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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v.
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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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300 Cadman Plaza West
12th Floor
Brooklyn, NY 11201
212.231.2235
jmirer@julienmirer.com
Counsel of Record
Assistant Professor
of Law
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80 New Scotland Ave.
Albany, NY 12208
518.445.2311
echev@albanylaw.edu
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
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