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Media Alerts - Louisiana Forestry Association v. Secretary of the U.S. Department of Labor - Third Circuit
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February 14, 2014
  Louisiana Forestry Association v. Secretary of the U.S. Department of Labor - Third Circuit
Area of Law: Administrative Law

Issue(s) Presented: Whether the Department of Labor has the authority to promulgate a rule under the H-2B visa program, which was administered by the Department of Homeland Security?

Brief Summary: In September 2011, the Department of Labor ("DOL") promulgated a rule mandating minimum wages for foreign workers working in the U.S. under the H-2B program. The H-2B program allows non-agricultural employers to employ foreign workers in unskilled jobs that U.S. citizens would not take. Appellants challenged this rule on two grounds: 1) that the DOL did not have the authority to promulgate this rule, and 2) even if it did have the authority, the DOL did not follow the procedures of the APA. The District Court granted summary judgment, and the Third Circuit affirmed. The Third Circuit found that the DOL had implied authority to promulgate the rule, and that it did comply with the APA formal rulemaking requirements.

Significance (if any): The Department of Labor has implied authority to promulgate minimum wage rules under the H-2B program.

Extended Summary (if applicable):
On September 7, 2011 Appellants (a group of associations representing non-agricultural employers) initiated this action claiming that the Department of Labor (DOL) exceeded its authority by enacting a 2011 regulation that governs the minimum wage a U.S. employer must offer to foreign workers under the H-2B visa program. The District Court granted summary judgment in favor of the DOL and its Co-Defendants, and the Third Circuit affirms.
The H-2B visa program permits U.S. employers to recruit temporary foreign workers to fill unskilled non-agricultural positions that no U.S. worker will accept. The authority to administer the H-2B system is in the Department of Homeland Security ("DHS"). However, the DHS can look to the DOL for advice in determining whether to grant an H-2B regulation or not. The DOL also has the authority to create the procedures necessary to fulfill its charge of issuing labor certifications. The DOL relied on the INA and DHS regulations as authority for the rulemaking. It went through notice and comment as proscribed by the APA.
Appellants challenged the rule on two grounds: 1) the DOL lacks authority to promulgate rules concerning the H-2B program, and 2) even if the DOL has such rulemaking authority, the DOL's rule did not comply with the APA rulemaking requirements. The District Court concluded that the DOL had implied authority for this rulemaking, and the DOL had not exceeded the scope of that authority in issuing the 2011 rule. First, the Third Circuit found that the DOL was correct that it had authority to promulgate this 2011 rule. This authority was derived from regulations promulgated by DHS, and DHS was entitled to Chevron deference in giving this authority to the DOL. Since the Third Circuit determined that the DOL had the rulemaking authority, the Court next went on to decide whether the rulemaking complied with the APA. The 2011 rule was promulgated under the informal rulemaking procedures of the APA, with which the DOL complied. The Court also found that the DOL considered factors relevant to the rule in question, and whether the rule would adversely affect the wages and working conditions of similarly employed U.S. workers. Thus, the DOL provided reasoned analysis supported by evidence, as required by the APA. The District Court's decision was therefore affirmed. the full opinion can be viewed at

Panel (if known): Jordan and Vanaskie, Circuit Judges, Rakoff, District Judge

Argument (if known): May 31, 2013

Date of Issued Opinion: February 5, 2014

Docket Number: 12-4030

Decided: February 5, 2014

Case Alert Author: Alexandra Perry

Counsel (if known): R. Wayne Pierce, Esq.; Veronica W. Saltz, Esq.; Leon R. Sequeira, Esq. for Appellants; Geoffrey Forney, Esq.; Harry L. Sheinfeld, Esq. for Appellees; Arthur N. Read, Esq.; Meredith B. Stewart, Esq.; Sarah M. Claassen, Esq.; Elizabeth D. Mauldin, Esq.; Edward J. Tuddenham, Esq. for Intervenors

Author of Opinion: Vanaskie, Circuit Judge

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 02/14/2014 01:50 PM     3rd Circuit  

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