## Facts

- The H-2A program permits employers to hire temporary foreign agricultural workers only if the Department of Labor (DOL) certifies insufficient qualified U.S. workers and no adverse effect on U.S. workers’ wages and working conditions.
- In August 2011, DOL issued two Training and Employment Guidance Letters (TEGLs) establishing “special procedures” for sheepherders, goatherders, and open-range cattle herders.
- The TEGLs created a separate certification track for herder positions and set minimum wages and housing/working conditions that were generally more lenient than baseline H-2A regulations.
- The TEGLs were issued without notice-and-comment rulemaking.
- Experienced U.S. herders alleged the special procedures depressed wages and working conditions and made it easier for employers to hire foreign herders, reducing domestic job opportunities.
- Plaintiffs asserted they would prefer to work as herders and would return to the occupation if wages and conditions were improved.

## Issues

1. Whether the plaintiffs had Article III standing (including competitor standing and procedural-injury standing) to challenge the TEGLs.
2. Whether the plaintiffs’ interests fell within the zone of interests of the INA provisions governing H-2A certification.
3. Whether the 2011 TEGLs were legislative rules requiring notice-and-comment under the APA, rather than exempt interpretive or procedural rules or policy statements.
4. What relief was appropriate if the TEGLs were unlawfully issued.

## Decision

- The D.C. Circuit reversed the district court’s dismissal and remanded.
- The court held plaintiffs had Article III standing because the TEGLs allegedly increased competition from foreign herders and depressed wages and opportunities for U.S. herders, and plaintiffs plausibly alleged they would seek herding work under improved conditions.
- The court held plaintiffs were within the zone of interests because the INA directs DOL to prevent adverse wage and working-condition effects on similarly employed U.S. workers.
- The court held the TEGLs were legislative rules because they substantively altered wage and housing/working-condition standards governing herder certifications and were treated as controlling.
- The court concluded DOL violated the APA by issuing the TEGLs without notice and comment.
- The court left implementation of a remedy to proceedings on remand; subsequent remedial management contemplated vacatur tied to a properly promulgated rule.

## Legal Principles

- Competitor standing exists when agency action relaxes constraints on competitors or otherwise increases competition in a way that plausibly causes economic injury (e.g., reduced opportunities or depressed wages).
- Procedural-rights standing can be based on denial of participation required by statute (such as notice-and-comment), with a less demanding causation showing than for substantive injuries.
- The INA’s H-2A certification provisions protect U.S. workers from adverse wage and working-condition effects; U.S. workers alleging such harm can fall within the zone of interests for APA review.
- An agency pronouncement is a legislative rule requiring notice-and-comment when it creates or changes binding substantive standards affecting regulated parties’ rights or obligations; labeling a document “guidance” does not control.

## Conclusion

The D.C. Circuit held that U.S. herders had standing to challenge DOL’s 2011 herder TEGLs and that the TEGLs were legislative rules issued in violation of the APA’s notice-and-comment requirements, requiring further proceedings to address appropriate relief.


Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014)