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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

Today the United States Court of Appeals for the Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Florida enjoining the Department of Labor (DOL) from enforcing its non-immigrant non-agricultural unskilled labor visa program (H-2B) in Bayou Lawn and Landscape Services v. Solis.  The court found that the district court did not abuse its discretion in entering the preliminary injunction and affirmed de novo the district court’s interpretation of the law.  This case is mostly over – the preliminary injunction remains in effect through determination of the case, but the district court and the court of appeals have already determined the ultimate issue of the legality of DOL’s regulations.

This blog has written much about the regulatory problems from Bayou Lawn & Landscaping’s preliminary injunction, to most recently the wage methodology battle of rules under the Administrative Procedure Act (APA) before the courts, and funding before the Congress.  Here the issue is much broader:  does DOL have authority to regulate H-2B at all – and the 11th Circuit found that it did not have such authority in the procedural posture of an appeal from entry of a preliminary injunction.

DOL did not dispute that it has no express authority to make rules for the H-2B program.  DOL counters that its authority may be inferred from the “statutory scheme [that] shows a Congressional intention to grant [it] rulemaking power.”  The court rejected DOL’s argument in DOL’s own preamble discussions:

In its proposed and final rules, DOL cited two statutory provisions as the source of its rulemaking authority.  First, DOL cited 8 U.S.C. § 1184(c)(1), which instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.”  Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.”  The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

The court rejected such a broad interpretation of “consultation” – calling it “absurd” because “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.’”  The court found that DOL could not “bootstrap that supporting role into a co-equal one.”

Second, DOL argued that the section of the Immigration and Nationality Act from which the program draws its name – 8 U.S.C. § § 1101(a)(15)(H)(ii)(b) – grants indirect authority.  The court, however, distinguished this provision from the immediately preceding statutory section – (H)(2)(A) – which does, expressly grant DOL rulemaking authority over the agricultural worker H-2A program.  “The absence of a delegation of rulemaking authority to DOL over the non-agricultural H-2B program in the presence of a specific delegation to it of rulemaking authority over the agricultural worker H-2A program persuades us that Congress knew what it was doing when it crafted these sections.”

Nor did the court accept DOL’s argument that the “text, structure and object” of the INA evidence a congressional intent that DOL exercise rulemaking authority over the H-2B program.  This “silence” argument rarely fares well and is substantially less than a “ratification” argument.  Agency authority flows from express delegations from Congress.

Perhaps DOL will not be issuing new wage methodology rules.