steel, the Supreme Court likewise concluded another statute, which required action “after
hearing,” was not required to be decided on the record under the APA. However, the case
again involved rulemaking, and the Supreme Court again took care to distinguish between
rulemaking and adjudication. Allegheny-Ludlum Steel Corp., 406 U.S. at 757.

44
Next, the FAD cited Chemical Waste Management, Inc. v.
U.S. Environmental Protection Agency184 and Dominion Energy Brayton Point, LLC
v. Johnson.185 In both cases, the courts of appeals determined that statutes that
required proceedings to be conducted after a “hearing,” without explicit reference to
whether the proceedings needed to be determined “on the record,” did not trigger
the APA.186 However, both cases turned on Chevron U.S.A. v. Natural Resources
Defense Council,187 under which courts deferred to federal agencies’ reasonable
interpretations of ambiguous statutes.188 Citing Chevron, the courts in both cases
deferred to agency interpretations that the statutes did not trigger the APA’s
procedural requirements.
Significantly, the Supreme Court expressly and firmly overturned Chevron in
2024’s Loper Bright Enterprises v. Raimondo.189 In that decision, the Court held
that rather than deferring to agency interpretations, “[c]ourts must exercise their
independent judgment in deciding whether an agency has acted within its statutory
authority.”190 Thus, the reasoning of Chemical Waste Management and Dominion
Energy no longer stands and the cases cannot undermine the weight of authority
discussed above.191
Finally, the FAD cited City of West Chicago v. U.S. Nuclear Regulatory
Commission.192 Consistent with the many cases cited above, the Seventh Circuit
184 873 F.2d 1477 (D.C. Cir. 1989).
185 443 F.3d 12 (1st Cir. 2006).
186 Chem. Waste Mgmt., 873 F.2d at 1480-82; Dominion Energy, 443 F.3d at 14-17.
187 467 U.S. 837 (1984).
188 Chem. Waste Mgmt., 873 F.2d at 1480-82; Dominion Energy, 443 F.3d at 14-17.
189 603 U.S. 369 (2024).
190 Id. at 412.
191 In Loper Bright, the Court explained that Chevron incorrectly “demand[ed] that
courts mechanically afford binding deference to agency interpretations, even those that
have been inconsistent over time. Still worse, it forces courts to do so even when a pre-
existing judicial precedent holds that the statute means something else . . . .” Loper Bright,
603 U.S. at 399 (emphasis original). Dominion Energy provides a quintessential example of
this concern in action. In that case, the EPA had previously required formal evidentiary
hearings consistent with the APA via regulation. After Chevron, though, the EPA amended
the regulations to remove the evidentiary hearing requirement and cited Chevron to compel
the court to defer to its new interpretation. Dominion Energy, 443 F.3d at 15.
192 701 F.2d 632 (7th Cir. 1983).

45
recognized in that case that the statute need not include the “magic words” of “on
the record” for Congress to have intended for formal hearings under the APA to
apply.193 Like the cases above, the Seventh Circuit also recognized the distinction
between formal adjudication and informal adjudication.194 Even so, the Seventh
Circuit ultimately concluded it could not discern “evidence that Congress intended
to require formal hearings” under the statute at issue.195 Notably, though, the
Seventh Circuit did not carefully review the characteristics of the nature of the
proceedings in determining whether the APA applied to the statute and proceedings
at issue. As a result, the Seventh Circuit’s analysis diverges markedly from its
sister courts discussed above.196
Accordingly, we believe the longstanding and well-established presumptions
articulated by the Majority in Graham & Rollins dictate the conclusion that
Congress intended for these proceedings to be governed by the APA and decided on
the record.
D. The Decision Gave Undue Weight to Language Contained in Other
Provisions of the INA
In concluding that Congress did not intend to require that H-2B enforcement
proceedings be conducted on the record, the Acting Secretary, like the Concurrence,
observed that unlike the H-2B enforcement provision, “‘several of the other
193 Id. at 641.
194 Id. at 644.
195 Id. at 645.
196 Elsewhere, the FAD also cited St. Louis Fuel in support of the proposition that
“in cases where the statutory provisions at issue does not demonstrate intent to apply all of
section 554’s required procedures, courts have concluded that EAJA does not apply.”
Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8. Consistent with
Dantran, Seacoast, Marathon Oil, Union Pacific, and the other cases cited above, the court
in St. Louis Fuel recognized that the “absence of magic words” was not determinative.
St. Louis Fuel, 890 F.2d at 448. However, the statute at issue there provided specific
procedural requirements that “provide[d] something less than APA section 554 mandates.”
Id. at 449. Indeed, legislative history confirmed that the statute was intended to “afford[ ]
a little bit less opportunity for a full adjudicatory type hearing than is afforded by the
Administrative Procedure Act.” Id. Thus, Congress clearly did not intend for the APA to
apply to the proceedings. Here, in contrast, there are no separately identified minimum
procedural requirements that would suggest “something less than APA section 554
mandates.” If anything, the absence of alternative procedural requirements suggests that
Congress instead intended for APA Section 554 to apply.

46
enforcement provisions Congress added elsewhere to the INA, both before and after
the 2005 enactment of the H-2B enforcement provisions,’ do ‘expressly invoke and
incorporate APA section 554.’”197 The Acting Secretary then cited to selected
provisions governing the employment of unauthorized migrants, a provision
governing document fraud, and a provision governing international marriage
brokers, as well as certain enforcement provisions under the H-1B, H-1B1, and E-3
programs.198 Citing the Supreme Court’s decision in Russello v. United States,199
the Acting Secretary stated that “[t]hese INA provisions demonstrate that when
Congress intends for an immigration enforcement proceeding to be subject to section
554’s procedures for formal adjudications, it is aware of the language it can use to
make such intent clear.”200
We disagree. The canon applied by the Supreme Court in Russello logically
depends on the provisions in question being very closely aligned and being drafted
in close temporal proximity. To be sure, it may be a valid interpretive presumption
in certain cases like Russello, where the reviewing court can confirm that Congress
was careful and deliberate in drafting disparate pieces of legislation.201 However,
this presumption does not apply when the sections are dissimilar, with different
language and different formulations addressing different circumstances;202 when
there are examples or proof of inexact drafting in the statute;203 when there are
alternative explanations for a difference in statutory language;204 when the
provisions are not enacted or considered simultaneously;205 or when the provisions
197 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 8 (quoting
Graham & Rollins (ARB), ARB No. 2021-0047, slip op. at 39) (emphasis original).
198 Id. at 8-9.
199 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one
section of a statute but omits it in another . . . , it is generally presumed that Congress
act[ed] intentionally and purposely.”).
200 Graham & Rollins (Acting Secretary), ARB No. 2021-0047, slip op. at 9.
201 Russello, 464 U.S. at 22-24.
202 Reichert v. Kellogg Co., Nos. 24-1442, 5945, 2026 WL 734673, at *10 (6th Cir. Mar.
16, 2026).
203 Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Lab., 776 F.3d 157, 165
(3d Cir. 2015).
204 Gormon v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1156 (9th Cir. 2009).
205 U.S. ex rel. Int’l Bhd. of Elec. Workers Loc. Union No. 98 v. Farfield Co., 5 F.4th 315,
332 (3d Cir. 2021) (citation omitted).

47
address wholly distinct subject matters.206 Thus, “Russello does not provide a
dispositive canon. Even at its strongest, Russello provides a single canon, a subset
of a single tool of statutory interpretation, which may be displaced by other tools.”207
In this case, the FAD cited a handful of disparate provisions of the INA that
were passed by different Congresses at different times in different legislation, and
that deal with different types of proceedings that are handled in different
contexts.208 In our view, we think it is unreasonable and illogical to apply the
Russello presumption in these circumstances and conclude that the omission of the
words “on the record” in the H-2B enforcement provision evinces a careful and
purposeful choice by Congress to omit this provision from the scope of the APA.
To ascribe the determinative meaning the Assistant Secretary asserts would be a
myopic view of the legislative machinations of Congress in drafting provisions
which can often be ad-hoc in reality and not necessarily consistent with each other,
depending on the circumstances and timing of that draftsmanship. Stated more
directly, the congressional cauldron of decision-making does not always proceed on a
linear straight line of logic, as is assumed under the Russello presumption.
Instead, we believe it is far more appropriate to conclude, consistent with
eighty years of legal interpretations discussed above, that Congress intended for
these proceedings to be determined “on the record” under formal APA adjudication
procedures, just like the myriad other quasi-judicial proceedings across the
administrative landscape that bear the same characteristics.
206 Id. (citations omitted).
207 Grand Trunk W. R.R. Co. v. U.S. Dep’t of Lab., Admin. Rev. Bd., 875 F.3d 821, 825
(6th Cir. 2017) (citation omitted).
208 The provisions cited by the Acting Secretary also use different language to invoke
the “on the record” or APA requirement. Some require a hearing “in accordance with the
requirements of section 554 of Title 5” (8 U.S.C. §§ 1324a(e)(3)(B), 1324c(d)(2)(B)); one
requires a hearing “on the record in accordance with subchapter II of chapter 5 of Title 5
(popularly known as the Administrative Procedure Act)” (8 U.S.C. § 1375a(d)(5)(A)(ii)); and
some require a hearing “in accordance with section 556 of Title 5” (8 U.S.C. § 1182(n)(2)(B),
(n)(2)(G)(viii), (t)(3)(B)). If anything, the disparate language and lack of uniformity evince a
lack of purposeful draftsmanship by Congress.

48
E. Common Sense Dictates that Congress Intended H-2B Enforcement
Proceedings be Determined “On the Record”
Finally, we end with obvious common sense that supports concluding that
Congress intended formal APA procedures, including the requirement for a
determination to be made “on the record,” to apply to H-2B enforcement
proceedings, just like other traditional quasi-judicial adjudications. Employers
participating in the H-2B program must comply with many requirements and
conditions. For example, as was at issue in this case, employers must pay the
appropriate wage to the H-2B employees, free and clear.209 Employers must also
ensure that they do not give preferential treatment to H-2B employees over
domestic employees;210 must provide full-time work;211 must list, and abide by,
job qualifications and requirements;212 must pay visa fees and transportation costs
to and from the place of employment;213 must disclose, and abide by, the
geographical area of intended employment;214 must abide by certain requirements if
employees separate from employment early;215 and are bound by a continuing
requirement to hire U.S. workers.216 The Administrator may bring enforcement
actions for violations of these program regulations and seek the recovery of unpaid
wages, civil money penalties, and debarment from participating in the H-2B
program for up to five years, among other remedies.217
Thus, H-2B enforcement proceedings can involve serious accusations of
wrongdoing and steep remedies. If H-2B enforcement proceedings like these are not
made and decided “on the record,” then each case “could be decided on the basis of
evidence that a court would never see or, what is worse, that a court could not be
sure existed.”218 Congress cannot have intended such a result and the proposition
209 29 C.F.R. § 503.16(a), (b).
210 Id. § 503.16(q).
211 Id. § 503.16 (d).
212 Id. § 503.16 (e).
213 Id. § 503.16(j).
214 Id. § 503.16(x).
215 Id. § 503.16(y).
216 Id. § 503.16(t).
217 Id. §§ 503.19, .20.
218 See Seacoast, 572 F.2d at 877.

49
that an agency could bring enforcement actions and sanctions against an employer,
or any other entity, in a hearing type forum without concurrently creating a record
of those proceedings for the purposes of subsequent review by another body is
absurd. The time of the King’s Star Chamber is long past. Yet this is the logical
result of the FAD’s reasoning.219 Instead, we think it is safe and imminently
reasonable to conclude, in line with nearly 80 years of precedent and legal
presumptions, and in line with common sense, that Congress intended to apply the
panoply of procedural protections provided by the APA to these quasi-judicial
adjudications.
CONCLUSION
In sum, we are bound by the Acting Secretary’s decision in Graham &
Rollins, and therefore are compelled to affirm the ALJ’s dismissal of this case.
However, for the reasons above, we encourage the Secretary of Labor to revisit and
reverse Graham & Rollins, apply the reasoning of the Majority to this case, and
conclude that EAJA applies to these H-2B enforcement proceedings so that Morton
Concessions’ EAJA fees petition can be considered by the ALJ below.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge
219 This absurd result also buttresses the conclusions of the concurring opinion
discussing why it was not logically necessary to always state “on the record” every time a
hearing was required in a statute. As night follows day, the two logically and simply flow
together.

50
Judge Burrell, concurring:
The majority opinion cites the ATTORNEY GENERAL’S MANUAL,220 for
explanation as to why Congress used “on the record” in Section 5 (now Section 554).
In this concurring opinion, I expand upon those points with a fuller illumination of
Congress’s use of “on the record” language and how it came to be in the form it was
for the APA.
INTRODUCTION221
The APA at Section 554(a) provides as follows:
This section applies, according to the provisions thereof, in
every case of adjudication required by statute to be
determined on the record after opportunity for an agency
hearing, except to the extent that there is involved [listing
several exceptions]. . . .[222]
In the H-2B grant at issue, Congress provided for penalties and remedies if
the Secretary finds “after notice and opportunity for hearing” failures in the
conditions of the petition warrant action.223 It does not expressly provide for the
hearing “to be determined on the record”:
If the Secretary of Homeland Security finds, after notice
and an opportunity for a hearing, a substantial
failure to meet any of the conditions of the petition to admit
or otherwise provide status to a nonimmigrant worker
under section 1101(a)(15)(H)(ii)(b) of this title or a willful
misrepresentation of a material fact in such
petition . . . .[224]
220 ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT (1947).
221 Throughout, emphasis is added to key statutory or congressional language for effect.
222 5 U.S.C. § 554.
223 8 U.S.C. § 1184(C)(14)(A)(i) (“the Secretary of Homeland Security may, in addition to
any other remedy authorized by law, impose such administrative remedies (including civil
monetary penalties in an amount not to exceed $10,000 per violation) as the Secretary of
Homeland Security determines to be appropriate . . . .”).
224 8 U.S.C. § 1184(C)(14)(A).

51
For reasons set out below, H-2B’s statutory hearing language should be construed to
require the Secretary’s decision to be made upon the record developed at hearing.
1. Precursors to the APA: Initial Reform Efforts Addressed Formal
Adjudication
The APA, enacted in 1946, has a rich legislative history as the reform effort
worked through various stages of academic, judicial, and legislative input. In the
late 1930s, Congress sought to reform administrative procedure across the
Executive Branch. The President and the Attorney General formed a committee to
review administrative procedure and make recommendations for reform.225 Over
the course of a multi-year period, the AG Committee conducted studies and held
public hearings. The AG Committee issued a final report in January 1941,
hereinafter “FINAL REPORT.”226
One of the criticisms of administrative procedure before the APA’s watershed
reform was inconsistent agency adjudication deficient in key respects. In the FINAL
REPORT, the AG Committee distinguished between formal and informal
adjudication.227 The AG Committee identified that over 90% of administrative
matters were decided informally without formal procedure, that is “without
controversy, and by agreement between the agency and the individual citizen who is
affected.”228 “[I]n all but a surprisingly small percentage of cases, these methods [of
225 SEN. DOC. NO. 77-8, 77th CONG. 1st Sess. (FINAL REPORT) at 1-4 (President
Roosevelt requested the Attorney General form the Committee); see also SEN. DOC.
NO. 79-248, 79th CONG. 2d Sess. at 48, 189-90. Around the same time, both the House and
the Senate passed the Walter-Logan Bill to address problems with administrative
procedure, but this legislation was vetoed by the President in 1940. The President wanted
the AG Committee’s input before signing far-reaching legislation. SEN. DOC. NO. 79-248 at
49, 64-65, 189-90, 351 for history of the Walter-Logan Bill.
226 FINAL REPORT, supra note 225.
227 Id. at 5 (briefly covering attributes of both forms of adjudication). In formal
procedure, “testimony is taken, subject to cross-examination, and embodied into a record.”
Id.
228 HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY UNITED
STATES SENATE, 77TH CONG. 1ST SESS. ON S. 674, S. 675, AND S. 918, PART 1, APRIL 2-APRIL
29, 1941, at 804.

52
informal adjudication] finally dispose of the matter at hand.”229 The AG Committee
appreciated the need to standardize formal adjudication when needed but to allow
for informal adjudication where available to speed up resolution at lower cost.
A. Congress’s Gatekeeper Test in Section 301
In the FINAL REPORT, the AG Committee included proposed legislation.230
Growing out of the FINAL REPORT, the Senate Judiciary Committee also proposed
legislation and held hearings on administrative reform in 1941. Chief among the
bills considered by the Judiciary Committee was S. 675.231
Both the AG Committee’s proposal and the Senate’s S. 675 provided for
comprehensive reform of agency adjudication in Title III to address when formal
procedure is required, and if formal adjudication is required, describing in
subsequent sections of Title III what constitutes standard formal procedure across
the various agencies.
The issue before us requires a thorough examination of the legislative
language indicating when formal procedure applies, which was addressed in a
preface or gatekeeper test at Section 301 of the proposed legislation. The gatekeeper
function was critical for reform because Congress wanted to preserve informal
adjudication where possible given that the vast majority of agency orders take place
without hearing. The gatekeeper language built upon existing agency statutory
frameworks or enabling legislation rather than directing Congress to amend agency
statutes on this point.232
229 FINAL REPORT, supra note 225, at 5, 17-18; see also id. at 35 (“Comparatively few
cases flower into controversies in which the parties take conflicting positions of such
moment to them that resort is necessary to the procedure of the courtroom”). For example,
the AG Committee cited millions of informal adjudications in tax, veterans affairs, and
social security. FINAL REPORT, supra note 225, at 35, 38-39.
230 FINAL REPORT, supra note 225, at 191.
231 HEARINGS, supra note 228, at 17. There were three bills to consider: S. 675 was the
Committee’s majority position, S. 674 was the Committee’s minority provision, and S. 918
was a third provision receiving less attention. SEN. DOC. NO. 79-248 at 190.
232 In describing the proposed language, Acting Attorney General Biddle stated S. 675,
the favored proposal, “requires formal adjudicatory proceedings and the hearing
commissioner system only in those cases where formal proceedings are already
required by Congress in the specific statutes administered.” HEARINGS, supra note

53
SEC. 301. APPLICATION OF TITLE. The provisions of
sections 302 to 309, inclusive, of this title shall be
applicable only to proceedings wherein rights, duties, or
other legal relations are required by law to be determined
after opportunity for hearing, and, if a hearing be held, only
upon the basis of a record made in the course of such
hearing. They shall not apply to . . . . [233]
The gatekeeper language in these drafts is the precursor to Section 554 of the
APA in its current form. Just as Section 554 determines when the formal
procedures of Sections 554 and 556-557 apply, Section 301 determined when
Sections 302-309 would apply. Conceptually, the current version of the APA’s 554
language is identical to Section 301. Both the final version and the precursor drafts
require the application of formal procedure when Congress provides for a hearing
before adjudication. However, the text shifted from initial proposal to final adoption
concerning “on the record” language.
There are three elements of Section 301: (1) proceedings wherein rights,
duties, or other legal relations are at issue;234 (2) “required by law to be determined
228, at 1477 (reform is not intended to change existing informal procedures; only where
trial examination is now in effect).
233 HEARINGS, supra note 228, at 20 (S. 675). Section 301 of the AG Committee’s
proposed bill is identical for purposes of the gatekeeper test. FINAL REPORT, supra note 225,
at 195.
234 In adversarial proceedings, administrative judges weigh contested arguments and
evidence to resolve disputes with economic or important consequence for the parties.
These disputes are resolved through trial-like proceedings. See J. Forrester Davidson,
Use of Public Documents and Reports in Administrative Proceedings, 25 IOWA L. REV. 555,
573-74 (1940) (observing that legislative facts are prospective whereas adjudicative facts
put to rest past individual conflicts and are judicial in nature); Kenneth Culp Davis,
The Requirement of Opportunity to be Heard in the Administrative Process, 51 YALE L.J.
1093, 1094, 1112 (1942) (distinguishing speech-making, legislative hearings from trial-type
hearings where the latter require opportunity for evidence, cross-examination, and findings
of fact based upon evidence of record).

54
after opportunity for hearing;”235 and (3) “if a hearing be held . . . only upon the
basis of a record.”236
The drafters’ use of “required by law” recognized both Congress’s statutory
text in agency statutes as well as constitutional requirements raised by the courts
when reviewing agency determinations.237 Prior to the pivotal APA reform, courts
reviewing agency action238 mandated that agency determinations affecting the
rights or legal relations of parties comply with constitutional requirements that:
(1) agencies give notice of the claim and disclose evidence of opposing parties or the
government;239 (2) parties have an opportunity to challenge that evidence or cross-
examine witnesses;240 (3) the agency consider only the evidence of record and not
235 “Required by law” was criticized because agencies did not know if “law” included
their regulations whereby they ex gratia provided for hearings when statutes were silent.
HEARINGS, supra note 228, at 1456. The Justice Department recommended changing
“required by law” to “required by statute or the Constitution” which tips a hat to the heavy
influence courts had in shaping administrative reform with “due process” requirements for
agency procedure. Id.; see also id. at 577 (recommending changing “required by law” to
“only to proceedings wherein rights, duties or other legal relations are required by the
constitution or statutes to be determined after opportunity for formal hearing, and if such a
hearing be held, only upon the basis of a record made in the course of such hearing.”).
236 HEARINGS, supra note 228, at 20 (S. 675).
237 Supra note 235; see also George E. Hale, Administrative Hearings under the Federal
Constitution, 30 KENTUCKY L.J. 137, 137 (1942); Elden S. Magaw, Legal Aspects of
Administrative Hearings and Findings Part II, 12 MISS. L. J. 393, 397 (1940); Elden S.
Magaw, Legal Aspects of Administrative Hearings and Findings Part I, 12 MISS. L. J. 295,
309 (1940).
238 See, e.g., Morgan v. United States, 298 U.S. 468 (1936); Morgan v. United States, 304
U.S. 1 (1938); Interstate Com. Comm’n v. Louisville & Nashville R.R. Co., 227 U.S. 88
(1913); United States v. Abilene & S. Ry. Co., 265 U.S. 274 (1924); Ohio Bell Tel. Co. v. Pub.
Utils. Comm’n of Ohio, 301 U.S. 292 (1937).
239 West Ohio Gas Co. v. Pub. Utils. Comm’n of Ohio, 294 U.S. 63, 69-70 (1935) (citing
instance where commission included into the record several annual reports without giving
the company any notice of the inclusion and opportunity to challenge with evidence);
see also Hale, supra note 237, at 138-44 (examining the requirements of administrative
notice); Magaw, Part II, supra note 237, at 395 (there must be notice and hearing at some
stage in the proceedings where determination involves life, liberty, or property); FINAL
REPORT at 130 (identifying areas for the Veterans’ Administration Office to improve notice
and disclosure of information); FINAL REPORT, supra note 225, at 154 (criticizing the Post
Office practice of suspending mails upon unverified complaints without giving notice and
opportunity to answer or rebut allegations).
240 The right to submit evidence and argument in a quasi-judicial proceeding involving
named individuals and entities implies that the decision will be based on that evidence.

55
consider ex parte evidence in reaching a decision;241 and (4) the agency’s findings of
fact be supported by substantial evidence of record.
In the Morgan cases, the United States Supreme Court combined 50 suits
against the U.S. Department of Agriculture to discuss common problems with
administrative procedure.242 The Department of Agriculture had fixed maximum
rates for buying and selling livestock but its procedure did not comply with
statutory requirements for a full hearing before the agency decision.243 The Court
said there was no need to look to the Constitution to determine whether a hearing
was required because the requirement was in the statute.244 In criticizing the
agency’s procedure, the Court discussed the attributes of what constitutes a full
hearing.245 The Court concluded that no hearing was given if the person who
Magaw, Part II, note 237, at 405 (right to present evidence); Hale, supra note 237, at 144
(presentation of evidence); FINAL REPORT at 137 (recommending changes to Department of
Agricultural proceedings to more closely resemble quasi-judicial proceedings); FINAL
REPORT, supra note 225, at 140-41 (recommending that in cases of recovery of overpayment
that the payee be given an opportunity to be heard to argue and rebut contested facts
associated with the overpayment and waiver); FINAL REPORT, supra note 225, at 142
(criticizing banking practice where applications are denied and recommending agencies
provide notice of evidence and opportunity for rebuttal).
241 Morgan, 298 U.S. at 480, 481; Abilene & S. Ry. Co., 265 U.S. at 286-89 (order that
relied upon evidence not of record was deemed invalid); see also Hale, supra note 237, at
155-56 & n.103 (collecting cases where courts held that administrative decision must be
based on evidence introduced at hearing and incorporated into the record).
These principles were discussed in the debates on proposed legislation. FINAL
REPORT, supra note 225, at 144 (discouraging use of ex parte information by decision-
makers in marine inspection and discipline cases); id. at 155-56 (recommending
improvement in War Department procedure regarding fixing prices and the use of ex parte
information not disclosed to all affected prior to hearing so they may have opportunity to
confront it); id. at 163 (discussing use of ex parte or extra-record information in
investigations at the Department of Interior); id. at 179 (“The Committee believes that the
Commission or its hearing officer may properly take official notice of such information when
clearly relevant, if in the course of the hearing, or thereafter, there is notice of what is
proposed to be done and if opportunity is given to every party to explain or rebut the
information of which official notice is to be taken.”).
242 See Morgan v. United States, 298 U.S. 468 (1936); Morgan v. United States, 304 U.S.
1 (1938).
243 Morgan, 298 U.S. at 471; Morgan, 304 U.S. at 18-20 (discussing full hearing with
respect to due process and fairness concerns).
244 Morgan, 298 U.S. at 477-78.
245 Morgan, 298 U.S. at 479-80; see also Morgan, 304 U.S. at 18-19 (“But a ‘full
hearing’—a fair and open hearing—requires more than that. The right to a hearing

56
decides did not consider the evidence or argument of record.246 Plaintiffs were
entitled to be apprised of the government’s charges and given the opportunity to
meet the evidence before the agency’s final decision:
A proceeding of this sort requiring the taking and weighing
of evidence, determinations of fact based upon the
consideration of the evidence, and the making of an order
supported by such findings, has a quality resembling that
of a judicial proceeding. Hence it is frequently described as
a proceeding of a quasi judicial character. The requirement
of a ‘full hearing’ has obvious reference to the tradition of
judicial proceedings in which evidence is received and
weighed by the trier of the facts. The ‘hearing’ is
designed to afford the safeguard that the one who
decides shall be bound in good conscience to
consider the evidence, to be guided by that alone,
and to reach his conclusion uninfluenced by
extraneous considerations which in other fields might
have play in determining purely executive action. The
‘hearing’ is the hearing of evidence and argument. If the
one who determines the facts which underlie the order has
not considered evidence or argument, it is manifest that
the hearing has not been given.[247]
Morgan worked its way through the courts and the Supreme Court numerous times
over a multi-year period.248
embraces not only the right to present evidence, but also a reasonable opportunity to know
the claims of the opposing party and to meet them. The right to submit argument implies
that opportunity; otherwise the right may be but a barren one. Those who are brought into
contest with the Government in a quasi-judicial proceeding aimed at the control of their
activities are entitled to be fairly advised of what the Government proposes and to be heard
upon its proposals before it issues its final command.”).
246 Morgan, 298 U.S. at 480-81.
247 Id. at 480-81.
248 See, e.g., Morgan v. United States, 298 U.S. 468 (1936); 304 U.S. 1 (1938); 307 U.S.
183 (1939); 313 U.S. 409 (1941).

57
Similarly, in Interstate Commerce Commission v. Louisville & Nashville
Railroad Co., the Supreme Court rejected the government’s attempt to defend a
Commission agency decision in conflict with the hearing record.249 The Supreme
Court held that the law gave the parties a right to a hearing, the right to know of
and challenge the evidence against it,250 and imposed upon the agency the duty that
the decision be decided in accordance with the facts proved at that hearing.251
The Court stated as follows:
But the statute gave the right to a full hearing, and that
conferred the privilege of introducing testimony, and at
the same time imposed the duty of deciding in
accordance with the facts proved. A finding without
evidence is arbitrary and baseless. And if the government’s
contention is correct, it would mean that the Commission
had a power possessed by no other officer, administrative
body, or tribunal under our government. It would mean
that, where rights depended upon facts, the Commission
could disregard all rules of evidence, and capriciously make
findings by administrative fiat. Such authority, however
beneficently exercised in one case, could be injuriously
exerted in another, is inconsistent with rational justice,
and comes under the Constitution’s condemnation of all
arbitrary exercise of power.[252]
249 227 U.S. 88, 90 (1913).
250 227 U.S. at 93 (“. . . [F]or manifestly there is no hearing when the party does not
know what evidence is offered or considered, and is not given an opportunity to test,
explain, or refute. . . . All parties must be fully apprised of the evidence submitted or to be
considered, and must be given opportunity to cross-examine witnesses, to inspect
documents, and to offer evidence in explanation or rebuttal. In no other way can a party
maintain its rights or make its defense. In no other way can it test the sufficiency of the
facts to support the finding . . . .”).
251 227 U.S. at 91-92 (“In the comparatively few cases in which such questions have
arisen it has been distinctly recognized that administrative orders, quasi judicial in
character, are void if a hearing was denied; if that [hearing] granted was inadequate or
manifestly unfair; if the finding was contrary to the ‘indisputable character of the
evidence’ or if the facts found do not, as a matter of law, support the order made.”)
(internal citations omitted).
252 Id. at 91.

58
The Commission was not empowered to ignore the hearing record and trial
examiner’s adjustment when determining whether a rate was unreasonable.253
This resulted in an extra-record or arbitrary decision.
With this background, the AG Committee appreciated that courts on judicial
review would ask several questions, and these became a basis for ideal formal
procedure set out in the proposed draft:
Are notice and hearing prerequisite to the validity of the
administrative action? If so, what kind of notice and what
kind of hearing? Before whom may the hearing be held and
by whom must the administrative determination be made?
Was the aggrieved party given proper opportunity to
present relevant evidence and to contest evidence used by
the agency? Is the administrative decision required to be
based only on evidence of record and, if so, did the agency
take into consideration evidence not made part of the
record? Is the agency required to formulate findings as a
basis for its action and, if so, did it properly make the
required findings? These are questions which the court
may ask on review and the answers to which may
determine the validity of the administrative action.[254]
These requirements became the substance of “formal procedure”
implemented by the reform effort.255 With particular significance to our matter, if
253 Id. at 91, 92.
254 FINAL REPORT, supra note 225, at 88 (citing Morgan).
255 Id. at 62:
There are certain criteria of fairness in the hearing process
which, in the absence of clear evidence of inapplicability in
particular circumstances, should regularly be observed. Before
adverse action is to be taken by an agency, whether it be denying
privileges to an applicant or bounties to a claimant, before a
cease-and-desist order is issued or privileges or bounties are
permanently withdrawn, before an individual is ordered directly
to alter his method of business, or before discipline is imposed
upon him, the individual immediately concerned should
be apprised not only of the contemplated action with
sufficient precision to permit his preparation to resist,
but, before final action, he should be apprised of the

59
the statute required a hearing, courts recognized a requirement that the record and
decision be based upon the evidence adduced at that hearing out of due process
concerns.256 During the AG Committee and Senate Judiciary Committee hearings
on formal procedure for adjudications, these cases and others were identified. In
particular, Louisville & Nashville Railroad Co. was identified as one of the sources
of Section 301’s language—that the agency decision be based on the record at
hearing.257
These cases had the effect of tethering the decision to the hearing record;
judicial review required a record and decision on the record supported by
substantial evidence.258 “Whatever may be the practice before administrative
tribunals then, the constitutional theory is plain; an administrative tribunal must
evidence and contentions brought forward against him
so that he may meet them. He must be offered a forum
which provides him with an opportunity to bring his own
contentions home to those who will adjudicate the
controversy in which he is concerned. The forum itself must
be one which is prepared to receive and consider all that he offers
which is relevant to the controversy.
These may properly be termed the fundamentals ordinarily
requisite to a fair hearing leading to adverse action against an
individual.
256 Supra notes 241, 250-54 and accompanying text.
257 Mr. Aitchison, Commissioner of the Interstate Commerce Commission commented:
. . . The final qualification, “and, if a hearing be held,
determine only upon the basis of a record made in the
course of such hearing,” is intended, of course, to differentiate
between cases of the familiar type of the Norwegian Nitrogen
case, 288 U.S. 294, and the Louisville & Nashville case, 227 U.S.
88, 91, where it was held that the statutory right to a full
hearing “imposes the duty of deciding in accordance with
the facts proved.” This distinction we consider to be sound:
Experience readily indicates the line of division between cases
where the hearing is, at most, advisory, and those where it is all-
controlling; and this line of division should be maintained.
HEARINGS, supra note 228, at 453-54.
258 FINAL REPORT, supra note 225, at 88 (identifying that reviewing courts will review
factual questions and questions of law under appropriate standards); id. at 134
(recommending that denial of applications be given the opportunity for a hearing so that
the record at hearing could serve as a source for judicial review).

60
act only on information presented to it at a hearing.”259 The AG Committee wrote in
the FINAL REPORT:
The parties, then, are entitled to be apprised of the data
upon which the agency is acting. They are entitled not only
to refute but, what in this situation is usually more
important, to supplement, explain, and give different
perspective to the facts upon which the agency relies. In
addition, upon judicial review, the court must be informed
of what facts the agency has utilized in order that the
existence of supporting evidence may be ascertained.[260]
All reform roads lead to the statutory hearing. The statutory hearing was the
foundational block for APA reform. Before the APA was enacted, many enabling
statutes required hearings for quasi-judicial action, perhaps because it had been a
long-standing requirement of courts that agencies do so. When Congress, in existing
agency statutes, required hearings for disputes involving individual rights and legal
relations, this triggered proposed reform ensuring that agencies comply with formal
procedure set out in the proposed legislation.261
B. “On the Record” is Part of Determination Following Agency Hearing
Under Section 301, formal procedure was limited to enabling statutes
requiring a hearing before adjudication. The accompanying language requiring the
decision to be made “upon the record” is part and parcel of the entire interwoven
fabric of reforms. To specify that the decision must be “on the record” is not
necessary if one is discussing a quasi-judicial hearing involving rights where the
statute requires hearing before decision. It is not so much that the enabling statute
259 Hale, supra note 237, at 156 (citations omitted) (summarizing cases).
260 FINAL REPORT, supra note 225, at 72.
261 Supra note 232; SEN. DOC. NO. 79-248 at 330 (“The [] bill is designed primarily to
secure publicity of administrative law and procedure, to require that administrative
hearings and decisions shall be conducted in such manner as to preclude the secret
reception of evidence or argument, to restate but not expand the right of and procedures for
judicial review, and to foster the foregoing by requiring an intra-agency segregation of
deciding and prosecuting functions and personnel. No attempt is made to require
formal administrative hearings where the law under which the agency operates
has not so required. No attempt is made to limit existing administrative authority.
Agencies are simply confined to the scope of their authority.”).

61
required the agency decision to be “on the record” as it provided for an agency
hearing in connection with the agency’s order or adjudication. The “on the record”
text fits interstitially between the statutory pillars of (1) agency making a decision
and (2) that decision taking place after notice and opportunity for hearing. The
common statutory grant for agency adjudication does not merely state that notice
and a hearing take place but that the order “be determined upon” . . . “agency finds
after”. . . “be based on” . . . “made upon” a hearing.262 It is tautological that if
Congress has specified that the agency’s decision must be made following notice and
opportunity for hearing, that the agency’s decision be based on that hearing
record.263 The Supreme Court in the Chicago Junction Case264 observed that
Congress’s choice to provide a hearing before an opinion created a quasi-judicial
action wherein evidence is introduced and judgment follows the record thereof:
Congress by using the phrase ‘whenever the Commission is
of opinion, after hearing,’ prescribed quasi judicial action.
Upon application of a carrier, the Commission must form a
judgment whether the acquisition proposed will be in the
public interest. It may form this judgment only after
hearing. The provision for a hearing implies both the
privilege of introducing evidence and the duty of deciding
in accordance with it. To refuse to consider evidence
introduced or to make an essential finding without
supporting evidence is arbitrary action.[265]
During the Senate Judiciary Committee’s hearings, agencies commented that
there was some confusion around the proposed Section 301 language. One agency
questioned the awkwardness of Section 301’s language for both a statutory hearing,
but also a conditional that “if a hearing be held” by resolving: “certainly it must be
implicit in any statutory requirement for hearing that decision will be made upon
the record.”266
262 Supra note 232.
263 Supra notes 241, 250-54, 257 and accompanying text.
264 264 U.S. 258 (1924).
265 264 U.S. at 264-65 (footnotes omitted).
266 HEARINGS, supra note 228, at 546.

62
One explanation for why draftsmen chose the language they did was that
some agencies pre-APA had loose language or procedures for what they deemed a
“hearing.” Oral arguments, narratives, or conferences might be viewed as a hearing
even though they were not adversarial,267 i.e., they were not in front of trial
examiners with evidence and argument from opposing parties constituting the
hearing record upon which the decision was made concerning the rights of parties.
In a statement to the Senate Judiciary Committee, the DOJ observed the
general theme throughout the APA reform effort that informal adjudication is
preferred, but for those areas where there is a trial examiner, the agency holds a
formal hearing, and its decision is required to be based upon the formal record
developed at hearing:
The most important factor is that the bill is not intended to
change existing informal procedures. The hearing-
commissioner system is, in general, to be used only
where the trial examiner system is now in effect.
Where the agency does not hold a formal hearing
and where its decision is not required to be based
upon the formal record of that formal hearing (the
situation where the trial examiner system is most
commonly used), the provisions of sections 302 and
309 of S. 675 are not intended to apply. In no case is
a formal hearing before a hearing commissioner
intended to be required where no formal hearings
are now required by law to be held.
Nevertheless, some confusion seems to exist concerning the
applicability of S. 675 to informal adjudications. This
apparently is because some agencies, such as the Bureau
of Internal Revenue and the Veterans’ Administration,
attach a different meaning to the word “hearing” and to the
word “record” than that attached to those words by the bill.
Representatives of those agencies feel that any sort of
hearing, including ordinary conferences or the sort of
narrative oral argument taking place before the Veterans’
267 Abilene & S. Ry. Co., 265 U.S. at 289 (“Every proceeding is adversary, in substance,
if it may result in an order in favor of one [party] as against another.”).

63
Administration, are included. They also regard that a file
of information may be interpreted to be a “record.” Of
course, one can scarcely envisage an administrative
decision of any sort which is not based upon a file. But the
requirement of section 301 is that the record be
made in the course of the hearing. This seems to
exclude situations where decision is made in part
upon the basis of some sort of informal hearing and
in part on the file, since the file clearly is not the
record made in the course of such hearing.[268]
Reformers needed to address ambiguity to preserve the important line
between formal and informal procedure. For adjudicatory hearings, the evidence is
gathered at hearing and the decision is made on the basis of that record at
hearing.269 When considering these requirements for full hearing and adjudication,
it is needless to state that the agency decision be determined on the record.270 To
allow adjudication to include extra-record material on disputes involving rights of
parties would run contrary to judicial standards cited by courts on review and
reverse the reform effort.271
2. McCarran-Summers S. 7 in 1945-1946
Following the Senate Judiciary Committee hearings in 1941, World War II
intervened and occupied concern. Congress picked up the issue of reforming
administrative procedure in 1944. Senator McCarran introduced S. 7 in early
January 1945.272 Accompanying S. 7, Congressman Summers introduced an
268 HEARINGS, supra note 228, at 1500-01.
269 Id. at 831 (“Although comparatively few cases reach the stage of formal
adjudication—and by that I mean full hearing where testimony is under oath and subject to
cross-examination and where the ultimate decision must be based solely on such testimony
and evidence—positions are strongly held, interests clash, and issues are often difficult and
technical.”).
270 Magaw, Part II, supra note 237, at 411 (“Corollary to the right of cross-examination
is the well settled rule that the decision of the administrative body must be based on
evidence of record. . . .”); see also supra notes 241, 250-54, 257, 262-263, and accompanying
text.
271 Supra notes 237-254.
272 SEN. DOC. NO. 79-248 at 300.

64
identical bill, H.R. 1203, in the House.273 At this point, the draft APA was the
culmination of almost ten years of investigation, deliberation, and craftsmanship by
judges, practitioners, agencies, and congressmen.274
A. Section 301 became Section 5 in S. 7
What was Section 301 in the earlier effort became Section 5 in the 1945 draft
of S. 7. The draftsmen of the Senate Judiciary Committee had taken up the
recommendations provided to the Senate Judiciary Committee in 1941 and changed
“required by law” to “required by statute.”275 They removed the “if there is a hearing
. . . on the basis of a record” clause completely.276
In a set of revisions in early 1945, S. 7’s gatekeeper language for adjudication
was revised to add back “on the record” in the form it would take in the enacted
version of Section 5 (currently in Section 554):
Sec. 5. In every case of adjudication required by statute
to be determined on the record after opportunity for
an agency hearing,[277] except to the extent that there is
273 Id. at 11, 300-01.
274 Id. at 48.
275 See, e.g., HEARINGS, supra note 228, at 209, 1456 (recommending changes).
276 The reproduced June 1945 Committee Print indicates that the Committee chose not
to include the initial language of S. 7 because it is identical to H.R. 1203, which was
included. SEN. DOC. NO. 79-248, at 11. H.R. 1203 (S. 7’s initial draft) provided for Section 5
as follows:
Section 5. In every case of adjudication required by statute to
be determined after opportunity for an agency hearing, except
to the extent there is directly involved any matter subject to a
subsequent trial of the law and the facts de novo . . . .
SEN. DOC. NO. 79-248, at 157. The Committee then took additional comment and made a set
of revisions for the June Print. Id.
277 Section 301 had stated that formal procedure is required if the “law” requires a
hearing and, if a hearing be held, “only upon the basis of a record.” The “if a hearing be held
. . .” language is itself a conditional. Why have a conditional “if a hearing be held . . .” on top
of a requirement that presupposes a hearing by statute? The answer may be because the
language “opportunity for hearing” accounts for the situation where a statutory hearing
might not take place due to settlement or default proceedings. So, if we reformulate the

65
involved (1) any matter subject to a subsequent trial of the
law and the facts de novo in any court, (2) the selection or
tenure of an officer or employee of the United States, (3)
proceedings in which decisions rest solely on inspections,
tests, or elections, (4) the conduct of military, naval, or
foreign affairs function, (5) cases in which an agency is
acting as an agent for a court, and (6) the certification of
employee representatives—[278]
Throughout the subsequent discussions on the draft, the language relevant to
our discussion does not change for adjudications.279 The reformatting and inclusion
of “on the record” in its final form in the June 1945 draft does not appear to be a
substantive change. The draftsmen explained these changes and included other
notes and suggestions but did not provide any comment on the change of adding “on
the record” back into the test.280 Numerous times, universally or near universally,
when draftsmen and commentators discussed the meaning of or explained the
gatekeeper test for formal adjudication, they did so without discussing the “on the
record” language. Rather, the language triggering formal procedure was described
simply in the form: formal procedure is required when the agency’s statute requires
“hearing before adjudication” or “adjudication after notice and opportunity for
hearing.”
Critically, when explaining the revised draft quoted above with “on the
record” included in final form, the Senate Judiciary Committee explained:
. . . The introductory clause removes from the operation of
sections 5, 7, and 8 all administrative procedures in which
Congress has not required orders to be made upon a
requirement without accounting for nonparticipation, the easiest way to combine the
phrases is to move “upon the basis of a record” behind “to be determined” as follows:
[T]he formal procedure set out in the subsequent provisions
shall be applicable only to proceedings wherein rights, duties, or
other legal relations are required by law to be determined upon
the basis of a record after opportunity for hearing.
This is very similar to the final version of Section 5.
278 SEN. DOC. NO. 79-248 at 21.
279 Id. at 4, 21.
280 Id. at 21-22.

66
hearing, . . . Limiting application of the sections to those
cases in which statutes require a hearing is particularly
significant, because thereby are excluded the great mass of
administrative routine as well as pensions, claims, and a
variety of similar matters in which Congress has usually
intentionally or traditionally refrained from
requiring an administrative hearing.[281]
This explanation, one of the most informed explanations available for the
final gatekeeper test, ignores “on the record” as a unique facet and generalizes that
Section 5 limits formal procedures to those cases where Congress has required
orders to be made upon a hearing. The proper way to look at this gatekeeper
language is that formal procedures apply when “Congress has required orders
be made upon [a record developed at] a hearing” or a variation thereof.
The statutory hearing implies a record and a decision upon that record.282
This understanding of not attaching significance to the words “on the record”
carries throughout the course of the congressional debates leading up to the APA’s
passage. Subsequent explanations, as the draft language worked through the House
and Senate in 1945 and 1946 and received further input from agencies and
interested parties, yields the same explanation.
In a section-by-section analysis of a November 1945 draft of S. 7, Senator
McCarran described the gatekeeper test of Section 5:
The various subsequent provisions of section 5 relating to
adjudications apply only where the case is otherwise
required by statute to be determined upon an
281 Id. at 21-22; see also id. at 22 (further references in explanation and suggestions
affirming that the test is “required by statute to be made after hearing”); id. at 23
(regarding subsection (a) “notice” provision of Section 5, the Committee explained
“Since this section, and thereby sections 7 and 8 relating to hearings and decisions, applies
only where statutes require a hearing, notice of hearing is an obvious and
indispensable requisite.”); see also id. at 28 (in re Section 7 on hearings, the Committee
explained that Section 7 is “not designed to require hearings where Congress has
not already done so by statute.”); id. at 79 (House Judiciary Committee Hearings June
1945) (“[formal adjudication] shall [not] apply to any case unless Congress has
specifically, by some other statute, required an administrative hearing.”).
282 Supra notes 264-266.

67
agency hearing . . . . The general limitation of this section
to cases in which other statutes require the agency to
act upon or after a hearing is important. . . . The
numbered exceptions remove from the operation of the
section even adjudications otherwise required by
statute to be made after hearing.[283]
The House explained the proposed language in a May 1946 draft of S. 7:
This section is limited to cases in which other statutes
require an agency to act upon or after a hearing, but
even then the numbered exceptions remove from the
operation of the section adjudications otherwise
required by statute to be made after hearing or
opportunity therefor.[284]
Similar explanations were given throughout congressional proceedings.285
283 SEN. DOC. NO. 79-248 at 202 (analysis of provisions).
284 Id. at 260 (House Judiciary Committee May 1946).
285 Id. at 303 (Sen. McCarran March/May CONGRESSIONAL RECORD 1946 explaining
that the bill requires no agency hearings unless other statutes already provide so,
and where statutory hearings are provided for, the bill fills in required formal
procedure); id. at 304, 305 (same, “adjudications [or] orders shall be made after
agency hearing, or opportunity for such hearing” then formal requirements for the
hearing and subsequent decision); id. at 315 (for both adjudication and rulemaking,
describing the trigger for formal procedure simply as where other statutes require the
adjudication or rules to be determined after or upon an agency hearing); id. at 353-54
(House Proceedings CONGRESSIONAL RECORD May 1946) (“Section 5 deals with
administrative adjudications of particular cases where Congress has required
adjudications to be made upon a hearing. Sections 7, 8, and 11 spell out the details of
hearing and decision procedures in all cases in which, by other legislation, Congress has
required an agency hearing.”); id. at 359 (House Proceedings May 1946) (“It applies,
however, only where Congress by some other statute has prescribed that the
agency shall act only upon a hearing and, even in that case, there are six exceptions.
The requirements of section 5 are thus limited to cases in which statutes otherwise
require a hearing . . . .”).

68
B. Gatekeeper Clause for Formal Rulemaking in S. 7
S. 7 also addressed rulemaking reforms. Most rulemaking is promulgated
informally. In less frequent cases, Congress requires formal procedures for
rulemaking.286 When formal rulemaking was required, the gatekeeper test of S. 7
was similar to that of adjudication. In a June 1945 draft of S. 7, draftsmen set out
the gatekeeper test for formal rulemaking:
. . . Where rules are required by law to be made upon
the record after opportunity for or upon an agency
hearing, the requirements of sections 7 and 8 shall apply
in place of the provisions of this subsection.[287]
As with adjudication, when the draftsmen explained the provisions, they did
so without attaching any significance to “upon the record.” Explaining the formal
rulemaking trigger, the draftsmen stated as follows:
As to th[e] type of rules, moreover, it leaves agencies free
to choose from the several common types of informal
public rule making procedures, the simplest of which is to
permit interested persons to submit written views or data,
except where Congress has required that rules be
issued only upon a hearing. In the latter case, the
hearing and decision procedures of sections 7 and 8
necessarily apply . . . . It should be noted that no
requirement of formal administrative hearing, is imposed
except where Congress has by some other statute
required that rules be issued upon hearing.[288]
286 Formal rulemaking is the exception for rulemaking. HEARINGS, supra note 228, at
1468, 1520; APA MANUAL, supra note 220, at 32. Most rulemaking is informal by conference
or public hearings in the legislative sense where decision-makers can hear and take public
comment on proposed reform. Id. at 34. In other cases of unique or far-reaching
consequences, Congress has specified enhanced requirements for rulemaking with fact-
finding and judicial review in mind. FINAL REPORT, supra note 225, at 108-109; HEARINGS,
supra note 228, at 1468, 1520; APA MANUAL, supra note 220, at 32.
287 SEN. DOC. NO. 79-248 at 19; see also id. at 157 (H.R. 1203).
288 SEN. DOC. NO. 79-248 at 19, 20; see also id. at 76 (House Judiciary Committee
Hearings June 1945) (“There seems to be fairly complete agreement that you can provide
and you should provide only for one thing. That is that, unless Congress in some other

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In May 1946, the House Judiciary Committee recommended amending the
formal rulemaking gatekeeper language to be identical to the formal gatekeeper
language for adjudication. The amendments included changing “required by law” to
“required by statute,” which had already been done for adjudications.289 The House
Judiciary Committee also adjusted the “upon the record” language. The current
version stated “upon a record,” and the proposed change would state “on the record”
to match with Section 5 for formal adjudication. In making the “on the record”
change, the House Judiciary Committee commented:
The change is made [to S. 7’s rulemaking language in
Section 4] to conform to the language used in the
introductory clause of section 5 respecting adjudications.
A statute may, in terms, require a rule or order to be
made upon the record of a hearing, or in the usual
case be interpreted [by due process concerns] as
manifesting a Congressional intention so to require,
and in either situation sections 7 and 8 would apply
save as other exceptions are operative.[290]
The House Judiciary Committee’s reviewers recognized that “on the record”
is usually derived from the courts construing the statutory language in light of the
Constitution. In either case, the result is the same: when Congress requires the
agency rule to be made upon a statutory hearing, it is the record at hearing that
forms the basis of the rule.291
statute has required the regulation to be made upon hearing, the only thing that
should be required is for the agency to give notice of making of any substantive rule and
allow people to submit at least in writing their suggestions and to consider them before the
issuance of whatever regulations are made.”); id. at 200-01 (November 19, 1945 draft)
(Senator McCarran’s analysis of provisions) (omitting “on the record” from the explanation
of Sec. 4 as to when formal procedures must accompany rulemaking); id. at 259
(same, House explanation May 1946).
289 SEN. DOC. NO. 79-248 at 285 (House Judiciary Committee May 1946 appendix).
290 Id. at 285 n.9; see also supra note 235 (citing DOJ’s recommendation to change
“required by law” to “required by statute and Constitution”); Magaw, Part I, supra note 237,
at 325-27 (observing that courts construe which type of hearing, legislative or adversarial,
is required by a statute authorizing rulemaking).
291 While the draftsmen explained the gatekeeper test for formal rulemaking in simple
terms, following that of adjudication, the distinction between informal and formal
rulemaking was more difficult for the courts following enactment of the APA. See, e.g.,

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At this point, both rulemaking and adjudication gatekeeper tests had
“on the record” language and were explained without recognizing the element as
distinct from the enabling legislation’s grant of a statutory hearing before formal
rulemaking or adjudication:
Where existing statutes require that either general
regulations (called “rules” in the bill) or particularized
adjudications (called “orders” in the bill) be made after
agency hearing or opportunity for such hearing,
then section 7 spells out the minimum requirements for
such hearings, section 8 states how decisions shall be made
thereafter, and . . . . Sections 4 and 5 prescribe the basic
requirements for the making of rules and the adjudication
of particular cases. In each case, where other statutes
require opportunity for an agency hearing, sections 7
and 8 set forth the minimum requirements for such
hearings. . . . [292]
United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973); United States v.
Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972); see also Emily S. Bremer, Blame
(Or Thank) the Administrative Procedure Act for Florida East Coast Railway, 97 CHI.-KENT
L. REV. 79 (2022). Many rulemaking statutes provided for informal presentation of input
including informal public hearings. HEARINGS, supra note 228, at 1468, 1520. After the
APA’s enactment, statutes of this type were in focus. Courts did not conclude that formal
rulemaking through Sections 7 and 8 (§ 556 and § 557) was applicable notwithstanding the
language mandating that the rule follow statutory hearing. While quasi-judicial
adjudication can be simplified to the requirement of decision following statutory hearing,
supra notes 262-271, quasi-legislative rulemaking with mandated hearings must be sorted
between speech-based hearing (§ 553(c) first sentence) and true formal rulemaking based
on fact-finding and record (§ 553(c) last sentence). APA MANUAL, supra note 220, at 31-35
(distinguishing rulemaking with public hearings from rarer formal rulemaking mandating
rule be made upon record at hearing); Pacific States Box & Basket Co. v. White, 296 U.S.
176, 186 (1935) (even though the statute required hearing before promulgation of rule,
findings of fact were not required because of the general application of the rule contra an
administrative adjudication in the nature of a judgment against an individual where such
findings of fact upon a record are present); Magaw, Part I, supra note 237, at 311-16.
292 SEN. DOC. NO. 79-248 at 194 (McCarran discussing the Committee’s approach to the
proposed legislation); id. at 251 (same); see also id. at 248 (House Judiciary Committee May
1946) (answering complaints from the 1941 hearings and responding how the current draft
addressed those concerns: “Some agencies did not want hearings provided (pp. 1389-1398,
1394), and the present bill provides the details for hearings only where other statutes
require a hearing. (See sec. 4 (b) and the introductory clause to sec. 5.)”); id. at 252

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C. Section 5’s Gatekeeper Test Harmonizes Accompanying Formal Procedures
on Evidence, Exclusivity, and Judicial Review
The gatekeeper test of Section 5 links conceptually to other formal procedure
reforms and reinforces the concept of agency decision decided upon a record at
hearing. Section 5 is the gatekeeper test; Section 7 establishes requirements for a
formal hearing; Section 8 establishes requirements of the agency decision; and
Section 10 provides for judicial review of agency decisions.
As part of the formal procedure triggered by the gatekeeper test, Congress
provided for the record at hearing to be the exclusive source of the agency decision.
In other words, agency decision should be based on the hearing record and not upon
ex parte information.293 In the June 1945 revised draft, Senate Judiciary draftsmen
proposed Section 7(d):
(d) Record. The transcript of testimony and exhibits,
together with all papers and requests relating to the
hearing, shall constitute the exclusive record for
decision in accordance with section 8 and, upon payment of
lawfully prescribed costs, be made available to the parties.
Where any agency decision rests, on official notice of a
material fact not appearing in the evidence in the record,
any party shall on timely request be afforded an
opportunity to show the contrary.[294]
The draftsmen explained this provision as follows:
This subsection provides that administrative hearings
shall be reduced to a record, and made available to all
parties. The statement of the exclusiveness of the
(House Judiciary Committee May 1946) (“Sections 4 and 5 prescribe the basic requirements
for the making of rules and the adjudication of particular cases. In each case, where other
statutes require opportunity for an agency hearing[,] sections 7 and 8 set forth the
minimum requirements for such hearings and the agency decisions thereafter while section
11 provides for the appointment and tenure of examiners. . . .”).
293 Supra note 241.
294 SEN. DOC. NO. 79-248 at 31. The May 1946 draft (House Judiciary Committee) is
similar. Id. at 271.

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record of the administrative hearing is a necessary
recognition that upon it, and no other evidence, the
further administrative proceedings must be had, the final
administrative decision made, and judicial review be
confined. Unless the record is so recognized as
exclusive, the purpose and value of the hearing may
be rendered nil, for it is orally the record that
informs the parties of the evidence for or against
them. The rule of official notice is that recommended by
the Attorney General’s Committee, particularly the
safeguard that parties be apprised of matters so noticed
and accorded an “opportunity for reopening of the hearing
in order to allow the parties to come forward to meet the
facts intended to be noticed.”[295]
The House included then Attorney General Tom Clark’s input into the
proposals wherein he tied Section 7(d) together with the gatekeeper test on
statutory hearings:
The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, shall
constitute the exclusive record for decision, in the
cases covered by section 7. This follows from the
proposition that sections 7 and 8 deal only with cases
where by statute the decision is to be based on the
record of hearing.[296]
Similarly, Section 8 embodies the concept of agency decision upon the record
at hearing as it lists out the methods for parties to get argument and evidence
before the deciding official.297 Section 8(b) emphasizes this content as the source of
295 Id. at 32.
296 Id. at 412 (appendix to Attorney General’s statement) (House Proceedings May
1946).
297 The proposed language in the June Print was as follows:
(b) SUBMITTALS AND DECISIONS. Prior to each
recommended, initial, or tentative decision, or decision upon
agency review of the decision of subordinate officers the parties
shall be afforded a reasonable opportunity to submit for the

73
the decision thereby connecting with other formal procedures, which require
decisions upon record of hearing.298
Similarly, the draft and final language for judicial review in Section 10
includes the above-discussed concept of agency record developed at hearing. For the
June 1945 revised draft, the proposed legislation provided that reviewing courts
shall set aside agency action for, among other reasons, being:
Section 10(e)(5) . . . unsupported by substantial evidence in
any case subject to the requirements of sections 7 and
8. . . .[299]
consideration of the officers participating in such decisions (1)
proposed findings and conclusions, or (2) exceptions to the
decisions or recommended decisions of subordinate officers or to
tentative agency decisions, and (3) supporting reasons for such
exceptions or proposed findings or conclusions. The record shall
show the ruling upon each such finding, conclusion, or exception
presented. All decisions (including initial, recommended,
or tentative decisions) shall become a part of the record
and include a statement of (1) findings and conclusions,
as well as the reasons or basis therefor, upon all the
material issues of fact, law, or discretion presented on
the record; and (2) the appropriate rule, order, sanction, relief,
or denials thereof.
Id. at 33.
298 The draftsmen explained:
This subsection, in its first sentence, merely states the
recognized rule respecting proposed findings, exceptions, and
argument. The second sentence deals with the form and content
of final decisions and determinations. The requirement of
written findings and conclusions, coupled with a
statement of reasons, is indispensably necessary so far as
administrative agencies undertake to make decisions
upon the record of a hearing.
Id. at 33-34; see also id. at 210 (Senator McCarran, November 1945) (“The requirement that
the agency must state the basis for its findings and conclusions, means that such findings
and conclusions must be sufficiently related to the record as to advise the parties of their
record basis. Most agencies will do so by opinions which reason and relate the issues of fact,
law, and discretion.”); id. at 273, 288 (House Judiciary Committee May 1946)
(text, explanation, and suggested amendments for Section 8 in subsequent drafts).
299 Id. at 39.

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The Senate Judiciary Committee explained this provision as follows:
The fifth category necessarily limits the substantial
evidence rule to cases in which Congress has required
an administrative hearing in which the
administrative record may be made.[300]
In subsequent revisions to Section 10’s text, legislators clarified the language
by revising 10(e)(5) to state: “unsupported by substantial evidence in any case
reviewed upon the record of an agency hearing provided by statute, . . .”301
This revised text was explained as follows: “If the agency is proceeding upon a
statutory hearing and record, the cause will appear there. . . .”302 The APA’s
final language on Section 10(e)(5) is as follows:
[U]nsupported by substantial evidence in any case subject
to the requirements of sections 7 and 8 or otherwise
reviewed on the record of an agency hearing provided
by statute. . . .[303]
CONCLUSION
The APA’s final gatekeeper language of Section 5 sets out as follows:
Sec. 5. In every case of adjudication required by statute to
be determined on the record after opportunity for an
agency hearing, except to the extent that there is involved
(1) any matter subject to a subsequent trial of the law and
the facts de novo in any court; (2) the selection or tenure of
an officer or employee of the United States other than
examiners appointed pursuant to section 11; (3)
proceedings in which decisions rest solely on inspections,
tests, or elections; (4) the conduct of military, naval, or
foreign affairs functions; (5) cases in which an agency is
300 Id.
301 Id. at 278 (House Judiciary Committee May 1946).
302 Id. at 278-79 (House Judiciary Committee May 1946).
303 Sec. 10(e), id. at 8 (final language).

75
acting as an agent for a court; and (6) the certification of
employee representative. . . .[304]
As mentioned above, congressional explanations for the gatekeeper test
repeatedly skipped “on the record” when examining the language. There is a good
reason for this. “On the record” is not a unique facet that requires explanation but is
part of the statutory hearing record that forms the basis of the decision when
Congress specifies that the agency must “find,” “decide,” or “determine” after “notice
and opportunity for hearing.” When Congress specifies that the agency is to
determine after “notice and opportunity for hearing” that some right or obligation
accrues to one or another, it is necessarily establishing a quasi-judicial setting
wherein the agency makes that decision on the hearing record—giving the party
notice and an opportunity to confront all of the evidence adverse to its position.305
Our H-2B statute fits this model as the Secretary finds, after notice and
opportunity for hearing, the rights and legal relations of employers and non-
immigrant workers. It states as follows:
If the Secretary of Homeland Security finds, after notice
and an opportunity for a hearing, a substantial failure to
meet any of the conditions of the petition to admit or
otherwise provide status to a nonimmigrant worker
under section 1101(a)(15)(H)(ii)(b) of this title or a willful
misrepresentation of a material fact in such petition—[306]
304 Id. at 4 (final language).
305 Supra notes 262-271.
306 8 U.S.C. § 1184(C)(14)(A).

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Under H-2B, the Secretary has the ability to award civil monetary penalties
and other relief authorized by law.307 This is a quasi-judicial adjudication resolving
adjudicative facts with important consequences for specified parties to the dispute.
I concur with the majority that H-2B is properly construed as an adversarial
adjudication thereby satisfying EAJA’s partial waiver of sovereign immunity.
THOMAS H. BURRELL
Administrative Appeals Judge
307 Supra note 223.