626 F. App'x 205
10th Cir.2015Background
- The H-2B program permits employers to seek temporary nonagricultural foreign workers if domestic workers are unavailable and employment won’t harm U.S. workers; DHS is statutorily charged to decide admissions “after consultation” with other agencies.
- Historically DOL issued nonbinding labor certifications (advice); DHS made de novo, final decisions on H-2B petitions even when DOL denied certification.
- In December 2008 DHS and DOL adopted companion regulations that: (1) made a DOL certification a prerequisite to DHS action, and (2) in some cases rendered DOL’s denial final and preclusive (no DHS de novo review).
- Plaintiffs (Daniels and Handy Andy), seasonal employers, challenged DHS’s 2008 regulation as an impermissible subdelegation of DHS’s decisionmaking to DOL and also alleged DOL’s denials for 2010–2012 violated the APA.
- The district court upheld the regulations and dismissed APA claims; the Tenth Circuit reversed on subdelegation, found the APA claims moot, and remanded with instructions to dismiss the moot claims for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS’s 2008 regulation impermissibly subdelegated its statutory H-2B decisionmaking to DOL | DHS’s rule effectively hands final authority to DOL because a DOL denial blocks any DHS petition or de novo review | DHS (and govt) says requiring a DOL certification is a precondition/consultation, not a delegation; DHS remains final decisionmaker | The regulation is an improper subdelegation: DOL’s denials can be final and thus supplant DHS’s statutorily assigned authority |
| Whether Congress implicitly authorized subdelegation to DOL by authorizing DHS to consult other agencies | No clear statutory authorization to let DHS cede final decision authority to an outside agency | Govt argues consultation and delegated administration permit DHS’s regulatory structure (and relied on other circuits) | No congressional authorization found; subdelegation to an outside agency is improper absent affirmative congressional intent |
| Whether DOL’s denials of plaintiffs’ 2010–2012 certification applications violated the APA | DOL’s denials were arbitrary and capricious and thus reviewable under the APA | Govt contends claims are moot because the seasons expired and no effective relief is possible | APA claims were moot (seasons expired); appellate court dismissed those claims for lack of jurisdiction and vacated the district judgment on them |
| Whether the “capable of repetition, yet evading review” exception saves the APA claims from mootness | Plaintiffs invoke the exception to avoid mootness | Govt opposes; says decisions were application-specific and unlikely to recur in same way | Exception not satisfied: plaintiffs failed to show reasonable expectation of repetition; claims moot |
Key Cases Cited
- Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837 (agency gap-filling and deference)
- United States v. Mead Corp., 533 U.S. 218 (agency rulemaking & Chevron deference analysis)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (limits on agency statutory construction in extraordinary cases)
- Fund for Animals v. Kempthorne, 538 F.3d 124 (2d Cir. 2008) (when an agency shifts final determination it effects a delegation)
- U.S. Telecom Ass’n v. F.C.C., 359 F.3d 554 (D.C. Cir. 2004) (outside-party input vs. impermissible subdelegation)
- Louisiana Forestry Ass’n v. Secretary, U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 2014) (upheld DOL certification precondition as not a subdelegation)
- Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183 (10th Cir. 2014) (presumption permitting subdelegation within an agency absent contrary intent)
- United States v. Widdowson, 916 F.2d 587 (10th Cir. 1990) (focus on congressional intent to permit subdelegation)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1109 (10th Cir. 2010) (mootness and vacatur when underlying agency action is superseded)
- Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011) (limitations on declaratory relief and mootness doctrine)