Department of Labor Violated Administrative Procedure Act by Issuing Legislative Rules Negatively Impacting Employment of U.S. Herders Without Public Notice and Opportunity for Comment.

The plaintiffs were United States workers experienced in herding cattle, goats, and sheep. They claimed that they had been forced out the industry because of substandard wages and conditions they attributed to the easy availability of foreign workers. They filed an action against the United States Department of Labor alleging that the Department had administered the temporary work visa program pursuant to the Immigration and Nationality Act (INA) in a way that gives herding operations access to inexpensive foreign labor without protecting American workers. Specifically, the workers contended that the Department violated the Administrative Procedure Act by issuing special procedures pursuant to Training and Employment Guidance Letters (TEGLs), without notice and comment. The district court dismissed the action, finding that the workers lacked Article III standing. On appeal, the federal court of appeals reversed, holding that the TEGLs affected the concrete interests of the workers and that they were asserting a procedural violation. The court assumed  a causal link between the alleged procedural violation and the substantive outcome of the agency action. The court also ruled that the workers fell within the zone of interests of the INA and had a legislatively conferred cause of action to raise their claim regarding the Department’s administration of the program as it regarded herders. The court then proceeded to the merits of the claim, despite the fact that it was not ruled upon by the district court. The court found that because the TEGLs were legislative rules, the Department violated  the APA by promulgating them without providing public notice and an opportunity for comment.  Mendoza v. Perez, No. 13-5118, 2014 U.S. App. LEXIS 11005 (D.C. Cir. Jun. 13, 2014).