Mendoza v. Solis
72 F. Supp. 3d 168
D.D.C.2014Background
- Plaintiffs are U.S. workers who left herding jobs by May 2011 due to substandard wages and conditions they attribute to the hiring of foreign herders under the H-2A program.
- They challenged two TEGLs published August 4, 2011 to implement the foreign worker visa program, which established minimum wages and working conditions for U.S. sheepherders, goatherders, and open-range workers.
- The D.C. Circuit held the TEGLs subject to APA notice-and-comment requirements because they functioned as legislative rules altering the regulatory scheme for herding operations.
- The court remanded to craft a remedy, considering factors like disruption to the industry and speed of subsequent rulemaking for new H-2A regulations.
- On remand, the court directed the parties to propose a remedy schedule; the court ultimately adopted a schedule requiring a Notice of Proposed Rulemaking by March 1, 2014 and a final rule by November 1, 2015, with an effective date no later than 30 days after publication or December 1, 2015.
- The TEGLs were to be vacated upon the effective date of the new rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did TEGLs violate the APA notice-and-comment rulemaking? | Mendoza asserts TEGLs were subject to notice-and-comment and thus invalid. | Defendants contend schedule considerations and interagency processes suffice to cure defect without vacatur yet. | TEGLs violated the APA; remedy includes vacatur upon new rule's effective date. |
| What timetable should govern the replacement-rulemaking? | Rulemaking completed quickly (120 days) with final rule by ~March 2015. | Rulemaking should extend up to 365 days to ensure proper analysis. | Adopt Federal Defendants' schedule: NOI by March 1, 2014; final rule by November 1, 2015. |
| Should TEGLs be vacated, and when? | Vacate TEGLs effective with the new rule; vacatur tied to rule’s effective date. | Oppose automatic vacatur during the process. | Vacatur of TEGLs upon the effective date of the new rule. |
| What should be the rule’s effective date? | Rule become effective 30 days after publication. | Not opposed to 30-day post-publication effectiveness. | Effective no later than 30 days after publication, or December 1, 2015, whichever is earlier. |
Key Cases Cited
- Heartland Reg’l Med. Ctr. v. Sebelius, 566 F.3d 193 (D.C. Cir. 2009) (vacatur favored where notice defects are present and disruption can be mitigated)
- Allied-Signal, Inc. v. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (framework for evaluating vacatur of flawed agency actions)
- Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014) (fundamental flaws like deficient notice often require vacatur)
- Fox Television Stations, Inc. v. FCC, 280 F.3d 1027 (D.C. Cir. 2002) (considerations of disruption and remedial measures in rulemaking)
- Sprint Corp. v. Fed. Commc’n Comm’n, 315 F.3d 369 (D.C. Cir. 2003) (notice-and-comment absence supports vacatur tendency)
- Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011) (remand/invalidation where process deficiencies exist)
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (remand to craft remedy for APA violation; notice-and-comment required)