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Media Alerts - Mendoza v. Perez -- D.C. Circuit
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June 13, 2014
  Mendoza v. Perez -- D.C. Circuit
Headline: D.C. Circuit permits Americans herders to challenge Labor guidance allowing the hiring of foreign herders.

Area of Law: Administrative Law, Standing

Issue(s) Presented: Whether American herders have standing to challenge an employment guidance issued by the Department of Labor relaxing the requirements for hiring foreign herders, and whether the guidance, promulgated without notice and comment, violated the Administrative Procedure Act (APA).

Brief Summary:
The Immigration and Nationality Act creates a temporary visa program, the H-2A Visa Program, to facilitate hiring foreign workers when there are not enough qualified and available Americans to fill open jobs. In 2011, the Department of Labor, tasked with administering the program, updated the special procedures establishing minimum wages and working conditions that have to be offered to U.S. herders before employing foreign workers. The Department published two Training and Employment Guidance Letters (TEGLs) without notice and comment procedures. In October 2011, U.S. herders brought an action against the Department, claiming that the conditions established by the TEGLs forced them out of the industry by lowering wages and degrading working conditions. Plaintiffs, U.S. workers with years of experience as herders, alleged that the Department of Labor violated the APA by issuing the special procedures without notice and comment. Two groups representing employers in the herding industries intervened on the side of the government and filed a motion to dismiss for lack of jurisdiction. The District Court granted the motion to dismiss, finding that plaintiffs lacked Article III standing because they had not suffered a cognizable injury traceable to the disputed regulations and, alternatively, because they were not in the zone of interests protected by the Immigration and Nationality Act and thus lacked prudential standing. The plaintiffs appealed.

The United States Court of Appeals for the District of Columbia Circuit reversed. The court emphasized that the requirements for Article III standing to enforce procedural rights are different from those for enforcing substantive rights; while the plaintiffs must establish the agency action threatens their concrete interest in a personal way, once they have done so, standards are less stringent for demonstrating immediacy and redressability. Specifically, the court found that plaintiffs need not demonstrate that but for the procedural violation, the effect on their personal interests would have been different. Provided plaintiffs can link the agency action and the alleged injury, the court will assume the agency action would have been different had it been consummated in a procedurally valid manner.

Applying the competitor standing doctrine, the court determined that parties suffer an injury in fact when agencies lift restrictions on their competitors or otherwise allow increased competition. Since the special procedures contained in the TEGLs had the effect of loosening the general H-2A requirements, thus increasing the supply of labor and competition, their promulgation caused injury to the plaintiffs. Finally, the court determined that plaintiffs, American workers, had prudential standing because they fell squarely within the zone of interests protected by the Immigration and Nationality Act.

After finding that plaintiffs had standing, the court opted to rule on the merits given that parties had adequately briefed and argued the question. The court concluded that TEGLs are legislative rules and that promulgating them without following the notice and comment procedure was a violation of the Administrative Procedure Act. As such, the court found plaintiffs were entitled to an entry of summary judgment in their favor and remanded for proceedings consistent with its opinion.

For the full opinion, please see

Panel: Tatel, Brown, and Millett

Argument Date: February 25, 2014

Date of Issued Opinion: June 13, 2014

Docket Number: 13-5118

Decided: Reversed

Case Alert Author: Albertine Guez

Counsel: Julie A. Murray, Michael T. Kirkpatrick, and Edward J. Tuddenham for Appellants. Craig A. Defoe, Stuart F. Delery, and David J. Kline for Appellee.

Author of Opinion: Brown

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/13/2014 04:10 PM     DC Circuit  

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