U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ADMINISTRATOR, WAGE AND HOUR

DIVISION, UNITED STATES

DEPARTMENT OF LABOR,

PROSECUTING PARTY,

v.

ARB CASE NO. 2025-0017

ALJ CASE NO. 2024-TNE-00004

ALJ LAUREN C. BOUCHER

DATE: February 28, 2025

THE EDGEWOOD COMPANY,

RESPONDENT.

Before WARREN and ROLFE, Administrative Appeals Judges

DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

PER CURIAM:

This matter arises under the H-2B provisions of the Immigration and

Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(b), as amended, and its implementing

regulations set forth at 20 C.F.R. Part 655, Subpart A, and 29 C.F.R. Part 503.

While this case was pending before Administrative Law Judge (ALJ) Lauren C.

Boucher, Respondent The Edgewood Company filed a Demand for Jury Trial,

alleging that it was entitled to a jury trial under SEC v. Jarkesy. 1 On October 28,

2024, the ALJ denied Respondent’s Demand. On November 27, 2024, Respondent

filed a Petition for Review requesting that the Administrative Review Board (Board)

review the ALJ’s denial. On December 18, 2024, the ALJ certified, at Respondent’s

0F

1

603 U.S. 109 (2024).

2

request, the issue of whether Respondent is entitled to a jury trial under the

Seventh Amendment. 2

1F

Pursuant to the authority delegated by the Secretary of Labor, the Board has

“the discretionary authority to review interlocutory rulings in exceptional

circumstances, provided such review is not prohibited by statute.” 3 When

determining whether to accept an interlocutory appeal, the Board follows the

procedures described in 28 U.S.C. § 1292(b). 4 Consideration of requests for

interlocutory review is essentially a two-step process: (1) the ALJ must certify that

the interlocutory order “involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation,” and (2)

when those elements are met, the Board then exercises its unfettered discretion in

deciding whether to accept or reject the petition for review. 5

2F

3F

4F

Respondent contends that the Board should grant its petition because it

received ALJ certification which “obviates the need for the ARB to consider review

under the collateral order exception[.]” 6 Respondent further contends the ARB

should grant its petition because, counter to the ALJ’s finding that she lacked the

authority to consider the constitutionality of the H-2B statute and regulations, an

“ALJ is not precluded from addressing issues that raise constitutional concerns.” 7

5F

6F

In a recent decision, we clarified that although the Board may consider as

applied constitutional challenges, the Board “may not . . . consider facial challenges

to the ‘legality of a regulatory provision or the constitutionality of a statutory

provision[.]’” 8 Indeed, the Board has long held it does not have the power to pass on

the constitutional validity of the statutes and regulations it administers. 9 And the

7F

8F

Order Granting Respondent’s Motion to Certify Controlling Question of Law for

Interlocutory Review at 3.

2

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

3

Berg v. Nicholas Servs., LLC, ARB No. 2025-0027, ALJ No. 2023-AIR-00012, slip op.

at 2 (ARB Jan. 31, 2025) (citing Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ

No. 2019-SOX-00012, slip op. at 3-4 (ARB Jan. 28, 2020)).

4

See Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip

op. at 6 (ARB Apr. 6, 2023).

5

6

Respondent’s Response to ARB’s Order to Show Cause at 3.

7

Respondent’s Petition for Review at 4.

Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Next Level Sec. Serv., LLC, ARB No.

2024-0028, ALJ No. 2021-FLS-00009, slip op. at 6 n.27 (ARB July 31, 2024).

8

See, e.g., Minthorne v. Virginia, ARB No. 2009-0098, ALJ Nos. 2009-CAA-00004, 00006, slip op. at 8-9 (ARB July 19, 2011) (observing that “it would be inappropriate for the

9

3

plain language of the Secretary’s delegation of authority confirms as much: “[t]he

Board shall not have jurisdiction to pass on the validity of any portion of the Code of

Federal Regulations that has been duly promulgated by the Department of

Labor[.]” 10

9F

Although we categorically do not yet reach the merits of Respondent’s

argument, Respondent’s position at first blush does not appear to present an as

applied constitutional argument that would allow us to navigate these waters.

Neither the statute nor the regulations allow for jury trials; Respondent’s jury

demand appears to necessarily imply that the H-2B statute and implementing

regulations are inherently unconstitutional under Jarkesy and cannot be

implemented as written. The limitation on the Board’s authority to pass on the

facial constitutionality of the statues and regulations it administers -- and the

broader prohibition against ruling on the validity of the Department’s appropriately

promulgated regulations -- thus persuades us that accepting the appeal at this time

would not appear to materially advance the ultimate termination of the litigation. 11

10F

Regardless, and as a completely independent basis to deny the motion, the

Board’s authority to hear interlocutory appeals remains entirely discretionary. 12

And, notably, a “fundamental and longstanding principle of judicial restraint

11F

ARB to pass upon the constitutionality of the [Clean Air Act]. Thus we will presume the

constitutionality of the act[.]”); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Overdevest

Nurseries, L.P., ARB No. 2016-0027, ALJ No. 2015-TAE-00008, slip op. at 15 (ARB Mar. 15,

2018) (recognizing that a challenge to the validity of a regulation “is not properly before the

Board.”).

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).

10

Unlike the recent litigation regarding the inappropriate appointment of Department

of Labor (DOL) ALJs after the Supreme Court issued Lucia v. S.E.C. 585 U.S. 237 (2018),

Respondent’s position on this issue does not seem to allow for a remedy available to DOL

ALJs or the Board. As the Fourth Circuit recently explained, such an available remedy

creates the distinction between an as applied constitutional challenge and a facial

constitutional challenge: “Both ALJs and the Board can hear such as-applied challenges.

Both ALJs and the Board can grant the requested relief of reassignment to a different ALJ.

And both ALJs and the Board did in fact grant that relief in ‘legions’ of other black lung

cases when the Appointments Clause challenge was ‘properly raised.’” Edd Potter Coal Co.,

Inc. v. Director, OWCP, U.S. Dep’t of Lab., 39 F.4th 202, 211 (4th Cir. 2022) (citations

omitted). By contrast, neither DOL ALJs nor the ARB have the authority to grant a jury

trial.

11

See, e.g., Berg, ARB No. 2025-0027, slip op. at 3 (recognizing that that the Board

exercises “unfettered discretion in deciding whether to accept or reject” a petition for

interlocutory review.”); Fagan, ARB No. 2023-0006, slip op. at 6 (recognizing that the

Board’s decision of whether to exercise its discretion to hear an interlocutory appeal is a

prudential matter).

12

4

requires that courts avoid reaching constitutional questions in advance of the

necessity of deciding them.” 13 “This rule must bind not only the courts, but also the

administrative agencies they review, for if it did not, such agencies, ‘by

unnecessarily deciding constitutional issues, would compel the courts to resolve

such issues as well.’” 14 The general rule against reaching broad constitutional

questions when there may be other dispositive grounds to settle a dispute further

persuades us that this is not the truly exceptional case that warrants ignoring our

general practice to refuse piecemeal appeals, and to reserve judgment on this issue

until (and if) it reaches us through the normal course of litigation. 15 As a matter of

discretion, we thus further find that Respondent’s petition does not justify delaying

the hearing below.

12F

13F

14F

We DENY Respondent’s Petition for Interlocutory Review.

SO ORDERED.

____________________________________

IVEY S. WARREN

Administrative Appeals Judge

_____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

13

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).

Gutierrez v. INS, 745 F.2d 548, 550 (9th Cir. 1984) (Kennedy, J.) (quoting Tung Chi

Jen v. INS, 566 F.2d 1095, 1096 (9th Cir. 1977)).

14

See Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049,

slip op. at 2 (ARB Sept. 11, 2012) (“[T]he Secretary of Labor and the Board have held many

times that interlocutory appeals are generally disfavored and that there is a strong policy

against piecemeal appeals.”) (citations omitted).

15