United States District Court, D. Maryland
OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC., et al., Plaintiffs,
DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
Lipton Hollander, United States District Judge
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
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.”
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.
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.
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.” 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.
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.
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.
the submission of the voluminous Administrative Record
(see ECF 46, ECF 87, ECF 129),  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. 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”). Defendants also replied. ECF 113
(“Defendants' Reply”). And, amici
submitted a memorandum of law in opposition to
Plaintiffs' Motion. ECF 105 (“Amici
Court held oral argument on August 14, 2018. ECF
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.
reasons that follow, I shall grant Defendants' Motion and
deny Plaintiffs' Motion.
Factual and Procedural Summary
H-2B Visa Program
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. §
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. §
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).
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.
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
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.
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
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.
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. §
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). 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 ....”
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
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.
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).
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.
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,
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).
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”).
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).
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
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.
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.
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.
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
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
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.
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).
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.
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