Mendoza v. Perez
District of Columbia Circuit
754 F.3d 1002 (2014)
Under the H-2A visa program, employers can hire foreign workers for temporary agricultural work if the Department of Labor (DOL) certifies that not enough qualified U.S. workers are available and that hiring foreign workers won't hurt U.S. workers' wages or conditions. In 2011, DOL issued two guidance letters (TEGLs) creating special certification procedures for cattle, sheep, and goat herding operations, setting different (lower) wage and housing standards than the existing regulations — without using notice-and-comment rulemaking. Reymundo Mendoza and other foreign herders (plaintiffs) sued DOL (defendant), arguing the TEGLs were substantive rules requiring notice and comment under the Administrative Procedure Act (APA). DOL argued the TEGLs were exempt procedural rules. The district court dismissed the herders' suit.
Whether the Administrative Procedure Act requires an agency's substantive rulemaking, but not its procedural rulemaking, to go through notice-and-comment.