FL Court Hears H-2B “Program Rule” Appeal

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On December 12, the 11th Circuit Court of Appeals, in Jacksonville, Florida heard the U.S. Department of Labor’s appeal of District Court Judge Casey Rodgers’s decision to place a preliminary injunction on DOL’s “Program Rule,” governing the H-2B visa program, which authorizes the entry of reforestation guestworkers to the U.S. on a temporary, seasonal basis. The key legal question, to which Judge Rodgers had answered “no,” is whether the Department of Homeland Security had the authority to delegate the necessary rulemaking to DOL, in view of the authorizing statute.

DOL’s central argument is that DHS is “incompetent” to undertake such a rulemaking and for that reason delegated the rulemaking to DOL. The contractors’ attorneys, however, pointed out that the program’s statutory authority said otherwise, and that, while DHS was free to “consult” with DOL, to pass off the entire rulemaking process to DOL was out of bounds and inconsistent with administrative precedent.

Observers at the hearing stated that the panel of three judges seemed well-prepared, asked relevant and penetrating questions of both attorneys, and in general seemed to understand the contractors’ position.

We have heard various estimates of when to expect the panel to rule, ranging between two and five months in the future. FRA remains actively engaged in the coalition supporting litigation. Background at this link.