Reymundo Mendoza v. Thomas Perez

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2014 Decided June 13, 2014

No. 13-5118

REYMUNDO ZACARIAS MENDOZA, ET AL.,

APPELLANTS

ALFREDO CONOVILCA MATAMOROS,

APPELLEE

v.

THOMAS E. PEREZ, IN HIS OFFICIAL CAPACITY AS SECRETARY

OF THE UNITED STATES DEPARTMENT OF LABOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01790)

Julie A. Murray argued the cause for appellants. With

her on the briefs were Michael T. Kirkpatrick and Edward J.

Tuddenham.

Michelle R. LaPointe was on the brief for amici curiae

The Southern Poverty Law Center, et al. in support of

appellants.

Craig A. Defoe, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

2

were Stuart F. Delery, Assistant Attorney General, and David

J. Kline, Director. Geoffrey Forney, Senior Litigation

Counsel, entered an appearance.

Edwin B. Swan, pro hac vice, argued the cause for

intervenors. On the brief was Carl W. Hampe.

Before: TATEL, BROWN, and MILLETT, Circuit Judges.

Opinion for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge: The Immigration and Nationality

Act creates a temporary foreign worker visa program that

allows employers to hire foreign workers when there are not

enough qualified and available American workers to fill open

jobs. The Department of Labor is tasked with administering

the visa program to protect the wages and working conditions

of U.S. workers. In August 2011, the Department updated the

special procedures that establish the minimum wages and

working conditions employers must offer U.S. sheepherders,

goatherders, and open-range (cattle) herders before hiring

foreign herders.

The plaintiffs in this action are U.S. workers experienced

in herding. Although the plaintiffs would prefer to work as

herders, they have been forced out of the industry by the

substandard wages and working conditions they attribute to

the easy availability of foreign herders. The plaintiffs paint a

portrait of agency capture, suggesting the Department has,

without giving herders or their representatives an opportunity

to be heard, administered the temporary worker visa program

in a way that gives herding operations access to inexpensive

foreign labor without protecting U.S. workers.

3

The plaintiffs, all of whom had left their herding jobs

sometime prior to August 2011, filed this action alleging the

Department of Labor violated the Administrative Procedure

Act by issuing the special procedures without notice and

comment. The Mountain Plains Agricultural Services and the

Western Range Association—two groups representing

employers in the herding industry—intervened on the side of

the government. The intervenors filed a motion to dismiss for

lack of jurisdiction and all the parties filed cross-motions for

summary judgment in the district court. The district court

granted the motion to dismiss, holding the plaintiffs lacked

Article III and prudential standing. We reverse the judgment

of the district court.

I

The H-2A visa program—created by the Immigration and

Nationality Act of 1952 (INA) and amended by the

Immigration Reform and Control Act of 1986—permits

employers to hire foreign workers to perform temporary

agricultural work in the United States. An employer seeking

to hire H-2A foreign workers must first seek certification

from the Department of Labor that (1) there are not sufficient

qualified and willing U.S. workers to fill open positions and

(2) hiring foreign workers will not adversely affect the wages

and working conditions of similarly employed U.S. workers.

8 U.S.C. § 1188(a)(1). Only after obtaining the Department

of Labor certification may the employer petition United States

Citizenship and Immigration Services to classify a specific

foreign worker as an H-2A temporary worker.

The Department of Labor has adopted regulations by

notice-and-comment rulemaking that govern the H-2A

certification process. The regulations were most recently

amended, again through notice-and-comment procedures, in

4

2010. Through those regulations, the Department sets

minimum terms and conditions employers must offer workers

to determine the availability of American workers to fill

employers’ jobs. See 20 C.F.R. §§ 655.120–655.122. The

regulations also establish procedures for employers seeking

H-2A certification to advertise open positions. See 20 C.F.R.

§§ 655.150–655.158. Qualified U.S. workers responding to

these job offers must be given priority over foreign workers.

See 20 C.F.R. § 655.135(d). Even after an employer’s H-2A

application is approved and the employer hires foreign

laborers, the employer must continue to provide its American

and foreign workers the minimum wages and working

conditions laid out in the regulations to ensure the

employment of foreign workers does not adversely affect the

terms of employment of similarly employed American

workers. 20 C.F.R. § 655.122(a).

Employers seeking H-2A certification are required to pay

the higher of the Adverse Effect Wage Rate (AEWR), the

prevailing wage, or the legal minimum wage. 20 C.F.R.

§ 655.120(a). The AEWR is a specially calculated wage

based on the Department of Agriculture’s Farm Labor Survey,

which approximates what the prevailing wage would be if not

for the hiring of foreign workers. See Temporary Agricultural

Employment of H-2A Aliens in the United States, 75 Fed.

Reg. 6884, 6891–93 (Feb. 12, 2010). Any employer-provided

housing must meet standards set by the Occupational Safety

and Health Administration. 20 C.F.R. § 655.122(d).

Although the same requirements generally apply to

employers seeking H-2A certification for workers in any

agricultural occupation, the H-2A regulations allow the

Administrator of the Office of Foreign Labor Certification to

create special procedures for processing certain H-2A

applications. 20 C.F.R. §§ 655.102, 655.120(a). This

5

“special procedures” exception predated, and was continued

in, the 2010 version of the H-2A regulations.

In 2011, the Department of Labor issued two Training

and Employment Guidance Letters (TEGLs) providing special

procedures for certain H-2A certifications. It published the

TEGLs in the Federal Register without having gone through

Administrative Procedure Act (APA) notice and comment

procedures. See 5 U.S.C. § 553. TEGL No. 15-06 establishes

special procedures for the certification process for

cattleherders. TEGL No. 15-06, Change 1, Special

Procedures: Labor Certification Process for Occupations

Involved in the Open Range Production of Livestock Under

the H-2A Program, 76 Fed. Reg. 47,243 (Aug. 4, 2011).

TEGL No. 32-10 outlines special procedures for employers

engaged in sheepherding and goatherding operations. TEGL

No. 32-10, Special Procedures: Labor Certification Process

for Employers Engaged in Sheepherding and Goatherding

Occupations Under the H-2A Program, 76 Fed. Reg. 47,256

(Aug. 4, 2011). The 2011 TEGLs update special

procedures—also issued without notice and comment—that

had long been in place for employers seeking H-2A

certification in these occupations. 1 The TEGLs reflect the

Department of Labor’s belief that the unique occupational

characteristics of herding—including spending extended

periods in isolated areas and being on call twenty-four hours a

day, seven days a week to protect livestock—make special H-

2A procedures necessary. See TEGL No. 32-10, 76 Fed. Reg.

at 47,256.

1

Although the 2011 TEGLs continued many of the policies in

effect under the prior special procedures, they also made a number

of changes to those procedures, which we discuss in Part III below.

6

Compared to the general H-2A regulations applicable to

most agricultural employers, the TEGLs establish

significantly different procedures for herder employers

seeking H-2A certification. Among other differences, the

TEGLs impose different minimum wage requirements and

provide lower standards for employer-provided housing.

Compare 20 C.F.R. § 655.120(a), with TEGL No. 15-06, 76

Fed. Reg. at 47,244–45, and TEGL No. 32-10, 76 Fed. Reg.

at 47,257–58; 20 C.F.R. § 655.122(d)(1)(i), and 29 C.F.R.

§ 1910.142, with TEGL No. 15-06, 76 Fed. Reg. at 47,246–

47.

The plaintiffs in this action have substantial herding

experience. 2 Each originally came to the United States as an

H-2A herder, but left his job due to poor or abusive working

conditions. The plaintiffs currently have a lawful

immigration status and are authorized to work in the United

States, thus qualifying as U.S. workers under the INA and H-

2A regulations. See 20 C.F.R. § 655.103(b). The plaintiffs

have all submitted affidavits declaring they are qualified and

available to work as herders. See J.A. 45–57. However, the

plaintiffs state they are deterred from accepting herding jobs

because of poor wages and working conditions, which they

attribute to the lax standards established by the TEGLs and

prior special procedures. They claim the Department of

Labor has, without protecting U.S. workers, allowed

employers easy access to a large supply of foreign herders.

None of the plaintiffs has worked as a herder since, at least,

May 2011. They aver they would prefer to work as herders,

but they have not heard of any herding jobs offering decent

wages and working conditions. See id.

2

Only three plaintiffs are party to this appeal. A fourth plaintiff,

Alfredo Matamoros, participated in the district court proceedings

but did not appeal.

7

The plaintiffs brought this action in October 2011. They

allege the TEGLs constituted “rule making” within the

meaning of the Administrative Procedure Act, 5 U.S.C. § 553,

the TEGLs were subject to notice and comment requirements,

and the Department of Labor violated the APA by issuing the

TEGLs without those procedures. They ask the court to set

aside the rules until they are adopted through notice-and-

comment rulemaking.

The Mountain Plains Agricultural Services and the

Western Range Association intervened in the action.

Together, the intervenors’ member herding operations are

responsible for approximately sixty percent of the lamb and

wool production in the United States. Their members employ

1,500 to 2,000 foreign sheepherders at any given time, and

additional foreign cattle herders. In their brief, the

intervenors state that virtually all of their members’ herder

employees are foreign workers admitted to the United States

under the H-2A program.

The intervenors filed a motion to dismiss for lack of

jurisdiction in the district court. All parties filed cross-

motions for summary judgment. The district court granted the

intervenors’ motion to dismiss. The court concluded the

plaintiffs lack Article III standing because they have not

established a personal injury traceable to the disputed

regulations. Alternatively, the district court held the plaintiffs

lack prudential standing because they are not within the zone

of interests protected by the Immigration and Nationality Act.

Having granted the motion to dismiss for lack of jurisdiction,

the court did not reach the cross-motions for summary

judgment. The plaintiffs appealed.

8

We begin our analysis by assuring ourselves of our own

jurisdiction.

II

We review de novo a district court’s order dismissing a

claim under Federal Rule of Civil Procedure 12(b)(1) for lack

of subject matter jurisdiction. Info. Handling Servs., Inc. v.

Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C.

Cir. 2003). In evaluating plaintiffs’ standing at the motion to

dismiss stage “we must assume that the plaintiff[s] state[] a

valid legal claim and must accept the factual allegations in the

complaint as true.” Holistic Candlers and Consumers Ass’n

v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012). To establish

jurisdiction, the court need only find one plaintiff who has

standing. Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C. Cir.

2009).

Article III of the Constitution limits the jurisdiction of

federal courts to “actual cases or controversies between

proper litigants.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d

658, 661 (D.C. Cir. 1996). To establish constitutional

standing, plaintiffs “must have suffered or be imminently

threatened with a concrete and particularized injury in fact

that is fairly traceable to the challenged action of the

defendant and likely to be redressed by a favorable judicial

decision.” Lexmark Int’l, Inc. v. Static Control Components,

Inc., 134 S. Ct. 1377, 1386 (2014); see also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The requirements for standing differ where, as here,

plaintiffs seek to enforce procedural (rather than substantive)

rights. When plaintiffs challenge an action taken without

required procedural safeguards, they must establish the

agency action threatens their concrete interest. Fla. Audubon

9

Soc’y, 94 F.3d at 664. It is not enough to assert “a mere

general interest in the alleged procedural violation common to

all members of the public.” Id. Once that threshold is

satisfied, the normal standards for immediacy and

redressability are relaxed. Lujan, 504 U.S. at 572 n.7.

Plaintiffs need not demonstrate that but for the procedural

violation the agency action would have been different. Ctr.

for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160

(D.C. Cir. 2005). Nor need they establish that correcting the

procedural violation would necessarily alter the final effect of

the agency’s action on the plaintiffs’ interest. Id. Rather, if

the plaintiffs can “demonstrate a causal relationship between

the final agency action and the alleged injuries,” the court will

“assume[] the causal relationship between the procedural

defect and the final agency action.” Id. 3

In challenging the Department of Labor’s 2011 TEGLs,

the plaintiffs assert procedural rights under the APA. To

establish standing, they must demonstrate the guidelines

contained in the TEGLs cause them some personal injury—

such as increased competition or lost opportunity.

The competitor standing doctrine recognizes “parties

suffer constitutional injury in fact when agencies lift

regulatory restrictions on their competitors or otherwise allow

increased competition.” La. Energy and Power Auth. v.

FERC, 141 F.3d 364, 367 (D.C. Cir. 1998); see also Sherley

3

In Lujan, the Supreme Court gave the example that “one living

adjacent to the site for proposed construction of a federally licensed

dam has standing to challenge the licensing agency’s failure to

prepare an environmental impact statement, even though he cannot

establish with any certainty that the statement will cause the license

to be withheld or altered, and even though the dam will not be

completed for many years.” Lujan, 504 U.S. at 572 n.7.

10

v. Sebelius, 610 F.3d 69, 72–73 (D.C. Cir. 2010). In an

analogous case involving foreign labor, the Ninth Circuit held

an American workers’ union had standing to challenge an

Immigration and Naturalization Service decision permitting

Canadian crane operators to work in the United States without

completing the usual foreign labor certification procedure.

Int’l Longshoremen’s & Warehousemen’s Union v. Meese,

891 F.2d 1374, 1376, 1379 (9th Cir. 1989). The court held

the union suffered injury in fact because the agency’s action

caused union members increased competition for jobs in their

industry. Id. at 1379. See also Int’l Union of Bricklayers &

Allied Craftsmen v. Meese, 761 F.2d 798, 802–03 (D.C. Cir.

1985) (“In this instance, the injury of which appellants

complain is not abstract. On the contrary, they allege . . . the

INS is allowing aliens into the country to perform work which

would otherwise likely go to union members. They charge

that those alien workers represent competition which

appellants would not face if the Government followed the

procedures required by law.”); Ass’n of Data Processing Serv.

Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970).

Thus, an individual in the labor market for open-range

herding jobs would have standing to challenge Department of

Labor rules that lead to an increased supply of labor—and

thus competition—in that market. But the intervenors argue

the 2011 TEGLs do not depress wages or worsen working

conditions for U.S. herders. Rather, they claim the TEGLs

fulfill the Department’s statutory responsibility to create H-

2A certification procedures that ensure foreign herders are

only admitted to the country if there are not sufficient U.S.

workers to perform the labor required, and establish standards

to prevent the admission of foreign herders from “adversely

affect[ing] the wages and working conditions of workers in

the United States similarly employed.” 8 U.S.C. § 1188(a)(1).

Essentially, the intervenors argue the TEGLs are substantively

11

correct insofar as they comply with the relevant provisions of

the INA. But, particularly in a procedural rights case,

whether the TEGLs would withstand a substantive challenge

is not the relevant question for the purpose of determining

whether they cause injury to the plaintiffs’ concrete interests.

Rather, an examination of the alternatives to the TEGLs

demonstrates the issuance of those rules injured American

herders.

Without the special procedures contained in the TEGLs,

open-range employers would be bound by the general H-2A

regulations. See, e.g., 20 C.F.R. § 655.120 (establishing the

wage rate employers seeking to hire foreign labor must offer,

“except where a special procedure is approved for an

occupation or specific class of agricultural employment”);

TEGL No. 15-06, 76 Fed. Reg. at 47,244 (describing TEGL

as outlining special procedures that preempt the regular H-2A

regulations contained in 20 C.F.R. part 655); id. (“The

Department is continuing a special variance to the offered

wage rate requirements contained at 20 CFR 655.120(a).”);

TEGL No. 32-10, 76 Fed. Reg. 47,256, 47,257 (Aug. 4, 2011)

(same). Under the general H-2A regulations, employers

wishing to hire foreign laborers would be required to pay

herders the Adverse Effect Wage Rate, which in 2011 ranged

from $8.97 per hour to $12.01 per hour, depending on the

state. 2011 Adverse Effect Wage Rates, 76 Fed. Reg. 11,286,

11,286 (Mar. 1, 2011). Under the special procedures set forth

in the TEGLs, however, employers need only pay herders the

prevailing wage rate, which in 2011 was $875 per month plus

room and board for cattleherders and from $750 to $1,422.52

per month plus room and board for sheepherders and

goatherders, depending on the state. See Agricultural Online

Wage Library, U.S. DEP’T LABOR, EMP. & TRAINING ADMIN.,

http://www.foreignlaborcert.doleta.gov/aowl.cfm (last visited

June 3, 2014). A sheepherder in Colorado paid the prevailing

12

wage and working a 40-hour week would make less than

$4.69 per hour plus room and board—well below the $10.48

AEWR in Colorado. 4 The TEGLs also permit lower

standards for herder housing than the general H-2A

regulations authorize for employer-provided housing to other

agricultural workers. Compare, e.g., 20 C.F.R. § 655.122(d)

(housing provided by H-2A employers generally must meet

OSHA standards set forth at 29 C.F.R. § 1910.142), and 29

C.F.R. § 1910.142(b) (sleeping rooms must have at least 50

square feet of floor space per occupant and seven-foot

ceilings; living quarters must include windows “the total of

which may not be less than one-tenth of the floor area”; wood

floors must be elevated at least one foot above ground level to

prevent dampness), with TEGL No. 15-06, 76 Fed. Reg. at

47,246–47 (lacking similar requirements for housing provided

to open-range herders), and TEGL No. 32-10, 76 Fed. Reg. at

47,261–62 (same regarding sheepherders and goatherders).

4

Of course, sheepherders are actually on call twenty-four hours per

day, seven days per week. TEGL No. 32-10, 76 Fed. Reg. at

47,259. Even after accounting for room and board, herders making

the prevailing wage earn far less than other agricultural workers

being paid the AEWR. Although not all employers are required to

provide their agricultural workers room and board under the H-2A

program, employers are required to provide housing at no cost if the

workers are not reasonably able to return to their residence within

the same day—as would ordinarily be the case for herders who

often work far from their home and may need to be on call to tend

to livestock at all hours. 20 C.F.R. § 655.122 (d). The general H-

2A regulations require employers to provide their employees either

kitchen facilities to enable the workers to prepare their own meals,

or three meals a day. 20 C.F.R. § 655.122(g). If an employer

chooses to provide its workers with meals, it may charge its

workers $10.73 per day for the meals. 20 C.F.R. § 655.173(a); 76

Fed. Reg. 11,286, 11,287 (Mar. 1, 2011).

13

The 2011 TEGLs also differ in significant and adverse

ways from the prior special procedures governing herding

employers. See infra Part III. Thus, the TEGLs adversely

affect herders by lowering wages and worsening working

conditions, whether they are compared to the alternative of

eliminating special procedures for herders altogether or

retaining the pre-2011 special procedures. 5

It does not matter if defendants are correct in suggesting

the TEGLs comply with the INA’s requirement that use of

foreign labor not adversely affect American workers’ wages

and working conditions. We may ignore the merits of the

TEGLs’ guidance. Plaintiffs asserting a procedural rights

challenge need not show the agency action would have been

different had it been consummated in a procedurally valid

manner—the courts will assume this portion of the causal

link. Ctr. for Law & Educ., 396 F.3d at 1160. Rather,

plaintiffs simply need to show the agency action affects their

concrete interests in a personal way. In other words, the

intervenors’ argument that the agency action was lawful or

correct on the merits—and therefore that it did not injure the

plaintiffs—is substantially the same as arguing the omitted

procedure would not have affected the agency’s decision.

This is precisely the argument a defendant cannot make in a

procedural rights challenge. Cf. Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)

5

The intervenors point to a list of available jobs they claim pay

significantly higher wages than required under the standards

contained in the 2011 TEGLs. See J.A. 58–60. But even if there

are job opportunities for herders that pay above the minimum wage

required by the TEGLs, that says nothing about the working

conditions of those jobs. Moreover, it gives no indication of what

the offered wage rate might be if it were not for the Department’s

allegedly lax guidelines for the admission of foreign labor.

14

(“The relevant showing for purposes of Article III

standing . . . is not injury to the environment but injury to the

plaintiff. To insist upon the former rather than the latter as

part of the standing inquiry . . . is to raise the standing hurdle

higher than the necessary showing for success on the merits in

an action alleging noncompliance with a[] [discharge]

permit.”).

Having concluded individuals competing in the herder

labor market have standing to challenge the TEGLs, we need

only determine whether any of the plaintiffs in this action is a

member of that market. A party seeking to establish standing

on the basis of the competitor standing doctrine “must

demonstrate that it is a direct and current competitor whose

bottom line may be adversely affected by the challenged

government action.” KERM, Inc. v. FCC, 353 F.3d 57, 60

(D.C. Cir. 2004). The district court concluded “none of [the

plaintiffs] has been a competitor in the open-range herding

industry since May 2011.” Mendoza v. Solis, 924 F. Supp. 2d

307, 319 (D.D.C. 2013). We believe the district court took

too narrow a view of what qualifies as participating in the

herding labor market.

The plaintiffs have averred they are experienced and

qualified herders. See Mendoza Aff. ¶ 5, J.A. 46 (worked as a

sheepherder for about 14 months); Castro Aff. ¶¶ 2, 3, J.A.

51; Catalan Aff. ¶¶ 2, 3, J.A. 55–56. They state they are

interested in working as herders and herding is their preferred

occupation. See Mendoza Aff. ¶¶ 9, 10, J.A. 47 (“Herding is

my preferred occupation. In the city I get board [sic] when I

am not working and I miss working with animals.”); Castro

Aff. ¶¶ 7, 9, J.A. 52; Catalan Aff. ¶¶ 8, 9, J.A. 56–57.

Although the plaintiffs have not averred they have applied for

specific herding jobs since the 2011 TEGLs went into effect,

their affidavits suggest they have monitored the labor market

15

for acceptable positions. See Castro Aff. ¶ 8, J.A. 52 (“After

leaving the ranch, I did find out about another job as a

sheepherder in Washington. But after talking to one of the

former workers, I found out that the conditions were the same

as the ranch I left, so I did not pursue the job.”); Catalan Aff.

¶ 10, J.A. 57 (“I have met sheepherders here in Washington

and they have the same bad conditions that I had when I

worked as an H-2A herder with cattle. . . .”). At least one of

the plaintiffs, Mendoza, has been repeatedly offered a job as a

herder, which he declined due to the poor wages and working

conditions. Mendoza Aff. ¶ 13, J.A. 48 (“My employer from

Henefer, UT calls me every once in a while to ask if I will

return to work for him but he doesn’t offer better pay so I

don’t take his offer.”).

Even though the plaintiffs have not worked as herders

since 2011 and may not have applied for specific herder jobs

since that time, they have affirmed their desire to work as

herders and stated their intention to do so if wages and

working conditions improve. See Mendoza Aff. ¶ 10, J.A. 47

(“I want to work as a herder again.”); id. ¶ 11, J.A. 47 (“I

would be willing to work as a herder if the employer

paid . . . .”); Castro Aff. ¶¶ 7, 9, J.A. 52; Catalan Aff. ¶¶ 8, 9,

J.A. 56–57 (“I would take an open range herding job.”). The

plaintiffs are not removed from the herder labor market

simply because they do not currently work as herders and

have not filled out formal job applications. A person can

involve himself in a job market by means other than

submitting formal applications. Job searches are not such

rigid processes. The plaintiffs continue to monitor the herder

job market with the intention of applying for work in the

industry if conditions improve. Mendoza, in particular, has

demonstrated a substantial likelihood he would be able to find

a job as a herder since he has been repeatedly offered jobs by

a former employer. The plaintiffs’ affidavits thus

16

demonstrate their informal involvement in the labor market.

And because the plaintiffs retained ties to the industry, it was

reasonable for them to conclude that formally applying for

jobs would be futile when they would not accept a job

offering the prevailing wage and working conditions. See

Castro Aff. ¶ 8, J.A. 52 (stating he found out about a

sheepherder position in Washington but did not pursue the job

after finding out the conditions were the same as the ranch he

had previously left).

The standing inquiry here is similar to that in Friends of

the Earth. In that case, an environmental group asserted

standing to sue under the Clean Water Act a company

allegedly discharging pollutants into the North Tyger River.

Friends of the Earth, Inc., 528 U.S. at 175–79. The Supreme

Court held members of the plaintiff organizations had

demonstrated sufficient injury to establish standing. Id. at

180–86. One of the plaintiffs’ members had averred “he

would like to fish, camp, swim, and picnic in and near the

river . . . as he did when he was a teenager, but would not do

so because he was concerned that the water was polluted by

Laidlaw’s discharges.” Id. at 181–82. Other members stated

they used to picnic, camp, hike, birdwatch, boat, and wade

along the river but they no longer engaged in these activities

because of concern about harmful effects from discharged

pollutants. Id. at 182–83. The Court held these sworn

statements adequately documented injury in fact. Id. at 183.

Like the affidavits discussed in Friends of the Earth, the

plaintiffs’ affidavits regarding their interest in working as

herders present more than “general averments” and

“conclusory allegations.” Id. at 184. The plaintiffs have

attested to specific experience that qualifies them to work as

herders; the particular working conditions that led them to

leave the industry; the specific wages and conditions they

17

would require to accept new employment as workers; the

manner in which they have kept abreast of conditions in the

industry; and, at least with regard to Mendoza, a specific

possible avenue for obtaining reemployment as a herder. 6

Finally with regard to plaintiffs’ constitutional standing,

the intervenors argue the plaintiffs do not have standing

because their injury was not caused by the 2011 TEGLs, but

by policies that pre-existed those guidelines. But the fact that

previous policies may have caused the plaintiffs similar harm

does not mean the 2011 TEGLs do not cause the plaintiffs

injury in fact. Transportation Workers Union of America,

AFL-CIO v. Transportation Security Administration, 492 F.3d

6

The plaintiffs do not need to apply for and be offered positions

they have a reasonable basis for knowing will provide substandard

compensation and conditions just to maintain standing to bring this

suit. To create such a standard would require plaintiffs “to engage

in a futile act.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098,

1102 (D.C. Cir. 2005) (holding plaintiff had standing to challenge a

Parole Commission rule preventing him from having a

representative at his parole hearing despite the fact he had not

obtained a representative who would have been ready and able to

appear on his behalf). The plaintiffs’ members in Friends of the

Earth had standing even though they did not continue to hike,

swim, and boat along the North Tyger River despite the pollution.

See Friends of the Earth, Inc., 528 U.S. at 182–83 (holding

members wished to engage in recreational activities but refrained

from doing so because of the pollution). Cf. Sporhase v. Neb. ex

rel. Douglas, 458 U.S. 941, 944 & n.2 (1982) (holding appellants

had standing to challenge Nebraska law requiring them to obtain

permit before transferring water across the state border even though

they had never applied for a permit because, under the challenged

law, the permit would not have been granted). We do not generally

require plaintiffs to engage in a futile act to prove the sincerity of

their injury.

18

471 (D.C. Cir. 2007)—the case on which the intervenors rely

for this argument—is inapposite. In Transportation Workers

Union, we considered a procedural challenge to TSA’s Legal

Guidance defining the term “conviction.” Id. at 472.

Employees “convicted” of listed crimes were prohibited from

working in sensitive areas of an airport. Id. at 473. In 2003,

TSA published a Legal Guidance defining the term, and in

2004 the agency updated the guidance, making slight changes.

Id. After a union worker was suspended from his job, the

union filed an action challenging the issuance of the 2004

Guidance—specifically, the procedural wrong of switching

from the 2003 to the 2004 guidance without notice and

comment. Id. at 474–75. The plaintiff conceded the 2003

Guidance was properly issued, and we determined the worker

would have been ineligible for his job under either the 2003

or 2004 guidance. Id. at 475–77. Therefore, we held the

union lacked standing because of “the particular claim” it

advanced—the union was challenging the change from the

2003 to 2004 guidance and this change did not cause the

suspension. Id.

This case presents a different type of claim. Plaintiffs are

not challenging the 2011 TEGLs on the basis that they

impermissibly changed a valid previous policy. Rather,

plaintiffs are arguing the 2011 TEGLs, like all prior

Department of Labor guidance on the matter, were

implemented without the required notice and comment

procedures. In the type of case now before us, where the

plaintiffs do not concede that prior procedures were validly

promulgated, the fact that previous rules may also have

caused the plaintiffs injury does not break the causal link

between the rules they now challenge and the asserted injury.

The only relevant inquiry is whether the 2011 TEGLs cause

injury—and we have concluded they do. Put another way, the

Department of Labor’s previous failure to comply with the

19

notice and comment requirements of the APA cannot excuse

its later violation of those requirements, nor render the latter

violation unreviewable. 7

To conclude, we are satisfied the plaintiffs have Article

III standing to challenge the Department’s failure to engage in

the notice and comment procedures required by the APA.

Under the competitor standing doctrine, the TEGLs affect the

concrete interests of individuals seeking work as herders. The

plaintiffs have established they are seeking work as herders

and would accept such work if provided the wages and

working conditions they contend the law requires. 8 Finally,

because the plaintiffs assert a procedural violation, we can

assume the causal link between that procedural violation and

the substantive outcome of the agency action. 9

7

This discussion assumes the existence of the previous rules does

not result in the plaintiffs’ claims being barred by the statute of

limitations, an issue we discuss below.

8

Because we find the plaintiffs are willing and available to work as

herders, we need not consider plaintiffs’ alternative argument that

plaintiff Catalan has standing because the wages he receives in his

current job as a ranch hand are depressed by the influx of foreign

herders.

9

Having concluded plaintiffs sufficiently demonstrated standing

under the standards applicable at the motion to dismiss stage, we

have no trouble concluding they also meet their burden under the

applicable standard at the summary judgment stage. See Lujan, 504

U.S. at 561 (plaintiff must establish the elements of standing in a

different manner depending on the stage of litigation). The relevant

facts—including, for instance, plaintiffs’ experience working as

open-range herders and that Mendoza has received job offers to

return to herding—are undisputed. Rather, defendants challenge

the sufficiency of those facts to meet the legal standard for injury in

fact, causation, and redressability. The standard for resolution of

20

III

Our conclusion that the plaintiffs meet the constitutional

requirements for standing does not end our discussion of the

plaintiffs’ right to pursue this action. We must also inquire

whether the plaintiffs fall within the class of persons whom

Congress has authorized to sue under the Administrative

Procedure Act. To do so, we ask whether “a plaintiff’s

grievance . . . arguably fall[s] within the zone of interests

protected or regulated by the statutory provision or

constitutional guarantee invoked in the suit.” Bennett v.

Spear, 520 U.S. 154, 162 (1997). Following the lead of the

Supreme Court, see, e.g., id. at 163, we have previously

referred to this requirement as one of “prudential standing”—

and so the district court did in its opinion. Recently, however,

the Supreme Court has clarified that “‘prudential standing’ is

a misnomer” because the zone-of-interests analysis does not

rest on prudential considerations, but rather asks the statutory

question of whether “a legislatively conferred cause of action

encompasses a particular plaintiff’s claim.” Lexmark Int’l,

Inc., 134 S. Ct. at 1386–88 (quoting Ass’n of Battery

Recyclers, Inc. v. EPA, 716 F.3d 667, 675–76 (D.C. Cir.

2013) (Silberman, J., concurring)). 10

these legal arguments is the same at the motion to dismiss stage as

it is on a motion for summary judgment. Furthermore, as is evident

from our discussion, both we and the district court have considered

relevant facts found outside of the complaint, as we are permitted to

do on a Rule 12(b)(1) motion to dismiss for lack of jurisdiction.

Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003).

10

Lexmark International was decided subsequent to oral argument

in this case. Because it calls for us to reframe what the district

court described as a “prudential standing” inquiry, the case would

21

Although the plaintiffs here assert a cause of action under

the APA, in considering whether plaintiffs are authorized to

sue under that law we look to whether they fall within the

zone of interests sought to be protected by the substantive

statute pursuant to which the Department of Labor acted: the

INA. See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345–

48 (1984). Nevertheless, we apply the zone-of-interests test

in a manner consistent with “Congress’s evident intent when

enacting the APA to make agency action presumptively

reviewable.” Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210

(2012). “We do not require any indication of congressional

purpose to benefit the would-be plaintiff.” Id. Rather, a

plaintiff falls outside the group to whom Congress granted a

cause of action only when its interests “are so marginally

related to or inconsistent with the purposes implicit in the

statute that it cannot reasonably be assumed that Congress

intended to permit the suit.” Clarke v. Sec. Indus. Ass’n, 479

U.S. 388, 399 (1987). The zone-of-interests test is not a

demanding one. Id.

The interests protected by the relevant provision of the

Immigration and Nationality Act are plain. The INA requires

a petition to admit aliens as H-2A workers only be approved

if the petitioner has received certification from the Secretary

of Labor that:

(A) there are not sufficient workers who are able, willing,

and qualified, and who will be available at the time and

have been the proper subject of a letter from the parties pursuant to

Federal Rule of Appellate Procedure 28(j). We urge counsel to

diligently keep us apprised of relevant legal developments that

occur even after oral argument.

22

place needed, to perform the labor or services involved in

the petition, and

(B) the employment of the alien in such labor or services

will not adversely affect the wages and working

conditions of workers in the United States similarly

employed.

8 U.S.C. § 1188(a)(1). The clear intent of this provision is to

protect American workers from the deleterious effects the

employment of foreign labor might have on domestic wages

and working conditions. In particular, Congress was

concerned about (1) the American workers who would

otherwise perform the labor that might be given to foreign

workers, and (2) American workers in similar employment

whose wages and working conditions could be adversely

affected by the employment of foreign laborers. See Int’l

Union of Bricklayers & Allied Craftsmen, 761 F.2d at 804–05

(“The legislative history of [the INA] (as initially passed)

clearly evinces a congressional purpose to keep American

labor stalwart in the face of foreign competition in the United

States . . . .”); Int’l Longshoremen’s & Warehousemen’s

Union, 891 F.2d at 1379 (“A primary purpose of the

immigration laws, with their quotas and certification

procedures, is to protect American laborers.”).

The district court found the plaintiffs did not fall within

the zone of interests of the Immigration and Nationality Act

for the same reasons it found the plaintiffs lacked Article III

standing—the plaintiffs were not willing and available to

work as herders. But for the same reasons we hold the

plaintiffs have established Article III standing, we also hold

they do fall within the zone of interests of the INA—the

plaintiffs are American workers who would work as herders.

They allege the Department of Labor’s lax certification

23

standards for H-2A visas for herders make it more difficult for

them to find herding jobs with decent wages and working

conditions. The plaintiffs’ interests are squarely “within the

zone of interests protected . . . by the statutory

provision . . . invoked in the suit.” Bennett, 520 U.S. at 162.

The district court held that because the plaintiffs were

unwilling to work at current herder wages they are not

“willing” and “available” workers within the meaning of 8

U.S.C. § 1188(a)(1)(A). See Mendoza, 924 F. Supp. 2d at

322–23. But such a standard would force would-be plaintiffs

to accept substandard wages and working conditions—

precisely the situation the INA seeks to prevent—to prove

their “willingness” and “availability,” and to establish

themselves as within the Act’s zone of interests. This cannot

be the result Congress intended. See 20 C.F.R. § 655.0(a)(2)

(“U.S. workers cannot be expected to accept employment

under conditions below the established minimum levels.”); id.

(“Before any factual determination can be made concerning

the availability of U.S. workers to perform particular job

opportunities . . . the minimum level of wages . . . and

conditions for the particular job opportunities, below which

similarly employed U.S. workers would be adversely affected,

must be established.”). Rather, workers displaced by lax visa

policies from jobs they otherwise would hold fall within the

class of individuals whom the INA seeks to protect. For the

reasons explained above, the plaintiffs’ affidavits establish

they are “able, willing, . . . qualified, and . . . available” to

work as herders. 8 U.S.C. § 1188(a)(1)(A). The plaintiffs fall

within the zone of interests of the INA and have a

legislatively conferred cause of action to raise their claim

regarding the Department of Labor’s administration of the H-

2A program as it regards herders.

24

IV

Although we have concluded the plaintiffs have Article

III standing and statutory authorization to raise their claims,

we cannot yet proceed to the merits of this case. Subject

matter jurisdiction cannot be waived and federal courts have

“an independent obligation to assure [them]selves of

jurisdiction, even where the parties fail to challenge it.”

Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C. Cir.

1997). After oral argument, we asked the parties to submit

supplemental briefing on the question of whether the

plaintiffs’ claims are barred by the statute of limitations. We

conclude they are not.

Unless another statute provides otherwise, civil claims

against the United States—including those brought pursuant

to the APA—are subject to the statute of limitations contained

in 28 U.S.C. § 2401, which allows for civil actions against the

United States so long as “the complaint is filed within six

years after the right of action first accrues.” See Harris v.

FAA, 353 F.3d 1006, 1009 (D.C. Cir. 2004). Congress has

not adopted a special statute of limitations for the type of

claim the plaintiffs bring, so § 2401(a) is relevant here.

Although the defendants had not asserted the statute of

limitations defense until our request for supplemental

briefing, the statute of limitations contained in § 2401(a) is

not subject to waiver like the normal statute of limitations

affirmative defense is. We have long held § 2401(a) “creates

a jurisdictional condition attached to the government’s waiver

of sovereign immunity.” P & V Enters. v. U.S. Army Corps of

Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008). 11 A

11

We have recently questioned the continuing viability of this

holding in light of recent Supreme Court decisions. See P & V

Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1027 & n.2

25

jurisdictional statute of limitations cannot be waived by the

parties. We must determine when the plaintiffs’ right of

action first accrued.

The APA makes reviewable “final agency action.” 5

U.S.C. § 704. A final agency action is “one by which rights

or obligations have been determined or from which legal

consequences will flow.” Bennett, 520 U.S. at 178. Because

an agency’s renewal of an earlier decision does not alter the

status quo, it does not restart the statute of limitations. See

Impro Prods., Inc. v. Block, 722 F.2d 845, 850 & n.9 (D.C.

Cir. 1983) (holding agency’s renewal of earlier decision—

periodic redistribution of reprints of articles allegedly

containing false information—did not restart statute of

limitations). Therefore, we must determine whether the 2011

TEGLs or their predecessors enacted a substantive change

that restarted the statute of limitations clock within the six

years prior to October 7, 2011 when the complaint was

filed. 12

(D.C. Cir. 2008); Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C.

Cir. 2007); Harris, 353 F.3d at 1013 n.7. However, because we

hold the plaintiffs filed this action within six years from the date

their claims accrued, we need not resolve this issue now.

12

Alternatively, the reopener doctrine permits a plaintiff to bring an

otherwise-stale challenge where the agency “has undertaken a

serious, substantive reconsideration of the existing rule.” P & V

Enters., 516 F.3d at 1023–24. The reopener doctrine is employed

when an agency has considered substantively changing a rule but

ultimately declined to do so. We do not employ the doctrine here

because we find there was new agency action substantively

changing the special procedures within the six years prior to the

filing of the complaint.

26

The policies contained in the 2011 TEGLs the plaintiffs

challenge were substantively changed in the six years prior to

the filing of the complaint. Although there had long existed

special procedures for handling H-2A visas for sheepherders

and goatherders, similar special procedures were only

implemented for open-range (cattle) herders in 2007. See

Foreign Labor Certification; Training and Employment

Guidance Letter No. 15-06, at 1 (Feb. 9, 2007), available at

http://wdr.doleta.gov/directives/attach/TEGL/TEGL15-06.pdf

(“establish[ing] special procedures as part of the H-2A labor

certification process for employers who desire to employ

temporary foreign workers in the United States for

occupations involved in the open range production of

livestock” (emphasis added)). The 2007 TEGL No. 15-06

had significant legal consequences for open-range herders and

their employers. We need not decide whether the 2011 TEGL

No. 15-06 substantively altered the policies of the 2007 TEGL

because the plaintiffs’ 2011 challenge to the agency action—

whether concluded in 2007 or 2011—was brought within the

six-year statute of limitations.

The special procedures for H-2A certification for

sheepherders have a longer lineage. The 2011 TEGL No. 32-

10 rescinds and replaces procedures contained in the 2001

Field Memorandum No. 24-01. 13 Because the period for

challenges to the 2001 Field Memorandum has long passed,

we examine whether the 2011 sheepherder TEGL

substantively altered the 2001 policies, and thus constituted

final agency action sparking a new period for review.

13

The 2001 Field Memorandum itself rescinded and replaced

procedures set out in a 1989 Field Memorandum.

27

We conclude the 2011 TEGL contains substantive

changes to the 2001 procedures. Most notably, the 2001 Field

Memorandum required employers to offer sheepherders the

highest of the prevailing wage rate, a special monthly AEWR

set by the Department of Labor, or the legal minimum wage

rate. See Field Memorandum No. 24-01, Special Procedures:

Labor Certification for Sheepherders and Goatherders Under

the H-2A Program (Aug. 1, 2001), available at

http://www.foreignlaborcert.doleta.gov/fm/fm_24-01.htm

(“2001 Field Memorandum”); Special Procedures attached to

2001 Field Memorandum 3, available at

http://www.foreignlaborcert.doleta.gov/fm/fm_24-01a.pdf

(“2001 Special Procedures”). The 2011 TEGL removes the

option for the Department to establish a special monthly

AEWR, thus allowing employers to pay the higher of only the

prevailing wage rate or the legal minimum wage rate. TEGL

No. 32-10, 76 Fed. Reg. at 47,257–58. As another example,

the 2011 TEGL exempts individual employers and employer

associations from the requirement—which is generally

applicable to other H-2A employers, see 20 C.F.R. § 655.151,

and which was applicable to herding associations under the

2001 Field Memorandum, see 2001 Special Procedures 8–9—

of placing job advertisements in newspapers. TEGL No. 32-

10, 76 Fed. Reg. at 47,260.

The numerous alterations to the H-2A visa process and

minimum standards for sheepherders, at least in the aggregate,

are substantive changes constituting new agency action. The

2011 TEGLs altered the wages and working conditions H-2A

employers are required to offer American sheepherders, as

well as the availability of such jobs. Furthermore, the

contents of the sheepherder TEGL must stand or fall together;

they outline a single compensation package and set of

procedures to protect American workers. We cannot separate

policies untouched by the 2011 update from those

28

substantially altered by the TEGL. Cf. MD/DC/DE

Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001)

(“Whether the offending portion of a regulation is severable

depends upon the intent of the agency and upon whether the

remainder of the regulation could function sensibly without

the stricken provision.”).

Because the open-range herder TEGL reflects special

procedures first introduced within the statute of limitations,

and because the sheepherder and goatherder TEGL

substantively alters the procedures previously in place, both

TEGLs are the product of final agency action. The TEGLs

meaningfully altered the rights and obligations of herders and

their employers. See Bennett, 520 U.S. at 178. The plaintiffs

properly filed their claims within six years of the final agency

action. The claims are not barred by the statute of limitations.

V

Having concluded we have jurisdiction to hear this

action, we can finally turn to the merits of the plaintiffs’

claim. We do this even though the district court, dismissing

the action for lack of jurisdiction, never reached the merits.

Although our general practice in such a case is to remand to

the district court, we think it appropriate to resolve the issue

now. See WildEarth Guardians v. Jewell, 738 F.3d 298, 308

n.4 (D.C. Cir. 2013); Friends of Blackwater v. Salazar, 691

F.3d 428, 434 n.* (D.C. Cir. 2012). The plaintiffs and the

government fully briefed the issue before this court and

requested that, if we find the plaintiffs have standing, we

reach the merits of plaintiffs’ claims. We have considered the

full briefing the intervenors submitted to the district court

regarding the motions for summary judgment. The district

court has no comparative advantage in reviewing the agency

action for compliance with the notice and comment

29

requirements. An appeal from any district court decision after

remand is likely, and our review of the district court’s

decision would be de novo. See Roberts v. United States, 741

F.3d 152, 157–58 (D.C. Cir. 2014) (“We review the district

court’s grant of summary judgment de novo, which is to say

we review the administrative action directly, according no

particular deference to the judgment of the District Court.”).

As even the intervenors—who ask us to remand to the district

court—acknowledge, the merits of the plaintiffs’ claim

involve purely legal questions. Def.-Intervenors’ Mem. Supp.

Mot. Summ. J., Mendoza v. Solis, ECF No. 29-2, No. 1:11-cv-

1790 (D.D.C.). Moreover, the merits of this case are clear. A

remand to the district court would be a waste of judicial

resources.

An agency is generally required by the APA to publish

notice of proposed rulemaking in the Federal Register and to

accept and consider public comments on its proposal. 5

U.S.C. § 553. The APA exempts from these procedural

requirements: (1) interpretative rules; (2) general statements

of policy; and (3) rules of agency organization, procedure, or

practice. Id. 14 This court has generally referred to the

category of rules to which the notice and comment

requirements do apply as “legislative rules” or, sometimes,

“substantive rules.” Cent. Tex. Tel. Co-op, Inc. v. FCC, 402

F.3d 205, 210 (D.C. Cir. 2005); U.S. Telecom Ass’n v. FCC,

400 F.3d 29, 34 (D.C. Cir. 2005).

14

Defendants do not argue the TEGLs constitute general statements

of policy, so we do not address this exemption.

30

A

The defendants argue the TEGLs are interpretative rules

exempt from notice and comment procedures. “An

‘interpretative rule’ describes the agency’s view of the

meaning of an existing statute or regulation.” Batterton v.

Marshall, 648 F.2d 694, 702 n.34 (D.C. Cir. 1980). The

court’s inquiry in distinguishing legislative rules from

interpretative rules “is whether the new rule effects a

substantive regulatory change to the statutory or regulatory

regime.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland

Sec. (EPIC), 653 F.3d 1, 6–7 (D.C. Cir. 2011). Interpretative

rules are those that clarify a statutory or regulatory term,

remind parties of existing statutory or regulatory duties, or

“merely track[]” preexisting requirements and explain

something the statute or regulation already required. Nat’l

Family Planning & Reprod. Health Ass’n, Inc. v. Sullivan,

979 F.2d 227, 236–37 (D.C. Cir. 1992). To be interpretative,

a rule “must derive a proposition from an existing document

whose meaning compels or logically justifies the

proposition.” Catholic Health Initiatives v. Sebelius, 617 F.3d

490, 494 (D.C. Cir. 2010).

A legislative rule, on the other hand, “is one that does

more than simply clarify or explain a regulatory term, or

confirm a regulatory requirement, or maintain a consistent

agency policy.” Nat’l Family Planning & Reprod. Health

Ass’n, Inc., 979 F.2d at 237. A rule is legislative if it

supplements a statute, adopts a new position inconsistent with

existing regulations, or otherwise effects a substantive change

in existing law or policy. Id.; see also Shalala v. Guernsey

Mem’l Hosp., 514 U.S. 87, 100 (1995).

The defendants point to four statutory and regulatory

provisions the TEGLs purportedly interpret. First, the

31

defendants argue the TEGLs are interpretations of the

Department’s mandate, found at 8 U.S.C. § 1188(a)(1), to

certify the admission of H-2A workers only if there are not

sufficient American workers and if admitting the foreign

workers would not adversely affect the wages and working

conditions of American workers similarly employed.

According to the defendants, the TEGLs interpret this

statutory requirement by providing guidelines to determine

whether there are sufficient American workers for herding

occupations. If the defendants are correct, it is difficult to

imagine what regulations would require notice and comment

procedures. Section 1188(a)(1) establishes the INA’s general

mission; Congress left it to the Department of Labor to

implement that mission through the creation of specific

substantive provisions. To take just one example, the statute

does not provide adequate guidance with regard to how an

employer must attempt to recruit American workers before it

can obtain certification that there is a shortage of American

workers—an issue the TEGLs clarify in some detail. The

statute explicitly envisions implementing regulations that will

clarify the meaning and application of its provisions. See 8

U.S.C. §§ 1188(b)(1), (c)(3)(B)(i), (c)(3)(B)(iii), (c)(4); cf.

AFL-CIO v. Brock, 835 F.2d 912, 914 (D.C. Cir. 1987)

(“[T]he [statute] does not define ‘adverse effect.’ Nor does

the Act specify how adverse effect is to be measured. The

Department is entrusted with these tasks.”). The TEGLs do

more than clarify or remind parties of preexisting duties under

§ 1188. Rather, they supplement the statute by imposing

specific duties on employers seeking certification under the

statute. Cf. EPIC, 653 F.3d at 7 (agency’s formulation of

strict and specific obligations to implement a broad statutory

command—“to detect weapons”—was not an interpretative

rule). 15

15

If the TEGLs and general H-2A regulations were both merely

32

Second, the Department of Labor argues the TEGLs

interpret the statutory directive “[t]hat the Secretary of Labor

shall issue regulations which address the specific

requirements of housing for employees principally engaged in

the range production of livestock.” 8 U.S.C. § 1188(c)(4).

But rather than setting out a substantive standard the TEGLs

might interpret, the statute delegates authority for the

Secretary of Labor to create the substantive standard. Where

Congress has specifically declined to create a standard, the

Department cannot claim its implementing rule is an

interpretation of the statute. As the Seventh Circuit has

stated, a binding rule promulgated pursuant to a delegation of

legislative authority is “the clearest possible example of a

legislative rule, as to which the notice and comment

procedure not followed here is mandatory, as distinct from an

interpretive rule; for there [is] nothing to interpret.” Hoctor v.

U.S. Dep’t of Agric., 82 F.3d 165, 169–70 (7th Cir. 1996).

Third, the intervenors argue the TEGLs interpret 20

C.F.R. § 655.102, which grants the Office of Foreign Labor

Certification Administrator the authority to establish special

procedures for processing certain H-2A applications—

including those for herders. This argument fails for the same

reason the previous argument fails. In issuing the TEGLs, the

Department cannot possibly be interpreting a grant of

unconstrained and undefined authority. See EPIC, 653 F.3d

at 7 (“[T]he purpose of the APA would be disserved if an

agency with a broad statutory command . . . could avoid

notice-and-comment rulemaking simply by promulgating a

interpreting the same language of § 1188, it is difficult to imagine

how those rules could produce such different schemes, for instance

with regard to whether employers must offer workers an Adverse

Effect Wage Rate.

33

comparably broad regulation . . . and then invoking its power

to interpret that statute and regulation in binding the public to

a strict and specific set of obligations.”). Furthermore,

§ 655.102 states the Administrator may establish an AEWR

for herding occupations. It would be preposterous for the

defendants to argue the Department’s decision not to establish

an AEWR for herders is only an interpretation of a provision

granting it the authority to establish such a wage rate.

Fourth, the Department argues that, in setting wage

requirements for H-2A employers, the TEGLs interpret the

term “offered wage rate” found in 20 C.F.R. § 655.120.

Section 655.120—which is titled “Offered wage rate”—

requires employers to offer and pay workers “a wage that is

the highest of the AEWR, the prevailing hourly wage or piece

rate, the agreed-upon collective bargaining wage, or the

Federal or State minimum wage, except where a special

procedure is approved for an occupation or specific class of

agricultural employment.” The TEGLs cannot be interpreting

the “offered wage rate” as defined in 20 C.F.R. § 655.120

because they ignore that regulation’s general rule and, instead,

take advantage of its standardless exception. In fact, the

TEGLs state they “continu[e] a special variance to the offered

wage rate requirements contained at 20 CFR 655.120(a).”

TEGL No. 15-06, 76 Fed. Reg. at 47,244; TEGL No. 32-10,

76 Fed. Reg. at 47,257. The Department cannot claim to be

interpreting the very regulatory provision from which its own

rules declare it departs. Cf. United States v. Picciotto, 875

F.2d 345, 313–14 (D.C. Cir. 1989) (“In essence, the Park

Service is claiming that an agency can grant itself a valid

exemption to the APA for all future regulations, and be free of

APA’s troublesome rulemaking procedures forever after,

simply by announcing its independence in a general rule.

That is not the law. Such agency-generated exemptions

34

would frustrate Congress’ underlying policy in enacting the

APA by rendering compliance optional.”).

The defendants cannot successfully point to any statute or

regulation that creates substantive standards the TEGLs

interpret. Rather than interpreting an existing statute or

regulation, the TEGLs “endeavor[] to implement the statute,

the effect of a legislative rule.” Chamber of Commerce of

U.S. v. OSHA, 636 F.2d 464, 469 (D.C. Cir. 1980). They

“provide[] the policy decision Congress omitted” in § 1188—

namely, how to ensure the admission of foreign herders does

not adversely affect American workers. Id.

B

The Department of Labor alternatively argues the TEGLs

are exempt from notice and comment procedures because they

are “rules of agency organization, procedure, or practice.” 5

U.S.C. § 553(b). “Procedural rules,” the general label for

rules falling under this exemption, are “primarily directed

toward improving the efficient and effective operations of an

agency, not toward a determination of the rights [or] interests

of affected parties.” Batterton, 648 F.2d at 702 n.34.

Congress provided this exemption from the normal

rulemaking procedures “to ensure that agencies retain latitude

in organizing their internal operations.” Id. at 707.

Procedural rules “do not themselves alter the rights or

interests of parties, although [they] may alter the manner in

which the parties present themselves or their viewpoints to the

agency.” Id. “[T]he distinction between substantive and

procedural rules is one of degree depending upon whether the

substantive effect is sufficiently grave so that notice and

comment are needed to safeguard the policies underlying the

APA.” EPIC, 653 F.3d at 5–6. Those policies are “to serve

the need for public participation in agency decisionmaking

35

and to ensure the agency has all pertinent information before

it when making a decision.” Id. at 6. The exception for

procedural rules is narrowly construed, id., and cannot be

applied “where the agency action trenches on substantial

private rights and interests,” Batterton, 648 F.2d at 708.

Our decision in EPIC is instructive. In that case, this

court confronted a Transportation Security Administration

decision to screen airline passengers using advanced imaging

technology rather than magnetometers. EPIC, 653 F.3d at 2–

3. TSA, attempting to defend its adoption of the rule without

notice and comment, argued the decision merely affected the

procedures TSA would use in processing passengers through

the checkpoint. Id. at 6. We stated this was an “overly

abstract account of the change in procedure at the

checkpoint[,] elid[ing] the privacy interests at the heart of the

petitioners’ concern.” Id. Even though the checkpoint

protocols might be termed “procedural,” the change

“substantively affect[ed] the public to a degree sufficient to

implicate the policy interests animating notice-and-comment

rulemaking.” Id. Thus, we held the rule had “the hallmark of

a substantive rule” and was not entitled to the APA’s

exception for procedural rules. Id.

Similarly, the TEGLs promulgated by the Department of

Labor substantively affect the regulated public. Perhaps

“stated at a high enough level of generality,” id., the TEGLs

seem procedural—they set forth the agency’s enforcement

plan for determining employer compliance with the

requirements of the INA and describe how employers seeking

H-2A certification should present themselves to the agency.

But a more practical account of the rules makes it clear the

TEGLs create substantive requirements by, inter alia, setting

the minimum wage an employer must offer American workers

before it can obtain H-2A certification. The TEGLs do not

36

merely describe how the Department will evaluate H-2A

applications, but they set the bar for what employers must do

to obtain approval. In doing so, they substantially affect the

rights and interests of both herders and employers.

The Department’s attempt to compare the TEGLs to the

Peer Review Organizations (PRO) Manual—which this court

found to constitute a procedural rule not subject to the notice

and comment requirement—in American Hospital Ass’n v.

Bowen, 834 F.2d 1037 (D.C. Cir. 1987), is unavailing. The

Manual at issue in that case set forth an enforcement plan for

the Department of Health and Human Service’s agents in

monitoring the activities of Medicare providers. Id. at 1050.

The regulations established areas of focus for PRO review but

did not impose any new burdens on hospitals that would

warrant notice and comment. Id. at 1050–51. But, as we

noted, had HHS “inserted a new standard of review” or a

“presumption of invalidity” applicable to certain operations,

“its measures would surely require notice and comment, as

well as close scrutiny to insure that it was consistent with the

agency’s statutory mandate.” Id. at 1051.

The TEGLs at issue here are nothing like the Peer

Review Organizations Manual we examined in American

Hospital Ass’n. The TEGLs do not merely instruct

Department of Labor agents to give extra scrutiny to H-2A

applications from herder operations. Rather, they alter the

standards imposed on herding employers seeking H-2A

certification. They are not procedural, but substantive rules.

C

Beyond our conclusion that the TEGLs do not fall within

the APA’s exceptions, we are convinced the TEGLs were

subject to the notice and comment requirements because they

37

possess all the hallmarks of a legislative rule. The TEGLs are

necessarily legislative rules because they “effect[] a

[substantive] change in existing law or policy,” Nat’l Family

Planning & Reprod. Health Ass’n, Inc., 979 F.2d at 237, and

“effectively amend[] a prior legislative rule,” Am. Mining

Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112

(D.C. Cir. 1993). 16 In the absence of the TEGLs, petitions for

certification of H-2A herders would be subject to the

standards found in 20 C.F.R. part 655, which would, to take

only a few examples, require employers to pay herders the

higher of the AEWR, the prevailing wage, or the minimum

wage, keep track of herders’ hours, and pay herders at least

twice a month. The TEGLs, on the other hand, require

employers to pay only the higher of the prevailing wage rate

or minimum wage, exempt employers from recording herders’

hours actually worked, and allow employers to pay employees

once monthly upon mutual agreement between employer and

worker. TEGL No. 15-06, 76 Fed. Reg. at 47,244–46; TEGL

No. 32-10, 76 Fed. Reg. at 47,257–59. Because the TEGLs

change the regulatory scheme for herding operations, they are

legislative rules. Cf. City of Idaho Falls v. FERC, 629 F.3d

222, 227 (D.C. Cir. 2011). The APA required the Department

of Labor to give the public notice and an opportunity to

comment before it promulgated the TEGLs.

***

16

The intervenors, citing prior TEGLs and Field Memoranda, argue

the 2011 TEGLs restate the Department’s consistent practice

regarding herders. But in deciding whether a rule is interpretative,

we do not look to whether it interprets or restates prior rules

similarly published without notice and comment. Rather, we look

to whether the TEGLs interpret legislative documents—statutes

passed by Congress or regulations promulgated pursuant to the

procedural requirements of the APA.

38

The plaintiffs have asked us to remand to the district

court to craft a remedy to the APA violation. The district

court will have to consider various factors including whether

vacating the TEGLs would have a disruptive effect on the

herding industry and how quickly the Department of Labor

might be able to promulgate, pursuant to the procedural

requirements of the APA, new H-2A regulations for herding

operations. Cf. EPIC, 653 F.3d at 8. We leave these

questions for the district court in the first instance.

The district court erred in holding the plaintiffs lack both

Article III and prudential standing to bring this action. As

participants in the labor market for herders, the plaintiffs were

injured by the Department of Labor’s promulgation of the

TEGLs and fall within the zone of interests protected by the

INA. On the merits of their claim, the plaintiffs are entitled to

entry of summary judgment in their favor. The TEGLs are

legislative rules and the Department of Labor violated the

Administrative Procedure Act by promulgating them without

providing public notice and an opportunity for comment. We

reverse the judgment of the district court and remand for

proceedings consistent with this opinion.

So ordered.