                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 18a0112p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT



 R. ALEXANDER ACOSTA, Secretary of Labor,                       ┐
                                 Plaintiff-Appellee,            │
                                                                │
                                                                 >       No. 17-3427
            v.                                                  │
                                                                │
                                                                │
 CATHEDRAL BUFFET, INC.; ERNEST ANGLEY,                         │
                            Defendants-Appellants.              │
                                                                │
                                                                ┘

                            Appeal from the United States District Court
                             for the Northern District of Ohio at Akron.
                       No. 5:15-cv-01577—Benita Y. Pearson, District Judge.

                                   Decided and Filed: May 24, 2018*

                   Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

                                           _________________

                                                COUNSEL

ON MOTIONS: Todd A. Mazzola, RODERICK LINTON BELFANCE, LLP, Akron, Ohio, for
Appellants. IN RESPONSE: Mary E. McDonald, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Appellee.




        *
         The Panel originally ruled on the instant motions in an order filed on May 24, 2018. The court has now
designated the ruling for publication.
 No. 17-3427                          Acosta v. Cathedral Buffet, et al.                                 Page 2


                                            _________________

                                                    ORDER
                                            _________________

        This matter is before the court upon Defendants-Appellants Cathedral Buffet, Inc., and
Reverend Ernest Angley’s motion for leave to file a petition for costs and attorney’s fees under
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.1

        On April 16, we reversed the district court’s judgment against Cathedral Buffet and
Angley, president of the Buffet and pastor of the Grace Cathedral church, which found them
liable under the Fair Labor Standards Act (FSLA) for back wages owed to church member
volunteers who worked at the restaurant. See Acosta v. Cathedral Buffet, Inc., 887 F.3d 761 (6th
Cir. 2018). We held that the volunteers were not FLSA employees because they did not work in
expectation of compensation, as required by Supreme Court precedent. Id. at 766-67 (citing
Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 302 (1985); Walling v. Portland
Terminal Co., 330 U.S. 148, 152 (1947)).

        Cathedral Buffet now seeks to recover its costs and attorney’s fees for the entire litigation
from the Department of Labor (DOL). The EAJA provides, in pertinent part, that in an action
brought by or against the United States, “a court shall award to a prevailing party other than the
United States fees and other expenses . . . incurred by that party . . . unless the court finds that the
position of the United States was substantially justified or that special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). To recover costs and fees under the EAJA, the
applicant must satisfy four criteria: “(1) that the fee applicant be a prevailing party; (2) that the
government’s position not be substantially justified; (3) that no special circumstances make an
award unjust; and (4) that the fee applicant file the requisite application within thirty days of
final judgment.” Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th Cir. 2007) (citation
omitted).



        1
          Before the court could rule upon Cathedral Buffet’s motion for leave, it also filed its EAJA petition and
supporting materials.
 No. 17-3427                      Acosta v. Cathedral Buffet, et al.                       Page 3


       Ultimately, Cathedral Buffet intends to argue that the DOL’s position throughout this
litigation—that the church member volunteers were FLSA employees—was not substantially
justified. The preliminary question before the court is whether Cathedral Buffet’s EAJA petition
for costs and fees should be filed here and decided by this court in the first instance.

       The EAJA does not specify where a petition for costs and fees may or must be filed, but
simply provides that “a court shall award” costs and fees when the other statutory requirements
are satisfied. 28 U.S.C. § 2412(d)(1)(A). Although it remains an open question in this circuit,
other circuits hold that the courts of appeal possess jurisdiction to award fees under the EAJA.
E.g., Orn v. Astrue, 511 F.3d 1217, 1219 (9th Cir. 2008). However, “in the usual case in which
fees are sought for the entire litigation, the determination of whether the government was
‘substantially justified’ . . . is for the district court to make.” United States v. Real Property
Known as 22249 Dolorosa St., 190 F.3d 977, 981 (9th Cir. 1999). This is because “the district
court may have insights not conveyed by the record, into such matters as whether particular
evidence was worthy of being relied upon, or whether critical facts could easily have been
verified by the Government.” Pierce v. Underwood, 487 U.S. 552, 560 (1988).

       Cathedral Buffet’s arguments in favor of litigating costs and fees in this court can be
distilled to a single point: it does not wish to argue before the district court that the DOL’s
position in this case was unreasonable, when that same district court adopted the DOL’s position
following the bench trial. Although this desire is perhaps understandable, it is not a legitimate
reason to forgo judicial economy.

       To the contrary, judicial economy strongly favors having the district court adjudicate
Cathedral Buffet’s petition in the first instance. The DOL notes, correctly, that further fact-
finding may be necessary to determine if Cathedral Buffet is entitled to costs and fees under the
EAJA, and if so, to resolve any disputes regarding the amount of that entitlement. As previously
stated: “We do not have a witness chair for hearing evidence, and we are not in a position to
conduct an evidentiary hearing where proof is offered on the question of attorney’s fees.”
O’Bryan v. Saginaw Cty., 722 F.2d 313, 314 (6th Cir. 1983).
 No. 17-3427                      Acosta v. Cathedral Buffet, et al.                        Page 4


       Further, the district court has more extensive knowledge than do we regarding how the
litigation unfolded below.    While we may have the power to entertain Cathedral Buffet’s
petition, the district court is certainly better-equipped to determine the amount of fees, if any,
that should be awarded for counsel’s work at that level. And it makes little sense to entertain
Cathedral Buffet’s request for appellate costs and fees separately in this court, since that would
effectively require the parties to litigate the same issues simultaneously in two different courts.
Judicial economy will be best served by allowing the district court to rule upon Cathedral
Buffet’s petition for costs and fees in the first instance, and then allowing this court to entertain
an appeal if either party feels the district court’s fee award is deficient. See Garcia v. Schweiker,
829 F.2d 396, 398 (3d Cir. 1987).

       Accordingly, Cathedral Buffet’s motion for leave to file an EAJA petition in this court is
DENIED, and its EAJA petition is DENIED AS MOOT. Furthermore, the joint motion to hold
the EAJA petition in abeyance is also DENIED AS MOOT.

                                              ENTERED BY ORDER OF THE COURT




                                              ___________________________________
                                              Deborah S. Hunt, Clerk
