Amicus Curiae Brief — Department of Labor, et al., Petitioners v. Sun Valley Orchards, LLC

Supreme Court briefJun 25, 2026

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No. 25–966

 

Supreme Court of the United States

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Petitioners,

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Respondent.

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On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

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Brief of Amici Curiae National Lawyers Guild,

National Employment Lawyers Association, National

Legal Aid & Defender Association, California Rural

Legal Assistance Foundation, Northwest Workers’

Justice Project, and Justice in Motion,

in Support of Petitioners

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Counsel of Record

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Albany, NY 12208

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Attorneys for Amici Curiae

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Table of Contents

Interest of Amici Curiae.............................................1

Summary of Argument...............................................3

Argument...................................................................5

A. Relevant Legal Frameworks and Case

History...........................................................5

B. DOL’s labor-certification enforcement

actions come within the public-rights

doctrine, because they are more like the

enforcement of a grant of right than

a contract........................................................8

Conclusion...............................................................21

II

Table of Authorities

Cases:

Barton v. U.S. Department of Labor,

757 F. Supp. 3d 766 (E.D. Ky. 2024)........................16

Cejas Commercial Interiors, Inc. v. Torres-Lizama,

316 P.3d 389 (Or. Ct. App. 2013)...............................2

Crowell v. Benson, 285 U.S. 22 (1932)...................15, 17

Curtis v. Loether, 415 U.S. 189 (1974)........................18

Fontain v. Ravenel, 58 U.S.

(17 How.) 369 (1854).........................................14, 15

Frederick County Fruit Growers Association, Inc.

v. Martin, 968 F.2d 1265 (D.C. Cir. 1992)..................9

Granfinanciera, S.A. v. Nordberg,

492 U.S. 33 (1989).............................................17, 18

In re Nagao, 4 Alaska 678 (D. Alaska 1913)...............12

Mendoza v. Perez,

754 F.3d 1002 (D.C. Cir. 2014)................................16

Mowry v. Whitney,

81 U.S. (14 Wall.) 434 (1872)..................................16

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1855)........................9, 14

North Carolina Growers’ Association, Inc. v. United

Farm Workers, 702 F.3d 755 (4th Cir. 2012).............20

Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982)........9, 18

Oil States Energy Servs., LLC v. Greene’s

Energy Grp., LLC, 584 U.S. 325 (2018).....................9

R v. Butler (1685) 83 Eng. Rep. 659; 3 Lev. 220.........14

III

Reyes v. Remington Hybrid Seed Co., Inc.,

495 F.3d 403 (7th Cir. 2007)......................................2

Rhode Island v. Massachusetts,

37 U.S. (12 Pet.) 657 (1838)....................................13

Rivera v. Peri & Sons Farms, Inc.,

735 F.3d 892 (9th Cir. 2013)......................................9

SEC v. Jarkesy, 603 U.S. 109 (2024)..................8, 9, 15,

17, 18

Stern v. Marshall, 564 U.S. 462 (2011)...................9, 15

Thomas v. Union Carbide Agricultural Products Co.,

473 U.S. 568 (1985)..................................................9

Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997).......2

Tull v. United States, 481 U.S. 412 (1987)..................18

United States v. American Bell Telephone Co.,

32 F. 591 (C.C.D. Mass. 1887).................................12

United States v. American Bell Telephone Co.,

128 U.S. 315 (1888).................................................13

United States v. Palmer, 128 U.S. 262 (1888)..............13

Statutes:

8 U.S.C. § 1101(a)(15)(H)(ii)(a).................................5

8 U.S.C. § 1184(c).......................................................5

8 U.S.C. § 1188....................................3, 5, 6, 7, 11, 15,

18, 19, 20, 21

8 U.S.C. § 1188(a)......................................................5

8 U.S.C. § 1188(a)(2)................................................12

8 U.S.C. § 1188(b)(2)..................................................5

8 U.S.C. § 1188(c)(3)..................................................5

IV

8 U.S.C. § 1188(c)(3)(A)(i).........................................5

8 U.S.C. § 1188(c)(4)..................................................5

8 U.S.C. § 1188(g)(2).......................................6, 11, 15

8 U.S.C. § 1324.........................................................11

8 U.S.C. § 1324a.......................................................11

31 U.S.C. § 3711(g)(1)..............................................19

42 U.S.C. § 1981.........................................................4

Immigration and Nationality Act of 1952,

Pub. L. No. 82–414, 66 Stat. 163...............................5

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411.....5

Regulations:

20 C.F.R. § 653.501(c)................................................6

20 C.F.R. § 655.101(a)................................................6

20 C.F.R. § 655.101(b)................................................7

20 C.F.R. § 655.103....................................................6

20 C.F.R. § 655.121(a)(1)...........................................6

20 C.F.R. § 655.121(a)(4)...........................................6

20 C.F.R. § 655.122....................................................6

20 C.F.R. § 655.122(a)..............................................10

20 C.F.R. § 655.122(c)..............................................10

20 C.F.R. § 655.122(q)..........................................6, 10

20 C.F.R. § 655.130....................................................6

20 C.F.R. § 655.130(a)(1)...........................................7

20 C.F.R. § 655.135...................................................19

V

20 C.F.R. § 655.160....................................................7

20 C.F.R. § 655.161....................................................7

20 C.F.R. § 655.162....................................................7

20 C.F.R. § 655.1305...................................................7

20 C.F.R. § 655.1317.................................................18

20 C.F.R. § 655.1317(a)............................................18

20 C.F.R. § 655.1317(b)............................................18

29 C.F.R. § 501.3(a)...................................................6

29 C.F.R. § 501.16(a)(1)...........................................19

29 C.F.R. § 501.20(i).................................................19

29 C.F.R. § 501.31......................................................7

29 C.F.R. § 501.32......................................................7

29 C.F.R. § 501.33......................................................7

29 C.F.R. § 501.36......................................................7

29 C.F.R. § 501.37(a)..................................................7

29 C.F.R. § 501.40......................................................7

29 C.F.R. § 501.41......................................................7

29 C.F.R. § 501.42(a)..................................................7

29 C.F.R. § 501.45......................................................7

29 C.F.R. § 501.47......................................................8

VI

Miscellaneous:

2 M B , A N A

 

  L (1st ed. 1736).....................................13

Stephen D. Billington & Joe Lane, Procuring

Promising Provisions: the British Patent System

and the Navy Proviso, 1794–1831,

30 E . R. E . H . 79 (2026).....................13

3S

W   B , C   

 L  E   (1768)..................12, 13

B’ L D 

  (12th ed. 2024).............12

Brief for Petitioners, Dep’t of Labor v. Sun Valley

Orchards, LLC, No. 25-966 (U.S. June 18, 2026).....11

2 R   B

 J  B , A N L

D 

 : I   

G   U, 

  

G 

  P 

(1792)....................................................................12

1 W.S. H  , A H   

E   L (1923).......................................13, 19

Ramon A. Klitzke, Historical Background

of the English Patent Law, 41 J. P. O.

S ’ 615 (1959).........................................12, 19, 20

Mark A. Lemley, Why Do Juries Decide

If Patents Are Valid?, 99 V. L. R.

1673 (2013).......................................................13, 18

Thomas O. Main, ADR: The New Equity,

74 U . C . L. R. 329 (2005)..........................12

Adam Mossoff, Rethinking the Development of

Patents: An Intellectual History, 1550–1800, 52

H  L. R. 1255 (2001)..............................20

NLG, About, www.nlg.org/about/...............................1

VII

Claude D. Rohwer, Terminable-at-Will Employment:

New Theories for Job Security, 15 P. L. R.

759 (1984)..............................................................10

U.S. Department of Labor,

Form ETA-790.........................................................6

U.S. Department of Labor,

Form ETA-790A.......................................................6

U.S. Department of Labor,

Form ETA-9142A.....................................................6

U.S. Department of Labor,

Form ETA-9142A – Appendix A...............................7

1 N  W  , A  D 

 

  E   L  (1828)......................12

1

Interest of Amici Curiae1

1. The National Lawyers Guild (NLG) is a nationwide bar association of progressive legal professionals.

Founded in 1937, NLG collected attorneys and others

in the field to advance labor rights under newly established administrative-law frameworks, like the Social

Security Act and the National Labor Relations Act.

Our members have kept to the task while expanding

our reach into other legal areas, including immigration,

housing, public benefits, civil rights, and international

law. Stated simply, “[o]ur mission is to use law for the

people.” NLG, About, www.nlg.org/about/. We have 63

local chapters across the United States.

NLG attorneys took interest in the potential

passage of The Immigration Reform and Control Act

of 1986, and they played a role in shaping the contours

of the labor protections required by the H–2A visa

program that law established. Our members continue

to engage with that law and its protections today, as

counsel for agricultural workers. We thus have a longstanding interest in the proper interpretation, operation, and enforcement of the H–2A visa program.

2. The National Employment Lawyers Association

(NELA) is the largest professional membership organization in the United States dedicated to advancing

employee rights. Its members represent workers in

labor, employment, and civil rights cases nationwide.

Many NELA members represent agricultural workers

who rely on the H–2A visa program for workplace

protections. NELA therefore has an interest in how

courts interpret the program.

3. The National Legal Aid & Defender Association

(NLADA) is America’s oldest and largest national

1

No counsel for a party authored part of this brief. No one

other than amici curiae and their counsel made a monetary

contribution to the preparation or submission of this brief.

2

nonprofit organization dedicated to excellence in the

delivery of legal services, serving as a collective voice

for civil legal aid and public defense systems

throughout the nation. NLADA represents thousands

of attorneys and advocates in the 50 states, the District of Columbia, American Samoa, Micronesia,

Puerto Rico, and the U.S. Virgin Islands. Its membership also includes representatives from communities

eligible for legal services. NLADA hosts a section devoted to Farmworker Law and supports maintaining

the H–2A visa program’s labor protections.

4. The Northwest Workers’ Justice Project

(NWJP) is a not-for-profit law firm representing low

wage, immigrant, and contingent workers in Oregon

and the Pacific Northwest with respect to employment

matters. It has extensive experience representing workers, including H–2A workers and their organizations, in

litigation arising under the H–2A program. Its staff

was counsel to plaintiffs in Torres-Lopez v. May, 111

F.3d 633 (9th Cir. 1997), and Cejas Commercial Interiors, Inc. v. Torres-Lizama, 316 P.3d 389 (Or. Ct. App.

2013), seminal cases applying the “suffer or permit to

work” definition of employment in the Ninth Circuit

and Oregon state courts, respectively, and to amici in

Reyes v. Remington Hybrid Seed Co., Inc., 495 F.3d 403

(7th Cir. 2007). It has frequently participated in

Department of Labor rulemaking affecting the H–2A

program. NWJP is the anchor organization for the

Low Wage Workers Legal Network, a national network

of 1,246 legal advocates from 235 non-profit firms and

seventy-five private firms working in forty-one states,

the District of Columbia, Mexico and Puerto Rico.

5. The California Rural Legal Assistance Foundation (CRLA Foundation) is a legal nonprofit that

represents farmworkers and other low-wage workers in

class and representative actions in federal and state

3

court. For over 40 years, CRLA Foundation has recovered wages and other compensation for thousands of

farmworkers, both domestic U.S. workers and H–2A

workers. These workers have been subjected to illegal

tactics intended to defraud them of minimum wages,

contract wages, and overtime wages due to them.

6. Justice in Motion is a mission-driven national

nonprofit organization that advocates for the rights of

low-wage migrant workers from Mexico and Central

America who work in the United States with H–2A

visas and who rely on the Department of Labor to

enforce the labor laws that protect them. Justice in

Motion is dedicated to ensuring that migrants are

treated fairly and have equal access to justice across

borders by providing lawyers in the United States and

human rights defenders in Mexico and Central America with advice, referral, and case facilitation services.

The fact that temporary foreign workers such as H–2A

workers cross borders by the design of the program

makes them particularly vulnerable to abuse, while

simultaneously making it difficult for them to exercise

their basic employment rights once they return home

at the end of the season, as is required by the visa

program. Because of our work on behalf of migrant

workers, we know that the Department of Labor’s

efforts to adjudicate proceedings and collect monetary

remedies from employers who violate the terms and

conditions of these workers is of the utmost importance to ensure that laws are upheld.

Summary of Argument

The U.S. Court of Appeals for the Third Circuit

erred in concluding that the U.S. Department of

Labor’s (DOL) enforcement proceedings under 8

U.S.C. § 1188 are most analogous to a 1789 contract

action, and therefore require first-level Article III

4

adjudication. DOL’s enforcement actions involve a

different legal relation, one between a grantor of right

and a grantee. In 1789 Great Britain, the power to

enforce those relationships lay outside the common-law

courts, resting instead with the royal prerogative. Thus

the public-rights doctrine applies, as DOL’s enforcement proceedings are the kind of matter traditionally

reserved to the legislative and executive powers. And

that means DOL’s administrative-enforcement regime

does not violate Article III.

Amici are aware of and in the alternative strongly

endorse separate arguments advanced by DOL and in

amicus arguments of Public Citizen et al. and the AFLCIO et al. In particular, amici strongly support the

position that the regulatory scheme for the H–2A

temporary foreign worker program appropriately requires employers seeking to participate in that program

to waive any rights such employers might seek to assert

to initial adjudication by an Article III court of the

assurances employers make to DOL as to the terms and

conditions of employment that will be offered to

temporary foreign workers and U.S. workers in corresponding employment. We do not address those

arguments here, and amici rely upon the arguments on

those issues by other amici and DOL.

Amici also recognize and advocate for the independent right of aggrieved workers to enforce their contractual and statutory rights in appropriate state or

federal courts.2 However, that is not the issue before this

Court.

2

For example, 42 U.S.C. § 1981 protects the right of all persons

to make and enforce contracts within the United States.

5

Argument

A. Relevant Legal Frameworks and Case History

Congress created the H–2 visa program when it

passed the Immigration and Nationality Act of 1952.

Pub. L. No. 82–414, 66 Stat. 163. It split the program

in two when it passed the Immigration Reform and

Control Act of 1986 (IRCA), establishing the H–2A

and H–2B visa programs. See Pub. L. No. 99–603,

§ 301(a), 100 Stat. 3359, 3411. The H–2A program

permits qualifying employers to temporarily “import”

nonresident alien workers into the United States to

perform agricultural labor or services. 8 U.S.C.

§§ 1101(a)(15)(H)(ii)(a); 1184(c); 1188.

An employer must petition the United States

Attorney General for permission to participate in the

H–2A program. 8 U.S.C. § 1184(c). And the Attorney

General may not grant the petition if DOL has not

issued the employer a “labor certification.” 8 U.S.C.

§ 1188(a), (c)(3).

Congress authorized DOL to create “criteria” for

granting the required labor certification, to establish

its associated housing-benefit requirements, and to

determine by “notice and opportunity for a hearing”

whether an employer had “substantially violated a

material term or condition of the labor certification

with respect to the employment of domestic or nonimmigrant workers.” 8 U.S.C. § 1188(b)(2), (c)(3)(A)(i),

(c)(4). Congress also prohibited DOL from issuing a

new certification to an employer that substantially

violated a labor certification’s terms and conditions

over the prior two years. 8 U.S.C. § 1188(b)(2). Last,

Congress authorized the Secretary of Labor “to take

such actions, including imposing appropriate penalties

and seeking appropriate injunctive relief and specific

performance of contractual obligations, as may be

6

necessary to assure employer compliance with terms

and conditions of employment under this section.” 8

U.S.C. § 1188(g)(2).

DOL has delegated the responsibility for approving labor certifications to its Office of Foreign

Labor Certification (OFLC). 20 C.F.R. § 655.101(a).

To obtain one, an employer must first submit to OFLC

“a completed job order, * * * including all required

addenda.” 20 C.F.R. § 655.121(a)(1). A “job order” is a

“document containing the material terms and conditions of employment” offered by the employer, 29

C.F.R. § 501.3(a), and it must include pay rates, hours,

duration, no-cost housing benefits, meal benefits,

transportation benefits, and a work guarantee (at least

¾ of promised work), 20 C.F.R. §§ 653.501(c);

655.121(a)(4); 655.122. Those terms and conditions

must also comport with the minimum protections

required by § 1188 and its implementing regulations.

20 C.F.R. § 655.122(q). The regulations refer to the job

order’s terms and conditions “relating to wages, hours,

working conditions, and other benefits, including those

required by” statute and regulation, as a “work contract.” 20 C.F.R. § 655.103.

DOL requires employers to submit job orders by

completing Forms ETA-790 and 790A. 20 C.F.R.

§ 655.121(a)(1). And to complete Form ETA-790A, an

employer must swear on penalty of perjury to meet the

program’s statutory and regulatory minimums for

wages, hours, duration, and benefits, as well as the

terms and conditions of the job order. DOL, Form

ETA-790A at 4–8 (using job order and clearance order

interchangeably).

Next the employer may apply for the certification

itself, by submitting to OFLC an H–2A Application

for Temporary Employment Certification. 20 C.F.R.

§ 655.130; DOL, Form ETA-9142A. The employer’s

7

Forms ETA-790 and 790A must accompany this

submission, 20 C.F.R. § 655.130(a)(1), and the employer must again swear on penalty of perjury to

comply with the job order’s terms and conditions, and

to comply with all federal, state, and local laws and

regulations, see DOL, Form ETA-9142A § F; DOL,

Form ETA-9142A – Appendix A § B; 20 C.F.R.

§ 655.1305. OFLC may then deny the certification,

grant it, or grant it in part. 20 C.F.R. § 655.160–.162.

DOL has delegated its “investigatory and enforcement functions” under the H–2A program to its Wage

and Hour Division (Wage Hour). 20 C.F.R.

§ 655.101(b). If Wage Hour’s Administrator “believes”

an employer violated § 1188 or its regulations, she may

issue a written notice of determination against them.

The order may assess a civil monetary penalty, increase a surety bond, administratively enforce “contractual obligations,” or administratively enforce

statutory and regulatory “obligations.” 29 C.F.R.

§§ 501.31, .32. It specifies that the Administrator’s

enforcement order may include “the recovery of * * *

monetary relief.” 29 C.F.R. §§ 501.31.

An employer that receives a determination notice

may request an administrative hearing, 29 C.F.R.

§ 501.33, wherein the Administrator acts as plaintiff

and the employer as respondent, 29 C.F.R. § 501.36.

An administrative law judge next hears the case and

issues a decision. 29 C.F.R. §§ 501.37(a), .40. Any

party may petition the Administrative Review Board

(ARB) to review that ALJ decision. 29 C.F.R.

§ 501.41. If the ARB declines review, the ALJ’s decision becomes final agency action. 29 C.F.R.

§ 501.42(a). If it accepts review, it must issue a decision, and that becomes final agency action. 29 C.F.R.

§ 501.45. Whichever path, parties may challenge the

administrative action—“after the administrative

8

remedies have been exhausted”—by filing a complaint

in federal district court. 29 C.F.R. § 501.47.

In this case, the Administrator issued a determination notice to Sun Valley Orchards, LLC, an H–2A

employer. Pet. App. 183a. It ordered Sun Valley to

remit civil penalties and unpaid wages to DOL.3 Id. at

184a. An ALJ heard the case and largely affirmed the

order. Id. at 179a. The ARB affirmed. Id. at 76a.

Employer challenged the final order in the U.S. District Court for the District of New Jersey, which

granted DOL’s motion to dismiss. Id. at 20a–21a, 45a.

The U.S. Court of Appeals for the Third Circuit reversed, holding that “Article III required” DOL to

enforce promises contained in labor certifications by

suit in federal district court first—its administrative

proceedings did not suffice. Id. at 19a. The Third

Circuit reasoned that DOL’s enforcement actions

under § 1188 were most like a contract action at

common law, and thus did not come within the publicrights exception to Article III adjudication. Id. at 10a–

13a.

B. DOL’s labor-certification enforcement actions come

within the public-rights doctrine, because they are

more like the enforcement of a grant of right than a

contract.

1. In SEC v. Jarkesy, this Court reminded that

“matters concerning private rights may not be removed from Article III courts.” 603 U.S. 109, 127

(2024). Matters concerning “public rights,” by contrast, do not require an Article III court’s involvement

“in the initial adjudication.” Id. at 128. A “hallmark”

of a private-rights matter is that it “is made of the

3

The unpaid wages arose from improper meal deductions and

Sun Valley’s violation of the three-fourths work guarantee.

Pet. App. 189a, 192a.

9

stuff of the traditional actions at common law tried by

the courts at Westminster in 1789.” Id. (quoting Stern

v. Marshall, 564 U.S. 462, 484 (2011)) (cleaned up).

This Court has evaluated the public-rights doctrine “with care,” as “[t]his is an ‘area of frequently

arcane distinctions and confusing precedents.’”

Jarkesy, 603 U.S. at 130–31 (quoting Thomas v. Union

Carbide Agric. Prods. Co., 473 U.S. 568, 583 (1985)).

Indeed, “[t]his Court has not ‘definitively explained’

the distinction between public and private rights.” Oil

States Energy Servs., LLC v. Greene’s Energy Grp.,

LLC, 584 U.S. 325, 334 (2018) (quoting N. Pipeline

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69

(1982) (plurality)); see Jarkesy, 603 U.S. at 131 (“and

we do not claim to do so today”).

This Court has explained, however, that the

public-rights exception applies to cases that “historically could have been determined exclusively by the

executive and legislative branches, even when they

were presented in such form that the judicial power

was capable of acting on them.” Jarkesy, 603 U.S. at

128 (quoting first Stern, 564 U.S. at 485, then

Murray’s Lessee v. Hoboken Land & Improvement Co.,

59 U.S. (18 How.) 272, 284 (1855)) (cleaned up). It has

also identified certain “historic categories” that come

within the public-rights exception, including “patent

rights,” “the granting of public benefits,” and “immigration.” Id. at 129–30.

2. An H–2A labor certification contains an employer’s promises to its potential H–2A employees, to

be sure, by its inclusion of the job order. Someone’s

acceptance of the offered terms would create a private

employment contract governed by them. Rivera v. Peri

& Sons Farms, Inc., 735 F.3d 892, 900 (9th Cir. 2013);

Frederick Cty. Fruit Growers Ass’n, Inc. v. Martin, 968

F.2d 1265, 1268 (D.C. Cir. 1992). But the Third Cir-

10

cuit’s suggestion that these employer–employee promises make DOL’s certification enforcement analogous

to a 1789 contract action is a step too far. In fact, the

legal relations produced by the H–2A program are

fundamentally different than the one created between

two private, contracting subjects in 1789 Great

Britain.

First, DOL’s H–2A regulatory criteria require

contract provisions that employers might not otherwise offer. U.S. workers rarely receive full, no-cost

housing and commuting benefits, for instance. The

three-fourths work guarantee is also an unusual provision, as U.S. employment contracts are generally at

will. See, e.g., Claude D. Rohwer, Terminable-at-Will

Employment: New Theories for Job Security, 15 P. L.

R. 759, 760–62 (1984) (discussing historical development of U.S. employment relationship).4

Second, in 1789, “employment contracts” did not

yet exist, at least not in the way we understand them

now. “Even in the time of Blackstone, status dictated

the parameters of the employment relationship,” not

contract. Rohwer, supra, at 761. The modern free-contract relation between employer and employee did not

develop until the late 19th century. Id.

Third, the terms and conditions of an H–2A job

order are not necessarily the terms of a particular

employment contract arising from it. DOL’s regulations and the job orders they require set floors, not

ceilings. See 20 C.F.R. § 655.122(a), (c), (“minimum”).

Indeed, the regulations contemplate circumstances

where an H–2A employer and employee create “a

separate, written work contract,” requiring only that it

match the “minimum” terms of the job order and

federal law. 20 C.F.R. § 655.122(q).

4

These provisions also reflect the needs and demands of

agricultural work.

11

Fourth, neither § 1188 nor its regulations explicitly

give H–2A workers a private right of action to enforce

the labor certification, irrespective of whatever state

contract claims they may have. Instead, Congress left

labor-certification enforcement to DOL, instructing it

“to assure employer compliance with terms and conditions of employment under this section.” 8 U.S.C.

§ 1188(g)(2). The regulations governing administrative

proceedings bear this out. The Administrator’s notice

of determination orders remittance of both civil penalties and unpaid wages to DOL. Pet. App. 184a. And the

Administrator, not injured workers, acts as plaintiff in

subsequent administrative adjudications. This shows a

fundamental difference between a 1789 contract claim

and DOL’s enforcement action: the former involves

private parties enforcing private promises, whereas the

latter, by its special nature, requires government action

—public action—to ensure promises go filled.

Last, and most fundamentally, an employer may

not import or employ unauthorized aliens in the

United States without violating federal law. See, e.g., 8

U.S.C. §§ 1324, 1324a. Thus two private parties could

not privately establish the legal relationships that arise

from H–2A employment.

These observations reveal a different legal relation

at play in certification enforcement proceedings than

mere contract. Instead of a private agreement between

private parties, DOL’s labor certification is a special

governmental grant of right, exchanged on the employer’s promise to follow the job order and the law.

Compare Pet. Br. 30, 32 (describing H–2A program as

“government-granted privilege”). Today we might call

this a kind of license: “A privilege granted by a

state * * * upon the payment of a fee, the recipient of

the privilege then being authorized to do some

act * * * that would otherwise be impermissible.”

12

License, B  ’ L D   (12th ed. 2024);

see 8 U.S.C. § 1188(a)(2) (Secretary of Labor may

require fee to recover certification processing costs).

But in Great Britain in 1789, this arrangement was

known as a “letters patent,” i.e., a “grant[] of the

king.” 2 R  B  J B, A N L

D  : I  G U , 



  G    P  75

(1792) (“letters patent”). “These grants, whether of

lands, honours, liberties, franchises, or any thing

besides, are contained in charters or letters patent; that

is, open letters, literae patentes; so called, because they

are not sealed up, but exposed to open view.” Id. at 75–

76 (first emphasis added); Ramon A. Klitzke, Historical Background of the English Patent Law, 41 J. P.

O. S’ 615, 616 (1959) (describing letters patent

as “a personal and direct grant of some dignity, office,

monopoly, franchise, or other privilege by the English

sovereign through the exercise of the royal

prerogative”).

3. In 1789, the High Court of Chancery held both

an equitable and legal jurisdiction. See 3 S  W



B  , C    L



E  47 (1768). Chancery’s legal arm, “called

‘The Petty Bag,’” United States v. Am. Bell Tel. Co., 32

F. 591, 604–05 (Cir. Ct. Mass. 1887); see In re Nagao, 4

Alaska 678, 684 (D. Alaska 1913), had many responsibilities, including the issuance of original writs needed

to begin a common-law proceeding, see 3 B  

47–49; 1 N W , A  D  

  E  L (1828) (“chancery” at

folio 34); Thomas O. Main, ADR: The New Equity, 74

U . C . L. R. 329, 346–50 (2005) (Chancery’s

issuance of originating writs flowed from royal prerogative). It also held jurisdiction “to hold plea upon a

scire facias to repeal and cancel the king’s letters

13

patent, when made against law, or upon untrue suggestions.” 3 B   47. In addition, the Petty Bag

could forfeit letters patent when the rightsholder

exceeded the terms and conditions of the grant. See 2

M

B, A N

A   

L 458 (1st ed. 1736) (discussing forfeiture of right

to hold fair or market after exceeding terms of grant).

When those conditions included a bond or recognizance, it appears Chancery could adjudge the security

forfeit too. 1 W.S. H  , A H  

E  L 452 (1923); see Stephen D. Billington &

Joe Lane, Procuring Promising Provisions: the British

Patent System and the Navy Proviso, 1794–1831, 30

E. R. E. H . 79, 83–85 (2026) (case study

of patent secured by bond). Responsibility for collection of that new debt would have then transferred to

the Court of Exchequer’s equitable side. See 3 B   44–45 (Exchequer’s “primary and original

business” “is to call the king’s debtors to account by

bill filed by the attorney general”).

Although this power over grants sometimes expressed itself in Chancery, it ultimately eminanted

from the King’s royal prerogative. See United States v.

Palmer, 128 U.S. 262, 271 (1888) (letters patent issued

in England “as a matter of grace and favor” of the

King); United States v. Am. Bell Tel. Co., 128 U.S. 315,

360–62 (1888); Rhode Island v. Massachusetts, 37 U.S.

(12 Pet.) 657, 739–40 (1838). Thus scire facias “was

not the only way to revoke a patent.” Mark A. Lemley,

Why Do Juries Decide If Patents Are Valid?, 99 V. L.

R. 1673, 1683 (2013). The King concurrently maintained the revocation power in his Privy Council until

1847, and that non-Chancery method “was the primary means for revoking patents until as late as 1753.”

Lemley, supra, at 1682. As the House of Lords (Great

Britain’s court of last resort in 1789) explained, “the

14

King has an undoubted Right to repeal a Patent

wherein he is deceived or his Subjects prejudiced.” R v.

Butler (1685) 83 Eng. Rep. 659, 660; 3 Lev. 220, 220.

This Court has also held that federal courts do not

possess Chancery’s prerogative powers. “There can be

no doubt,” this Court warned, “that decisions have

been made in this country * * * without carefully

discriminating whether they resulted from the ordinary exercise of chancery powers, or the prerogatives

of the crown.” Fontain v. Ravenel, 58 U.S. (17 How.)

369, 384 (1854).

The courts of the United States cannot

exercise any equity powers, except those conferred by acts of congress, and those judicial

powers which the high court of chancery in

England, acting under its judicial capacity as a

court of equity, possessed and exercised, at the

time of the formation of the constitution of the

United States. Powers not judicial, exercised by

the chancellor merely as the representative of

the sovereign, and by virtue of the king’s

prerogative as parens patriae, are not possessed

by the circuit courts.

Id.

This statement of law accords with the publicrights doctrine, which this Court first described as

applying to matters “which may be presented in such

form that the judicial power is capable of acting on

them, and which are susceptible of judicial determination, but which congress may or may not bring within

the cognizance of the courts of the United States, as it

may deem proper.” Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272, 284 (1855).

Whereas a “private right” is the “liability of one

individual to another under the law,” “public rights”

cases “arise between the government and persons

15

subject to its authority in connection with the performance of the constitutional functions of the executive

or legislative departments.” Crowell v. Benson, 285 U.S.

22, 50–51 (1932). “Such matters historically could have

been determined exclusively by the executive and

legislative branches.” Jarkesy, 603 U.S. at 128 (quoting

Stern v. Marshall, 564 U.S. 462, 493 (2011)) (cleaned

up).

Thus in 1789, grants of right issued from the King

or Chancery, each acting through the royal prerogative.

Those grants included permissions to engage in otherwise unlawful acts. That is the appropriate analogue

for the legal relation between the United States and an

H–2A employer: one of grantor and grantee. The H–

2A employer makes promises to the United States, and

in return, the United States grants the employer the

right to employ foreign workers, a right it could not

otherwise enjoy. And that relation is what the United

States administratively enforces through proceedings

under § 1188(g)(2) and its implementing regulations—

not a contractual relation between H–2A employer and

H–2A worker.

Section 1188 enforcement proceedings are therefore

well ensconced within the public-rights exception.

Chancery and the Privy Council traditionally administered and enforced grants of right, not Westminster’s

legal courts. They are the kind of action that the

executive and legislative branches could undertake

without resort to the judicial power, 5 and of the sort

this Court has found outside the judicial power,

Fontain, 58 U.S. at 384. As a grant of right is the better

5

Because Great Britain did not have an independent judiciary

in 1789—its high court was a legislative body, and permission

to institute a lawsuit flowed from the King’s royal prerogative,

see supra—this executive–legislative–judicial distinction can

crumple on close historical comparison to U.S. constitutional

norms. But in this case, the distinction is clear.

16

traditional analogue, the public-rights doctrine should

apply.

4. The Third Circuit erred by writing the United

States out of the dispute, suggesting it merely stood in

the shoes of harmed workers in H–2A enforcement

proceedings. That perspective ignores this Court’s

precedents. The United States possesses an independent and distinct interest in enforcing the assurances H

–2A employers must make before receiving the right to

employ foreign agricultural workers on a temporary

basis.

Discussing scire facias in Mowry v. Whitney, this

Court noted, “The reasons for requiring official authority for such a proceeding,” rather than allowing

private parties to bring them, “are obvious.” 81 U.S.

(14 Wall.) 434, 441 (1871). First, any “fraud” would

have been “practiced on the government, and as the

party injured, it is the appropriate party to assert the

remedy or seek relief.” Id. Second, “a suit by an individual could only be conclusive in result as between the

patentee and the party suing, and it would remain a

valid instrument as to all others.” Id. And third, a

patentee would otherwise face “innumerable vexatious

suits to set aside his patent, since a decree in his favor

in one suit would be no bar to a suit by another party.”

Id.

DOL’s labor-certification enforcement proceedings

are on all fours with Mowry. First, an H–2A employer

defrauds and harms the United States when it violates

the promises, assurances, and obligations it made in its

labor-certification application. Those promises reflect

public policy, not just contract terms, and they exist to

ensure an even playing field between U.S. and foreign

agricultural workers. See, e.g., Barton v. U.S. Dep’t of

Labor, 757 F. Supp. 3d 766, 773 (E.D. Ky. 2024)

(“DOL regulates the H–2A program to ensure that

17

American workers are not adversely affected by the

issuance of H–2A visas to foreign workers and it performs this duty through various methods.”); Mendoza

v. Perez, 754 F.3d 1002, 1008 (D.C. Cir. 2014). Second

(and third), only a suit by DOL can address certification violations that impact all workers subject to it—

including through certification revocation, see infra—

and only DOL can impose civil penalties for those

violations. Individual contract actions would require

serial (and likely cross-jurisdictional) litigation, and

they lack the civil-penalty mechanism to encourage

future compliance.

These “obvious reasons” favoring a governmentbrought suit also show why DOL’s enforcement proceedings are not analogous to a matter of private

rights. They do not involve the “liability of one individual to another under the law.” Crowell, 285 U.S. at

50. Instead, they involve an H–2A employer’s failure to

comply with the conditions of its labor certification,

i.e., its special grant of permission to hire and employ

foreign workers in the United States. These enforcement proceedings thus involve an employer’s broken

promises to the federal government, not promises

between individuals.

5. In determining whether an action is legal in

nature, this Court considers both “the cause of action

and the remedy it provides.” Jarkesy, 603 U.S. at 123.

Because “some causes of action sound in both law in

equity,” the remedy can be “the ‘more important’ consideration.” Id. at 123 (quoting Granfinanciera, S.A. v.

Nordberg, 492 U.S. 33, 42 (1989)). It should not be the

most important consideration in this case, however,

because Chancery and the Privy Council undoubtedly

had a jealous jurisdiction over issuing and enforcing

the Crown’s special grants of right. The problem this

Court has confronted before—that fraud, see Granfi-

18

nanciera, 492 U.S. at 43; Jarkesy, 603 at 134 (explaining “Granfinanciera effectively decides this case”),

and public nuisance, Tull v. United States, 481 U.S.

412, 423–24 (1987), have both legal and equitable

causes of action—does not exist in this case. 6 Because

the public-rights exception applies to DOL’s cause of

action, the Court need go no further. See N. Pipeline

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50

(1982) (plurality) (“But when Congress creates a

statutory right, it clearly has the discretion, in defining

that right, to * * * prescribe remedies * * * *”).

And yet the remedies available to DOL through its

enforcement proceedings are analogous to those available in 1789 when a rightsholder violated its grant’s

terms. Just as the King could revoke a letters patent as

a matter of royal prerogative, see Lemley, supra, at

1680–84, so too may DOL revoke an approved labor

certification, 20 C.F.R. § 655.1317. True, this case does

not (yet) involve a revocation. Respondent challenges

a § 1188 enforcement order to remit unpaid wages and

civil monetary penalties to DOL, Pet. App. 183a–184a,

and certification revocations require a separate proceeding, 20 C.F.R. § 655.1317(b). But the two actions

are nestled together. OFLC may revoke a certification

only when it finds that the employer has done certain

things, like (1) making a willful misrepresentation in

its application; (2) willfully violating a material term

or condition of the certification; (3) not curing a

substantial housing-standards violation; and (4) failing

to comply with administrative or court orders “secured * * * under” § 1188. See 20 C.F.R. § 655.1317(a).

All four findings may arise from, or receive a hearing

6

This Court’s decision in Curtis v. Loether, which originated the

“[m]ore important” language about “relief sought,” involved

an unquestioned legal action (tort) and remedy (damages).

415 U.S. 189, 195–96 (1974).

19

in, a § 1188 proceeding, compare 29 C.F.R. § 501.16(a)

(1), and the Wage Hour Administrator “may recommend” revocation to OFLC on the basis of its investigations and enforcement actions, 29 C.F.R. § 501.20(i).

Thus these provisions act in tandem, with the § 1188

proceeding serving as predicate to a revocation proceeding. Cross-referenced and intertwined, this Court

should view them together.

In addition, a scire facias action in 1789 could hold

forfeit any security attached to the challenged grant of

right. The H–2A employer’s required “assurances and

obligations” function similarly. 20 C.F.R. § 655.135.

The potential for civil penalties, the promise to abide

the approved contractual minimums, and the promise

to follow the law and regulations, each acts as a bond

“securing the[] performance” of the petitioning H–2A

employer, so that it will operate in the narrow way

Congress intended. See 1 H   452. Determining that an employer owes penalties or unpaid

wages, then, is the same kind of determination that

Chancery would make about a recognizance’s forfeiture. Also similar is the ultimate enforcement mechanism: if an employer does not pay the amounts ordered

by the agency in 180 days, despite lawful orders requiring it, then DOL submits the debt to the United

States Department of the Treasury for legal enforcement. See 31 U.S.C. § 3711(g)(1). Treasury has thus

taken a similar function to the Court of Exchequer in

1789, which also collected the Crown’s unpaid debts.

6. By selecting a letters-patent mechanism to

regulate employment-based migration into the United

States, Congress walked in medieval England’s footsteps. As early as the fourteenth century, English

sovereigns issued letters patent “to induce skilled

artisans to come to England.” Klitzke, supra, at 623–

24. They “were like passports,” permitting foreign

20

nationals “to come to England and practice their

trade.” Id. at 624. These grants allowed what “the

common right” “clearly” prohibited. Id. at 625. They

also carried terms and conditions, like requiring the

rightsholder to “train Englishmen” in their specialty

production. Adam Mossoff, Rethinking the Development

of Patents: An Intellectual History, 1550–1800, 52

H   L. R. 1255, 1260–61 (2001); Klitzke,

supra, at 639–44 (discussing various consideration that

attached to immigrant-employment letters patent

during Elizabethan era). They had “nothing to do with

legal rights * * * per se, but rather * * * represented

royal privileges that supported royal policies.”

Mossoff, supra, at 1261.

So too for DOL’s labor certifications. The labor

certification exists to permit employers to temporarily

employ a narrow class of otherwise unavailable

workers, with regulations emphasizing protections for

the domestic labor market. See N.C. Growers’ Ass’n,

Inc., v. United Farm Workers, 702 F.3d 755, 759 (4th

Cir. 2012). The letters patent permitting foreign

nationals to migrate to and conduct business in medieval England did the same thing. DOL also issues

certifications to employers in exchange for their adherence to legally mandated terms and conditions, i.e.,

“assurances and obligations,” that advance its policy

goals—just like the terms and conditions of letters

patent helped English monarchs develop local industry. Thus a grant of right is not just the better

analogue for the cause of action and remedies available

to DOL under § 1188; it is also the better historical

analogue for the H–2A program itself.

❦

❦

❦

DOL’s § 1188 enforcement actions are most analogous to those enforcing the terms of letters patent in

21

1789. DOL’s available remedies also track those available to the Crown for addressing violations of a grant’s

terms. Chancery’s Petty Bag had jurisdiction over

such actions, but the King more commonly addressed

them through his Privy Council; both ultimately

acting by royal prerogative. DOL’s § 1188 enforcement

actions are thus not of the stuff heard at Westminster

Hall in 1789. They are not private matters involving

individual-to-individual claims. They are instead

public-rights matters, and as such, adjudication of

them need not begin in an Article III court.

Conclusion

Based on the foregoing, we respectfully urge this

Court to vacate the Third Circuit’s decision and

remand for further proceedings.

Respectfully Submitted,

J M 

Counsel of Record

E  C

Attorneys for Amici Curiae

J 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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