A new decision in Louisiana Forestry Assn. v. Solis upheld the Department of Labor (DOL) Wage Methodology for the Temporary Non-agricultural Employment H-2B Program, adding another piece to a confusing jigsaw puzzle over the efficacy of the H-2B regulations. District Court decisions upholding regulations normally do not garner major attention by this blog because there is less to learn from them than from vacature and injunctions, but this decision runs contrary to an injunction by a different district court and raises questions at the core of administrative law: statutory delegation of rulemaking authority.
Issue: The issue here is whether Congress delegated regulatory authority to DOL to promulgate labor certification regulations as part of the process of admitting certain types of foreign workers to the United States. The H-2B visa program permits an employer to hire a temporary unskilled foreign worker if United States workers are not available in that occupation at the prevailing wage rate. Availability of United States workers depends partly on the offered wage. The determination of that “prevailing wage” for an occupation, therefore, determines critical issues of whether foreign workers may be admitted to the United States. The issue in these cases is what agency may make that decision.
Background: In a prior version of the Pennsylvania case, labor organizations representing foreign and United States workers impacted by the H-2B program challenged a 2008 rule. The district court held that DOL had violated the Administrative Procedure Act (APA) by inserting a skill-level methodology into the H-2B program from the H-2A (agricultural workers) program without explanation and that a four-tier wage structure set out in the 2005 letter was itself a legislative rule that was not promulgated under the APA and was invalid. The district court, however, did not vacate the rule because vacature could leave a regulatory gap, but did impose a deadline (long passed) for what became the 2011 rule.
The Louisiana Forestry Association sued under the APA and the Regulatory Flexibility Act (RFA) in the United States District Court for the Western District of Louisiana, but the court transferred that case to the Eastern District of Pennsylvania in light of the 2008 suit.
Side trip to Northern Florida: As noted previously in this blog, The United States District Court for the Northern District of Florida has preliminarily enjoined DOL from enforcing its 2012 Temporary Non-Agricultural Employment of H–2B Aliens in the United States final rule for want of statutory authority to promulgate regulations in Bayou Lawn & Landscape Services v. Solis. The 2012 rule made other changes in the H-2B program. DOL has appealed Bayou Lawn & Landscaping to the United States Court of Appeals for the Eleventh Circuit.
Appropriations Bar: Add to this conflict Congress’s existing bar to DOL using appropriated funds to implement the 2011 H-2B rule, a point that the court acknowledges, with the trepidation that counsel admitted that there is no Congressional action within sight. If past is prologue, the funding rider will continue in any new appropriation or continuing resolution absent an affirmative decision to remove it.
Eastern Pennsylvania upholds 2011 Rule: The employer associations contended that the DOL lacked authority to make any legislative rules for an H-2B visa program, including the 2011 wage rule, and that the 2011 wage rule was issued in violation of the Administrative Procedure Act (APA) and the Regulatory Flexibility Act (RFA). The District Court acknowledged that DOL has postponed implementation of the 2011 wage rule three times in response to the Louisiana Forestry suit, Bayou Lawn & Landscape, and appropriations legislation barring the expenditure of funds to implement the 2011 rule.
The court found sufficient authority for the 2011 rule based on “historical involvement” that leaves many questions unanswered. The court notes that the state requires the Attorney General (now, maybe the Secretary of Homeland Security and Department of Homeland Security (DHS)), to consult with DOL on labor availability and wages. DHS regulations inherited from the Attorney General and the Department of Justice (DOJ) provide that petitions for a foreign worker will be approved under the H-2B program must apply for a “labor certification” from DOL and that “labor certification” constitutes DOL’s “advice” to DHS under the statute. The court found that the regulation was a reasonable construction of the statute’s silence on what constitutes “consultation.”
Consultation, however, is not delegated authority to promulgate legislative rules on private parties. The court pointed out that the Government had acknowledged that no direct statutory authorization exists for DOL to promulgate H-2B rules. The court found authority was apparent from the DOL’s general conferred authority and other statutory circumstances: “the history of the H-2B program demonstrates Congress’s expectation that the DOL would engage in legislative rulemaking.” Invoking history, legislative history, and deference to an agency’s interpretation of its jurisdiction, the court filled the legislative gap with the maxim that “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.”
APA and RFA: The court found plaintiffs’ APA and RFA claims wanting and there is little to learn from that exposition. Suffice it to say that the court found an adequate and rational “explanation” of the rule and procedural adequacy of DOL’s impact analyses. The court’s decision may not satisfy plaintiffs and does appear to have problems that may surface on appeal.
Conflict among Districts, and perhaps Circuits: The Louisiana Forestry analysis is not convincing and conflicts with the Bayou Lawn and Landscaping analysis, the latter already on appeal to the United States Court of Appeals for the Eleventh Circuit. An appeal from Louisiana Forestry to the United States Court of Appeals for the Third Circuit is likely, setting the stage for a potential intercircuit conflict. Any Supreme Court resolution of this agency jurisdiction issue is at least a year away.
In too many instances, this type of issue reflects a reality that Congress does not enact precise legislative drafting, or renew consideration of program delegations, and the lack of Executive reorganization authority ferments such conflicts. Congress has, as noted previously, also enacted piecemeal bars to certain regulations in appropriations, but has not provided a more dispositive answer.
If one agency can interpret a statute to “grant” another agency regulatory authority, then many other principles of statutory authority must come into play. Congress has appropriated funds for DOL’s H-2B certification process, but that does not appear to constitute “ratification” and the court has not addressed the issue. The parties, moreover, do not appear to have broached the complex issue of whether Congressional ambiguity permits cross-agency Executive resolution under the President’s authority within Article II of the Constitution.
If past is prologue, these issues will continue to percolate through both politics and litigation for some time, without resolution, adversely affecting all parties.