We were co-counsel for plaintiffs in this Administrative Procedure Act (APA) challenge to the Department of Labor (DOL) “special procedures” for employers seeking to use the H-2A program to hire temporary foreign workers for jobs in sheepherding, goatherding, and the open range production of livestock. Pursuant to the Immigration and Nationality Act (INA), the Secretary of Labor must certify that an employer seeking to use the H-2A program to bring nonimmigrant foreign workers to the United States to perform agricultural work on a temporary basis has given preference to U.S. workers over foreign workers for the available positions, and that, to the extent foreign workers are employed, their employment will not adversely affect the wages and working conditions of U.S. workers. DOL engaged in a rulemaking process that culminated in the publication of regulations governing the H-2A program generally. For H-2A applications for jobs in sheepherding, goatherding and the open range production of livestock, however, DOL issued “special procedures” that were not subject to the rulemaking process. By issuing “special procedures” without first providing notice and an opportunity for interested parties to comment, defendants violated the APA.
Plaintiffs sought declaratory and injunctive relief to remedy the APA violation and to ensure that the H-2A program does not have an adverse effect on the employment opportunities, wages, and working conditions of workers in the United States. In February 2013, a federal district court concluded that plaintiffs lacked standing and dismissed the case. Plaintiffs appealed. In June 2014, the D.C. Circuit reversed, holding that the plaintiffs had both Article III and prudential standing to pursue their claim because they were participants in the herding labor market and had been injured by the “special procedures.” The Court concluded that the DOL rules are “legislative” rules that set U.S. policy for ensuring that the admission of foreign herders does not adversely affect American workers. Given the nature of the rules, the Court held that DOL violated the APA by adopting the rules without notice and an opportunity for the public to comment. It found that the rules adversely affected herders by lowering wages and worsening working conditions.
On remand, the district court ordered DOL to conduct a new rulemaking with notice to the public and an opportunity to comment. The deadline for issuance of the final rule is November 1, 2015.