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Outdoor Amusement Business Association, Inc. v. Department of Homeland Security

United States District Court, D. Maryland

September 12, 2018

OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC., et al., Plaintiffs,
v.
DEPARTMENT OF HOMELAND SECURITY et al., Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander, United States District Judge

         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 complaint. Plaintiffs seek declaratory and injunctive relief, claiming that the regulations promulgated by defendants to administer the Program are unlawful because DHS, to which Congress has delegated responsibility for the Program, impermissibly redelegated substantial parts of the Program's standards and administration to DOL. See ECF 44.

         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 80 Fed. Reg. 24042. That rule consists of two components: the “2015 Program Rules, ” published at 20 C.F.R. § 655, and the “2015 Enforcement Rules” (a subset of the 2015 Program Rules, often referred to separately), published at 29 C.F.R. § 503. See ECF 44, ¶ 2. Next, plaintiffs challenge the 2015 Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, also promulgated on April 29, 2015, at 80 Fed. Reg. 24146. ECF 44, ¶ 2. This rule includes the “2015 Wage Rule, ” also published at 20 C.F.R. § 655. I shall refer to the 2015 Program Rules, the 2015 Wage Rule, and the 2015 Enforcement Rules collectively as the “2015 Rules.”[1] Last, plaintiffs challenge a number of subsections of what they term “DHS's Labor-Certification Regulations, ” published in 2008 at 8 C.F.R. §§ 214.1 and 214.2. I shall refer to these rules as the 2008 Labor-Certification Regulations.

         In the lengthy Second Amended Complaint, plaintiffs outline the purpose of the Program, as follows, id. ¶ 26:

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 5 U.S.C. §§ 558 and 706(2)(C). Count II challenges the disputed regulations as arbitrary and capricious, citing 5 U.S.C. § 706(2)(A). In Count III, plaintiffs assert that the regulations are unconstitutional and violate 5 U.S.C. § 706(2)(B). Count IV is titled “Compulsion of Agency Action Unlawfully Withheld.” It is predicated on 5 U.S.C. § 706(1). Count V is titled “Mandamus, ” pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the All Writs Act, 28 U.S.C. § 1651. Finally, Count VI seeks a declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.[2]

         Following the submission of the voluminous Administrative Record (see ECF 46, ECF 87, ECF 129), [3] the parties submitted cross-motions for summary judgment. Plaintiffs' motion (ECF 91) is supported by a memorandum of law (ECF 92-1) (collectively, “Plaintiffs' Motion”), and exhibits.[4] Defendants filed a combined opposition to Plaintiffs' Motion, along with their own motion for summary judgment (ECF 102), supported by a Memorandum of Law. ECF 102-1 (collectively, “Defendants' Motion”). Thereafter, plaintiffs filed a combined opposition to Defendants' Motion and reply. See ECF 111-1 (“Plaintiffs' Reply”).[5] Defendants also replied. ECF 113 (“Defendants' Reply”). And, amici submitted a memorandum of law in opposition to Plaintiffs' Motion. ECF 105 (“Amici Opposition”).

         The Court held oral argument on August 14, 2018. ECF 122.[6] Following the hearing, the Court invited limited supplemental briefing. ECF 121. Supplemental briefing was submitted by amici (ECF 123), plaintiffs (ECF 124), and the Government (ECF 125). The transcript for the motions hearing is docketed at ECF 126.

         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”), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., “Congress created the nonimmigrant H-2 visa category for temporary agricultural and non-agricultural employment that did not require advanced education, skills, or training.” ECF 44, ¶ 25. Until 1986, one program existed for all temporary foreign workers. “Congress decided, however, that the earlier program did not ‘fully meet the need for an efficient, workable and coherent program that protect[ed] the interests of agricultural employers and workers alike' and therefore amended the INA as part of the Immigration Reform and Control Act of 1986 to provide for two separate programs: the H-2A program for agricultural workers and the H-2B program for non-agricultural workers.” Bayou Lawn & Landscape Servs. v. Johnson, 173 F.Supp.3d 1271, 1276 (N.D. Fla. 2016) (quoting H.R. Rep. No. 99-682, pt. 1, at 80); see also Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(ii)(a)-(b)).

         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 8 U.S.C. § 1101(a)(15)(H)(ii)(b); Louisiana Forestry Ass n, Inc. v. Sec'y of Labor, 745 F.3d 653, 658 (3d Cir. 2014). An H-2B employee is defined as a nonimmigrant alien “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country . . . .” 8 U.S.C. § 1101(a)(15)(H)(ii)(b).

         The statute identifies the Attorney General as the person responsible for determining whether to issue an H-2B visa. See 8 U.S.C. § 1184(c)(1). However, Congress transferred enforcement of immigration laws to the Secretary of DHS under the Homeland Security Act of 2002. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (2002). Therefore, DHS is now charged with determining, “upon petition of the importing employer, ” whether to grant an H-2B visa “after consultation with appropriate agencies of the Government.” 8 U.S.C. § 1184(c)(1).

         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., 8 C.F.R. § 214.2(h)(6)(iii)(A). In 1968, DOL first issued formal regulations establishing standards and procedures for certifying employers' requests to import H-2 workers. See 33 Fed. Reg. 7570 (May 22, 1968). DOL later supplemented the regulations with informal, non-binding guidance letters, which were promulgated without notice and comment. See Comite De Apoyo A Los Trabajadores Agricolas v. Solis, No. CIV.A 09-240, 2010 WL 3431761, at *2 (E.D. Pa. Aug. 30, 2010) (“CATA I ”) (discussing issuance of guidance letters). Then, in 2008, DOL published another formal regulation governing the labor certification process. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture (H-2B Workers), 73 Fed. Reg. 78020 (Dec. 19, 2008) (“2008 DOL Rule”). These regulations concerned, inter alia, the wages that employers were required to pay H-2B workers. See 73 Fed. Reg. at 78056-57. These 2008 rules issued by DOL were the precursors to the 2015 Wage Rule and the 2015 Program Rules, and gave rise to a number of challenges to the administration of the H-2B program, of which this case is one.

         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.” 8 C.F.R. § 214.2(h)(6)(iii)(A). Pursuant to certain DHS labor certification regulations, issued in 2008, DOL is directed to determine whether (1) qualified workers in the United States are available to fill the petitioning employer's job and whether (2) an alien's employment will adversely affect wages and working conditions of similarly employed U.S. workers. 8 C.F.R. § 214.2(h)(6)(iii)(A). If, after reviewing an employer's job offer and recruitment efforts, the Secretary of Labor determines that U.S. workers are not available to fill the jobs described in the employer's application and that the offered terms of work will not adversely affect similarly employed U.S. workers, DOL issues a “temporary labor certification” that the employer must attach to the H-2B visa petition it submits to DHS. 8 C.F.R. §§ 214.2(h)(6)(iii)(C) and 214.2(h)(6)(iv)(A).

         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 time limits prescribed or accepted by each, and has obtained a favorable labor certification determination . . . .” Id. § 214.2(h)(6)(iii)(C). Thus, without a temporary labor certification from DOL, a petitioner cannot obtain H-2B visas. DHS provides no mechanism for an employer to challenge DOL's determination on this question.

         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, 80 Fed. Reg. 24042 (Apr. 29, 2015) (“2015 Interim Final Rule”), and the Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 80 Fed. Reg. 24146 (Apr. 29, 2015) (“2015 Final Rule”). ECF 44, ¶ 2. Both the 2015 Interim Final Rule and the 2015 Final Rule are in effect.[7]

         The 2015 Interim Final Rule and 2015 Final Rule replace the prior H-2B regulations published on December 19, 2008, at 73 Fed. Reg. 78020 (“2008 Program Rules”). The 2008 Program Rules were regarded as “vulnerable to challenges by employers in current and future enforcement proceedings based on the ground that the regulations . . . are void because DOL exceeded its statutory authority in unilaterally issuing the 2008 rule.” See 80 Fed. Reg. at 24048-49.

         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.” 8 U.S.C. § 1103(a)(1). As such, Congress has directed the Secretary to “establish such regulations . . . and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.” Id. § 1103(a)(3). Notably, Congress has provided that the Secretary “is authorized to confer or impose upon any employee of the United States, with the consent of the head of the Department or other independent establishment under whose jurisdiction the employee is serving, any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.” Id. § 1103(a)(6). “Service means U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and/or U.S. Immigration and Customs Enforcement, as appropriate in the context in which the term appears.” 8 C.F.R. § 1.2.

         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.” 8 U.S.C. § 1184(a)(1).[8] Section 1101(a)(15)(H)(ii)(b) of Title 8 is the source of the term “H-2B.” As noted, it defines an H-2B worker as a nonimmigrant alien “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country ....”

         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. worked 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, 2010 WL 3431761, at 2. These letters were promulgated without notice and comment. See Id. In 2008, however, DOL promulgated a regulation designed “to modernize the procedures for the issuance of labor certifications to employers sponsoring H-2B nonimmigrants.” 73 Fed. Reg. 78020, at 78020 (Dec. 19, 2008) (codified at 20 C.F.R. §§ 655-56) (“2008 DOL Rule”). The 2008 DOL Rule contained two major components: the 2008 Program Rules, which set forth the criteria for obtaining a temporary labor certification (73 Fed. Reg. at 78058), and the 2008 Wage Rule, which established the method for determining the prevailing wage for labor certification purposes. See Id. at 78056.

         “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, 933 F.Supp.2d 700, 704 (E.D. Pa. 2013) (“CATA II); see 8 C.F.R. § 214.2(h)(6)(iii). Because the availability of workers is inextricably linked to an employer's wages, “the DOL may only issue labor certifications where United States workers are unavailable to fill a given position at the occupation's ‘prevailing wage.'” Id. (citing 2008 DOL Rule). As a result, before applying for a labor certification, “an employer must first obtain from the DOL a prevailing wage determination for the area of intended employment, submit a work order with a state workforce agency, ” and then “advertise the position at a wage equal to or higher than the prevailing wage, as established by the DOL.” Id. at 705 (citing 2008 DOL Rule).

         The 2008 Wage Rule contained “numerous significant changes from the prior regime.” CATA I, 2010 WL 3431761 at 3. As a result, in 2009, shortly after the new regulations took effect, a group of plaintiffs filed suit in the Eastern District of Pennsylvania, challenging several substantive aspects of the 2008 DOL rule. Id. at 1. The CATA I Court upheld various aspects of the challenged rule. See Id. at 12-14. But, it vacated other aspects of the 2008 DOL Rule and remanded the rule to DOL “so that the agency may correct its errors.” See Id. at 24. In particular, CATA I held invalid elements of the 2008 DOL Rule that pertained to the calculation of a prevailing wage. See id; 73 Fed. Reg. at 78056.

         Following CATA I, DOL promulgated a notice of proposed rulemaking (“NPRM”) with respect to wage rate calculations. Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 75 Fed. Reg. 61578-01, 61579 (October 5, 2010) (“2010 Wage NPRM”). After allowing for notice and comment, DOL announced a revised prevailing wage regulation in 2011. Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, 76 Fed. Reg. 3452 (Jan. 19, 2011) (“2011 Wage Rule”). Although DOL initially set January 1, 2012, as the effective enforcement date for the 2011 Wage Rule, as of March 2013, DOL was still using the 2008 Wage Rule declared invalid in CATA I. See CATA II , 933 F.Supp.2d at 708-09. The CATA plaintiffs successfully challenged DOL's continued use of the partially invalid 2008 DOL Rule, and in CATA II the Eastern District of Pennsylvania vacated the 2008 Wage Rule and barred its continued use. See Id. at 709, 716.

         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, 76 Fed. Reg. 15130-01 (Mar. 18, 2011) (2011 Program Rules). DOL issued a final version of this rule in 2012. Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 77 Fed. Reg. 10038, 10038-10146 (Feb. 21, 2012) (2012 Program Rules).

         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, No. 3:12CV183/MCR/CJK, 2012 WL 12887385, at *1 (N.D. Fla. Apr. 26, 2012). The Eleventh Circuit affirmed the preliminary injunction, on the ground that DOL lacked the authority to issue rules pertaining to the H-2B program, and remanded the case to the district court. Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013). Thereafter, on the merits, the district court held that DOL lacked the “authority to engage in legislative rulemaking under the H-2B program, ” and so it vacated the 2012 Program Rules. Bayou Lawn & Landscape Servs. v. Perez, 81 F.Supp.3d 1291, 1300 (N.D. Fla. 2014) (“Bayou II”).

         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, 621 Fed.Appx. 620 (11th Cir. 2015).

         In 2012, around the same time as the first Bayou 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. See Louisiana Forestry Ass'n, Inc. v. Solis, 889 F.Supp.2d 711 (E.D. Pa. 2012). In that case, however, the Eastern District of Pennsylvania ruled that DOL did have the authority to promulgate the 2011 Wage Rule. Louisiana Forestry Ass'n, Inc. v. Solis, 889 F.Supp.2d 711 (E.D. Pa. 2012). The Third Circuit subsequently affirmed, in an apparent rejection of the Eleventh Circuit's holding in Bayou. Louisiana Forestry Ass 'n Inc. v. Sec'y U.S. Dep't of Labor, 745 F.3d 653, 669 (3d Cir. 2014) (affirming Louisiana Forestry, 889 F.Supp.2d 711).[9]

         In response to CATA II 's vacatur of the 2008 Wage Rule and Bayou's holding that DOL lacked rulemaking authority for the H-2B program, DHS and DOL jointly promulgated an interim final rule (“IFR”) in 2013, to address wage determinations. Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2, 78 Fed. Reg. 24047 (Apr. 24, 2013) (“2013 DHS/DOL Wage IFR”). But, DOL had not entirely abandoned the system used under the 2008 Wage Rule. See CATA v. Perez, 774 F.3d 173, 182 (3d Cir. 2014) (“CATA III). Although the 2013 DHS/DOL Wage IFR formally eliminated the use of skill levels, it did not alter the practice of “allowing a prevailing wage to be set by use of either” a Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) or a “private wage survey.” CATA III, 774 F.3d at 181 & n.7; see 2013 DHS/DOL Wage IFR, 78 Fed. Reg. at 24061.

         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, 79 Fed. Reg. 14450 (Mar. 14, 2014). That rule indicated DOL's intent to conduct future rulemaking on the issue of the prevailing wage calculations but painted “an uncertain picture” of DOL's future plans in this respect. See CATA III, 774 F.3d at 182. The district court ruled in DOL's favor “on the ground that the proposed 2014 or 2015 rule-making process could result in a prospective change of the rules at issue such that plaintiffs' challenge was not ripe for adjudication.” Id. at 182; see Comite de Apoyo a los Trabajadores Agricolas v. Perez, No. CIV.A. 14-2657, 2014 WL 4100708 (E.D. Pa. July 23, 2014), rev'd and remanded, CATA III, 774 F.3d 173.

         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, 774 F.3d at 181-82. In July 2014, the district court dismissed the case, without prejudice, on procedural grounds. Id. at 182. The Third Circuit reversed and remanded. Id. at 191-92.

         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, 2015 U.S. Dist. LEXIS 27606 (N.D. Fla. Mar. 4, 2015). “Based on the Perez vacatur order and the permanent injunction, DOL ceased operating the H-2B program to comply immediately with the court's order.” 80 Fed. Reg. 24151. The combination of CATA III and Perez “left DOL without a complete methodology or any procedures to set prevailing wages in the H-2B program.” 80 Fed. Reg. at 24152.[10]

         Because of the problems the Perez order caused, the Perez Court temporarily stayed its order until May 2015. In April 2015, to prevent “another program hiatus if and when the temporary stay expire[d], ” DOL and DHS jointly issued the 2015 Wage Rule. See Id. at 24152. According to the agencies, the 2015 Wage Rule “implements a key component of DHS's determination that it must consult with DOL on the labor market questions relevant to its adjudication of H-2B petitions.” Id. at 24148. The 2015 Wage Rule finalized the 2013 DHS/DOL Wage IFR See 2015 Wage Rule, 80 Fed. Reg. at 24151.

         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 24, 152-53; see also 5 U.S.C. § 553(d)(3). Although the agencies did not solicit additional comments before promulgating the 2015 Wage Rule, because that rule is similar to the 2013 DHS/DOL Wage IFR, the agencies concluded that the public had already had an adequate “opportunity to comment on all aspects of this final rule in response to the 2013 IFR.” 2015 Wage Rule, 80 Fed. Reg. at 24151.

         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, 80 Fed. Reg. 24042-01, 24043 (Apr. 29, 2015) (2015 Program Rules). However, the departments elected to reissue the rule jointly, in light of the various challenges to “DOL's authority to issue its own legislative rules to carry out its duties under the INA.” Id. at 24, 045 (citing Bayou, 713 F.3d 1080).

         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,148 F.Supp.3d 361 (D.N.J. 2015) CCATA IV). The district court ruled for the Government, finding that the plaintiffs lacked standing. Id. at 374. And, in Bayou III, plaintiffs challenged the validity of each of the 2015 Rules. Bayou Lawn & Landscape Servs. v. Johnson, 173 F.Supp.3d 1271, 1276 (N.D. Fla. 2016) (“Bayou III”). ...


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