This case concerns a challenge to the validity of certain rules and regulations issued by the Department of Homeland Security and the Department of Labor, pertaining to the H-2B visa program (the "Program"). The Program governs the temporary employment of non-immigrant foreign workers in non-agricultural businesses.
Plaintiffs are business entities who rely on the Program to obtain workers, as well as trade associations whose members rely on the Program to maintain their workforces. ECF 44 (Second Amended Complaint), ¶¶ 12-17. In particular, they are Outdoor Amusement Business Association, Inc.; Maryland State Showmen's Association, Inc.; The Small and Seasonal Business Legal Center; Lasting Impressions Landscape Contractors, Inc.; Three Seasons Landscape Contracting Services, Inc.; and New Castle Lawn & Landscape, Inc. They have sued the following defendants, id. ¶¶ 18-22: the Department of Homeland Security ("DHS"); the United States Citizenship & Immigration Services ("USCIS"), a component agency of DHS that operates service centers for adjudicating H-2B visas; the Department of Labor ("DOL"); the Employment & Training Administration ("ETA"), a component agency of DOL that participates in promulgating legislative regulations to administer the H-2B program; and the Wage & Hour Division ("WHD"), another component of DOL, which promulgates legislative regulations "to enforce substantive requirements ... imposed by DOL on employers in the H-2B program." Id. ¶ 22. At times, I shall refer to the defendants collectively as the "Government."
Amici curiae are individual U.S. workers employed in occupations in which H-2B workers are also employed. See ECF 83 (Order granting amicus status). Collectively, amici support the Government.
The Second Amended Complaint (ECF 44), filed on July 5, 2016, is the operative
The suit focuses on four sets of legislative rules related to the Program. ECF 92-1 at 13-14. First, it concerns the 2015 Interim Final Rule, Temporary Non-Agricultural Employment of H-2B Aliens in the United States , promulgated on April 29, 2015, at
In the lengthy Second Amended Complaint, plaintiffs outline the purpose of the Program, as follows,
Since 1952, the purpose of the temporary employment H visas, including the H-2B program, has been to alleviate U.S. labor shortages for temporary work and provide nonimmigrant alien labor to fill those temporary or seasonal positions. The H-2B program protects the interests of both U.S. non-agricultural workers and employers, as well as the U.S. economy as a whole, through the preservation of jobs, work opportunities, and employers in the United States. The H-2B program is a legally-authorized source of employees for difficult-to-fill temporary positions, and supports the employment of countless other U.S. workers whose jobs rely on the temporary work performed by foreign workers.
The Second Amended Complaint contains six counts. In Count I, plaintiffs assert that the 2015 Program Rules, the 2015 Wage Rule, and the 2008 Labor-Certification Regulations exceed defendants' statutory authority, citing
Following the submission of the voluminous Administrative Record (see ECF 46,
The Court held oral argument on August 14, 2018. ECF 122.
For the reasons that follow, I shall grant Defendants' Motion and deny Plaintiffs' Motion.
I. Factual and Procedural Summary
A. H-2B Visa Program
1. Program History
In 1952, as part of the Immigration and Nationality Act ("INA"),
The H-2B visa program permits U.S. employers to recruit and hire foreign workers to fill temporary unskilled, non-agricultural positions for which domestic workers cannot be located. See
The statute identifies the Attorney General as the person responsible for determining whether to issue an H-2B visa. See
2. DOL's Involvement
Pursuant to the statutory direction to consult with appropriate agencies, DHS and its predecessors have for some 50 years looked to DOL for advice on whether United States workers capable of performing the desired temporary services or labor are available, and whether the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers. See, e.g. ,
Of importance here, beginning in 2008, DHS also began to require that employers petitioning DHS for H-2B visas must "apply for a temporary labor certification with the Secretary of Labor."
Notably, a "petitioner may not file an H-2B petition unless the United States petitioner has applied for a labor certification with the Secretary of Labor ... within the
On April 29, 2015, DHS and DOL jointly issued revised H-2B regulations: the Temporary Non-Agricultural Employment of H-2B Aliens in the United States ,
The 2015 Interim Final Rule and 2015 Final Rule replace the prior H-2B regulations published on December 19, 2008, at
B. The Statutes
Several sections of the INA are relevant here. As a general matter, the "Secretary of Homeland Security [is] charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens."
One of the Secretary's statutory responsibilities is the administration of the H-2B visa program. In particular, "[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the [Secretary] may by regulations prescribe."
Section 1184(c)(1) of Title 8 of the U.S. Code provides: "The question of importing any alien as a nonimmigrant ... in any specific case or specific cases shall be determined by the [Secretary of DHS], after consultation with appropriate agencies of the Government, upon petition of the importing employer." (Emphasis added.) This case concerns, among other issues, the breadth of the term "consultation," which is not defined in the statute, as well as the scope of the Secretary's ability to "confer or impose upon any employee of the United States ... any of the powers, privileges, or duties conferred or imposed ... upon officers or employees of the Service."
C. Litigation History
Consistent with the regulations described above, DOL has established various procedures to determine whether a qualified U.S. worker is available to fill the job described in the employer's petition. Although, as noted, DOL had issued regulations concerning labor certifications as far back as 1968, for many years DOL set forth specific requirements on employers "via a series of General Administration Letters ('GALs') and Training and Employment Guidance Letters ('TEGLs')." CATA I ,
"In order to issue a labor certification, the DOL must determine as a threshold matter, that qualified United States workers are not available to fill the position for which an employer seeks foreign workers." Comite de Apoyo a los Trabajadores Agricolas v. Solis ,
The 2008 Wage Rule contained "numerous significant changes from the prior regime." CATA I ,
At the same time that litigation was ongoing about DOL's 2008 Wage Rule, DOL began to promulgate a series of separate rules that addressed a broader range of revisions to the H-2B labor certification process, many of which were prompted by CATA I . Temporary Non-Agricultural Employment of H-2B Aliens in the United States ,
In 2012, other plaintiffs in Florida obtained a "preliminary injunction prohibiting DOL from enforcing" the 2012 Program Rules while litigation on the merits was ongoing. Bayou Lawn & Landscape Servs. v. Solis , 3:12-183-MCR-CJK,
By the time the Eleventh Circuit considered the Government's appeal, DOL and DHS had issued the 2015 Rules. As a result, the challenge to the 2012 Program Rules was rendered moot, and the Eleventh Circuit vacated the district court's order and remanded the case. Bayou Lawn & Landscape Servs. v. Sec'y, U.S. Dep't of Labor ,
In 2012, around the same time as the Bayou I challenge, other plaintiffs in the Eastern District of Pennsylvania (not those in the CATA cases), challenged DOL's rules on a theory similar to the one used in Bayou I . See Louisiana Forestry Ass'n, Inc. v. Solis ,
In 2014, DOL promulgated a proposed rule related to the Wage Methodology calculations for the H-2B program. Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program ,
The CATA plaintiffs sued again, in the Eastern District of Pennsylvania, challenging on various grounds DOL's continued use of private wage surveys. See CATA III ,
Three months after CATA III , the Northern District of Florida vacated the 2008 DOL Rule and found, following Bayou , that DOL had no independent authority to issue legislative rules for the H-2B program. Perez v. Perez , No. 14-cv-682,
Because of the problems the Perez order caused, the Perez Court temporarily
As a result of the Perez order and the temporary stay, DHS and DOL invoked the "good cause" exception in the Administrative Procedure Act ("APA") to make the 2015 Wage Rule effective immediately. Id. at 24152 -53; see also
Simultaneous with the 2015 Wage Rule, DHS and DOL jointly issued the 2015 Interim Final Rule containing the 2015 Program Rules and the 2015 Enforcement Rules. The 2015 Program Rules are "virtually identical" to the 2012 Program Rules. Temporary Non-Agricultural Employment of H-2B Aliens in the United States ,
As with the 2015 Wage Rule, the departments invoked the APA's "good cause" exception to proceed without notice and comment. Id. at 24047. Nevertheless, the departments sought "public input on every aspect of this interim final rule (even though virtually every provision herein has already gone through one round of notice and comment), and [planned to] assess that input and determine whether changes are appropriate." Id. at 24050.
The CATA plaintiffs once again challenged these rules. In CATA IV , the plaintiffs challenged only the 2015 Wage Rule. CATA v.Perez ,
D. Plaintiffs' Suit
As discussed, challenges to recent H-2B regulations have taken one or both of two approaches: Some contest the substance of the DHS or DOL Program regulations, such as the methodology by which H-2B wages are determined, and some contest the structure of the Program.
In this case, plaintiffs challenge the structure of the Program. They contend that DHS and DOL violated the INA and the APA, codified in various sections of Title 5 of the U.S. Code, as well as the United States Constitution, by jointly issuing certain regulations with respect to the Program. ECF 44, ¶ 4; see also id. ¶¶ 94, 96. In particular, plaintiffs argue that DOL has no lawful authority to engage in legislative rulemaking with regard to the Program. See ECF 92-1 at 13.
According to plaintiffs, "Congress has granted DHS sole rulemaking and adjudicative
In particular, plaintiffs contest the 2015 Program Rules, the 2015 Wage Rule, and the 2015 Enforcement Rules, as well as the 2008 Labor-Certification Regulations. The 2015 Rules establish "the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a[n H-2B] nonimmigrant worker,"
Specifically, the 2015 Program Rules "expand[ ] the ability of U.S. workers to become aware of the job opportunities in question and to apply for opportunities in which they are interested" and "requir[e] that U.S. workers in corresponding employment receive the same wages and benefits as the H-2B workers." Seeid . at 24043. The regulations also provide additional protections to H-2B workers (such as guaranteed minimum hours and reimbursements for visa and transportation expenses) and to whistleblowers. See id. The 2015 Wage Rule "set[s] the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with applications for temporary labor certification." See id. at 24146. In addition, plaintiffs challenge certain DHS regulations, "collectively referred to and identified ... as DHS's Labor-Certification Regulations." ECF 44, ¶ 2; see also id. ¶ 34;
According to plaintiffs, the regulatory scheme is "unworkable" and causes unnecessary delay in visa processing. ECF 44, ¶ 8. They assert that "H-2B workers are now arriving weeks, and often months, after employers' dates of need," which has harmed the businesses of plaintiffs and/or their members.
II. Standard of Review
The APA provides for judicial review of a final agency action. See
As noted, the Government submitted the Administrative Record. ECF 46; ECF 87; ECF 129. Generally, "claims brought under the APA are adjudicated without a trial or discovery, on the basis of an existing administrative record...." Audubon Naturalist Soc'y of the Cent. Atl. States, Inc. v. U.S. Dep't of Transp.,
"The APA provides that a reviewing court is bound to 'hold unlawful and set aside agency action' for certain specified reasons, including whenever the challenged act is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Friends of Back Bay,
Notably, "[t]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency...." Motor Vehicle Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co.,
" 'Deference is due where the agency has examined the relevant data and provided an explanation of its decision that includes 'a rational connection between the facts found and the choice made.' ' "
III. Discussion
A. 2008 Labor-Certification Regulations
As noted, plaintiffs challenge the 2015 Wage Rules, the 2015 Program Rules, the 2015 Enforcement Rules, and the 2008 Labor-Certification Regulations. I shall discuss the challenges to each of these rules in turn, along with defendants' defenses to them.
In 2008, DHS promulgated a regulation governing the H-2B program. See
Plaintiffs contest, inter alia , the requirement for an employer to first obtain "a favorable labor certification determination" from DOL before the employer may file an H-2B petition. See, e.g. , ECF 44, ¶¶ 34-39.
1. Statute of Limitations
About ten years ago, DHS promulgated the regulation found in
"[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues."
Despite plaintiffs' vague protests to the contrary, this suit clearly represents a facial, rather than an as-applied, challenge. See ECF 44, ¶¶ 94, 95, 96 (challenging "Defendants' issuance of the 2015 Program Rules, the 2015 Wage Rule, and DHS's Labor-Certification Regulations" (emphasis added) ); see also Hire Order ,
In an attempt to forestall this conclusion, plaintiffs invoke the "reopening doctrine," ECF 111-1 at 50, a theory derived from D.C. Circuit case law. According to this doctrine, "where an agency conducts a rulemaking or adopts a policy on an issue at one time, and then in a later rulemaking restates the policy or otherwise addresses the issue again without altering the original decision," the six-year statute of limitations begins anew when the agency "reopens" the original decision. Nat'l Ass'n of Reversionary Prop. Owners v. Surface Transp. Bd. ("NARPO") ,
To determine whether an agency has "reopened" its earlier rulemaking and thus restarted the statute of limitations, a court "must look to the entire context of the rulemaking including all relevant proposals and reactions of the agency." NARPO ,
Even assuming, arguendo , that the Fourth Circuit would recognize the reopening doctrine, it does not apply here. See Indep. Cmty. Bankers of Am. v. Nat'l Credit Union Admin. , 1:16-1141-JCC-TCB,
First, although the 2015 Interim Final Rule "establishes the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status,"
Under DHS regulations, an H-2B petition for temporary employment must be accompanied by an approved temporary labor certification from DOL, which serves as DOL's advice to DHS regarding whether a qualified U.S. worker is available to fill the petitioning H-2B employer's job opportunity and whether a foreign worker's employment in the job opportunity will adversely affect the wages or working conditions of similarly employed U.S. workers. See 8 CFR 214.2(h)(6)(iii)(A) and (D).
This interim final rule, which is virtually identical to the 2012 final rule that DOL developed following public notice and comment, improves DOL's ability to determine whether it is appropriate to grant a temporary employment certification.
* * *
The Departments believe that these procedures and additional worker protections will lead to an improved temporary employment certification process.
In other words, although the 2015 Interim Final Rule reiterates the temporary labor certification requirement, as set forth in the 2008 Labor-Certification Regulations, the 2015 Interim Final Rule's clear objective is to establish "the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a nonimmigrant worker in H-2B status." Id. at 24042 ; see also id. at 24045 ("DHS has therefore made DOL's approval of a temporary labor certification a condition precedent to the acceptance of the H-2B petition.... This interim final rule establishes the process by which employers obtain a temporary labor certification and the protections that apply to H-2B workers and corresponding workers.").
In arguing to the contrary, plaintiffs point to "the second line of the 2015 IFR," which says that the rules relate to " '8 C.F.R. Part 214.' " See
Second, plaintiffs argue that in the 2015 Interim Final Rule, DHS "affirmatively requested public comment on all issues." ECF 111-1 at 51. To be sure, the 2015 IFR states that it "seek[s] public input on every aspect of this interim final rule."
Finally, plaintiffs contend that DHS "constructively reopened" the 2008 regulation
As a result, plaintiffs' challenge to the 2008 Labor-Certification Regulations is barred by the six-year statute of limitations.
2. Scope of
Because plaintiffs' challenge to the 2008 Labor-Certification Regulations is time-barred, I need not consider whether the regulations are within the scope of the relevant statutes. However, even if plaintiffs' claims are not time-barred, the 2008 Labor-Certification Regulations would survive.
Defendants maintain that
Plaintiffs rely, inter alia , on G.H. Daniels III & Assocs., Inc. v. Perez ,
The Tenth Circuit's decision is contrary to the Third Circuit's ruling in Louisiana Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor ,
id="p716" href="#p716" data-label="716" data-citation-index="1" class="page-label">*716
In the view of the Third Circuit, DHS "did not impermissibly subdelegate all of its authority in this area."
In support, the Third Circuit cited U.S. Telecom Ass'n v. F.C.C. ,
On this question, I am persuaded by the Third Circuit's analysis. As that court noted,
This conclusion is further bolstered by
Thus, in my view, the 2008 Labor-Certification Regulations follow from a reasonable interpretation of DHS's statutory authority.
B. 2015 Rules
Plaintiffs challenge the 2015 Program Rules, the 2015 Wage Rule, and the 2015 Enforcement Rules on several grounds. As
1. Identification of Authority
A notice of proposed rulemaking must contain a "reference to the legal authority under which the rule is proposed."
In my view, DHS and DOL adequately cited the legal basis for their authority to issue the 2015 Rules. The 2015 Rules cite, inter alia ,
2. DOL's Rulemaking Authority
Whether DOL may lawfully issue legislative rules concerning the Program is a close question. Plaintiffs correctly observe that "only Congress may grant rulemaking, adjudicative, or enforcement authority to an agency." ECF 92-1 at 30; see Bowen v. Georgetown Univ. Hosp. ,
However, for several reasons, I am ultimately convinced that the Program's current regulatory scheme is consistent with Congress's intent.
a.
The Government relies heavily on the Third Circuit's decision in Louisiana Forestry ,
The district judge recounted, as discussed earlier, that "the modern H-2B visa program was created in 1986 through the enactment" of the IRCA, "which bifurcated the existing H-2 visa program into agricultural [H-2A] and non-agricultural [H-2B] components. At the time of IRCA's enactment, the DOL regulations governing the labor certification process for non-agricultural, unskilled guest workers already
The 1968 rules, then published at
The district court in Louisiana Forestry also emphasized that Congress revisited this part of the U.S. Code when it passed the IRCA, splitting the H-2 program into agricultural (H-2A) and non-agricultural (H-2B) components. The IRCA altered
Plaintiffs argue that the doctrine of expressio unius weighs against DOL's authority, because Congress "imposed a labor-certification requirement" for the H-2A program, but did not mention DOL or labor certifications under the authorizing statute for the H-2B program. See ECF 111-1 at 20. This is a plausible interpretation, but it is not the only interpretation. It may be, as counsel for amici suggested during oral argument, that Congress sought to direct the administration of the H-2A program by specifically designating DOL and the Department of Agriculture as the only "appropriate agencies of Government" with which to consult. See ECF 126 at 48;
Of course, for more than 50 years, DHS (or its predecessor) has consulted with DOL. And, throughout that period, Congress has never gainsaid that decision or DOL's rulemaking in the context of the Program. As Judge Davis observed in Louisiana Forestry ,
Certainly, Congress was aware that DOL was involved in rulemaking. "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and adopt that interpretation when it re-enacts a statute without change." Lorillard v. Pons ,
Accordingly, Judge Davis concluded that, "at the time of IRCA's enactment, Congress was presumptively aware of the Court's interpretation of
"It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress." Commodity Futures Trading Comm'n v. Schor ,
Furthermore, as defendants assert, "Congress has chosen (on multiple occasions) to endorse the agencies' joint action and/or DOL's participation in the H-2B program by funding the very program Plaintiffs now challenge." ECF 102-1 at 38 n.12 (citing Department of Labor Appropriations Act, 2016, Pub. L. No. 114-113, §§ 111-13, 129 Stat 2242, 2599 (2015)). Congress has referred to rules promulgated by DOL pertaining to the Program in both appropriations bills (see
Plaintiffs take issue with this argument, calling it a "post hoc rationalization," and noting again that Congress has never extended explicit rulemaking authority to DOL in this context. See ECF 111-1 at 43-44. They posit,
But, in my view, and in light of the principles articulated by the Supreme Court, Congress has not been silent. In Louisiana Forestry ,
b.
I shall briefly explain why I agree with the Third Circuit, rather than the Eleventh Circuit, on the question of DOL's rulemaking authority.
In Bayou ,
We reject this interpretation of "consultation." Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the "authority to issue legislative rules to structure [his] consultation with DHS." This is an absurd reading of the statute and we decline to adopt it.
DHS was given overall responsibility, including rulemaking authority, for the H-2B program. DOL was designated a consultant. It cannot bootstrap that supporting role into a co-equal one.
Indeed, if DHS decided tomorrow that, rather than collaborating with DOL in the same way it and its predecessor have done for half a century, it preferred to consult only with the Department of Transportation-or, as the Bayou Court suggests, with a particular employee at the Department of Transportation-that new consultant's ability to issue rules would be gravely in doubt. For one, plaintiffs could make a strong argument that the choice to consult with the Department of Transportation, which has no experience or expertise in assessing labor markets, is an arbitrary and capricious one. More important, that new consulting relationship would bear none of the hallmarks of Congressional acknowledgement and approval that are present here.
I acknowledge the apparent rarity of finding rulemaking authority without explicit statutory authority. Plaintiffs assert in their supplemental briefing, ECF 124 at 3-4: "The only individual that has ever determined that DOL should be a consultant is the Secretary of Homeland Security or her predecessors." But, that is not the whole story. As discussed, Congress has repeatedly and over a long period recognized DOL's role, and the validity of its rules, albeit not via statute. See Louisiana Forestry ,
3. Defendants' Other Arguments
a. The Delegation Provision of the INA
The Government maintains that
Although the scope of DHS's authority to delegate under § 1103(a)(6) is something of a gray area, I am not entirely convinced by defendants' argument. For one, the statutory language does not seem to support a delegation of this breadth. Section 1103(a)(6) provides: "[The Secretary of Homeland Security] is authorized to confer or impose upon any employee of the United States ... any of the powers,
The language presents two potential obstacles to defendants' interpretation. First, is rulemaking authority one of the "powers, privileges, or duties" conferred on "officers or employees of the Service?" It would seem not. In the same statutory section, Congress has instructed that the Secretary of Homeland Security "shall establish such regulations ... as he deems necessary for carrying out his authority...."
Second, given the general rule that only Congress can confer rulemaking authority, discussed supra , there would appear to be a presumption against the theory that the head of one agency can in fact assign the power to issue binding rules to "any employee" of another agency. Under the Government's reading, could the Secretary of Homeland Security confer rulemaking authority on a health inspector for the Department of Agriculture, or on a private in the U.S. Army? Defendants have offered no limiting principle for their interpretation. On this basis, it is not clear that DHS validly delegated rulemaking authority to DOL, such that DOL could issue the 2015 Rules.
My conclusion is qualified, however, in the context of the 2015 Enforcement Rules. Section 1184(c)(14)(B) provides: "The Secretary of Homeland Security may delegate to the Secretary of Labor, with the agreement of the Secretary of Labor, any of the authority given to the Secretary of Homeland Security under subparagraph (A)(i)." Subparagraph (A)(i) authorizes the Secretary of Homeland Security to impose administrative remedies on employers who fail to meet any of the conditions of their H-2B petitions. Id. § 1184(c)(14)(A).
Pursuant to this section, DHS formally redelegated a portion of its enforcement authority to DOL in January of 2009. See AR003764-65 ("Delegation of Authority to the Department of Labor under Section 214(c)(14)(A) of the Immigration and Nationality Act"). The Inter-Agency Agreement accompanying the delegation letter provided that "DOL will issue regulations as needed for the implementation and operation of the enforcement authority...." AR003768. Plaintiffs concede that DHS may delegate some of its enforcement power under the statute. See ECF 92-1 at 50. However, they assert that the delegable authority does not include the power to make rules or regulations. Id. at 50-51.
Given that Congress clearly anticipated that DOL would be delegated some enforcement authority, it seems likely that Congress also anticipated that DOL might need to engage in limited rulemaking to support its enforcement efforts.
Plaintiffs do not discuss the 2015 Enforcement Rules with any degree of particularity. See id . at 50-52. DOL has been delegated the power to "impose administrative remedies" on an employer, "in addition to any other remedy authorized by law," once DOL "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" an H-2B worker. See
b. Joint Rulemaking
Defendants also maintain that, were the Court to conclude that DOL has no authority to issue rules, this defect could be somehow remedied by the "joint issuance"
Defendants do not point to any examples of joint rulemaking where only one agency has rulemaking authority, and the other agency simply consents to be subject to those rules. Rather, they contend that "neither the INA nor the APA prohibit the agencies' jointly issued rules, and plaintiffs cite no authority that mandates that joint rules may only be issued through express congressional authorization." ECF 102-1.
To be sure, joint rulemaking is not prohibited, and it may even be advisable where agencies have overlapping jurisdiction. But, the Government has presented no authority to suggest that joint rulemaking carries any independent legal significance.
Defendants assert that "the agencies' joint participation in 2015 eliminates any doubt that any part of the rules was issued without ample authority." ECF 102-1 at 44. As support for this proposition, defendants quote from their own rule: "To ensure that there can be no question about the authority for and validity of the regulations in this area, DHS and DOL ... together are issuing this interim final rule."
The Government also relies on the decisions of the Northern District of Florida and the Eleventh Circuit to support their theory that joint rulemaking solves prior problems of authority. They note that "the same district court that twice issued an injunction against DOL's unilaterally issued H-2B rules ... has since concluded that the joint rules at issue in this case are a valid exercise of DHS's authority." ECF 102-1 at 44 (citing Bayou III ,
On this question, the significance of the Eleventh Circuit's opinion in Bayou ,
In the alternative, defendants assert, in a footnote, that "it is unnecessary for the Court to reach the question of DOL's rulemaking authority because the joint rules are a proper exercise of DHS's rulemaking
IV. Conclusion
Plaintiffs' suit attacks the 2008 Labor-Certification Regulations and the 2015 Rules. Their challenge to the former is time-barred, and, even if it were not, the regulations are consistent with the statute. Furthermore, I am persuaded that the 2015 Rules are consistent with Congress's intent, given DOL's long history of rulemaking in the context of the Program.
For the reasons stated above, I shall DENY Plaintiffs' Motion and I shall GRANT Defendants' Motion. Judgment shall be entered in favor of the Government.
A separate Order follows, consistent with this Memorandum Opinion.
Notes
According to plaintiffs, the 2015 Program Rules consist of ETA's administrative regulations and WHD's enforcement regulations. ECF 44, ¶ 40. The 2015 Enforcement Rules represent "WHD's enforcement portion of the 2015 Program Rules."
As noted, the 2015 Enforcement Rules are alleged to be part of the 2015 Program Rules, "except when separately identified." ECF 44, ¶ 40.
Government counsel provided Chambers with both a compact disc and a paper copy of the record. See ECF 46; ECF 87. However, counsel failed to file a copy with the Clerk. Therefore, by Order of September 7, 2018, the Court directed counsel to do so. ECF 127. A copy of the administrative record was docketed on September 12, 2018, in paper format. See ECF 129.
Plaintiffs' Motion was filed as ECF 91. However, plaintiffs submitted a revised version of their memorandum of law in support of their Motion. See ECF 92-1.
Plaintiffs' Reply was initially docketed at ECF 110. They provided a corrected submission, docketed at ECF 111-1.
Amici were permitted to argue at the hearing.
Plaintiffs refer to the Interim Final Rule as the "2015 Program Rules" and the "2015 Enforcement Rules." They refer to the Final Rule as the "2015 Wage Rule." ECF 44, ¶ 2. The Government refers to the Interim Final Rule as the "2015 Interim Final Rule" or "2015 IFR." And, they refer to the Final Rule as the "2015 Wage Final Rule." ECF 69 at 11.
The statute, as initially written, assigned this duty to the Attorney General. However, as noted, the Homeland Security Act of 2002 transferred enforcement of the immigration laws from the Attorney General to the Secretary of DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 402,
As the Third Circuit observed, there is technically no circuit split, as the "three-member panel in Bayou opined only on whether the District Court abused its discretion in finding that the employer-plaintiffs were likely to succeed on the merits of their challenge to the DOL's rulemaking authority, not on whether the DOL actually has that authority or not." Louisiana Forestry ,
As the agencies explain, the 2013 DHS/DOL Wage IFR left almost all "of the wage methodology and procedures from the 2008 [DOL] rule untouched." 2015 DHS/DOL Wage Rule,
The Government has not seriously contested plaintiffs' standing to bring this suit at any point in the litigation. Moreover, plaintiffs have adequately alleged economic harm as a result of the regulations. See Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co. ,
Notably, in that case, the court did not consider the Government's alternative argument, i.e., that Congress had authorized delegation under