Washington shut down for the weekend, but the administrative process never sleeps. Prime from last week, the United States Supreme Court (SCOTUS) decided to hear a mishmash of immigration executive action questions, but may not decide them, while the United States Court of Appeals for the District of Columbia decided not to stay the Administration’s most ambitious Clean Power Plan. To prove that a blizzard is no match for a court, the United States District Court for the District of Columbia extended its stay of vacatur of a rule. The Department of Labor (DOL) released the most significant administrative action with a mere guidance document – but one fraught with litigation potential.
Image may be NSFW.
Clik here to view.
SCOTUS Takes on Immigration Executive Action: Not surprisingly, SCOTUS granted the Solicitor General’s petition for certiorari in United States v. Texas, but surprisingly left intact the questions presented by the government:
- Whether a State that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA), …, to challenge the [Department of Homeland Security (DHS)] Guidance because it will lead to more aliens having deferred action.
- Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law.
- Whether the Guidance was subject to the APA’s notice-and-comment procedures.
Moreover, SCOTUS directed, “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Guidance violates the Take Care Clause of the [United States] Constitution, Art. II, §3.’” No court below reached that issue.
Bear in mind always what the United States Court of Appeals for the Fifth Circuit decided – the decision that is under review:
Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for a[ preliminary] injunction.
► The parties have already freighted the argument with political motives, and, unfortunately, SCOTUS has not hemmed them to the issues litigated. Unburdening the first question of the novel idea that State laws that existed at the time of federal action create “voluntary” results, the Solicitor General is posing the standing question. The Solicitor General’s second and third questions are merely in reverse order, the third itself being a backhanded way of asking whether the APA required the Administration to promulgate a rule. No court ever reached SCOTUS additional question from Texas’ response and begs for a “political question” answer. When SCOTUS analyzes the issues in detail, the record below, the constitutional avoidance doctrine, and other well-established doctrinal restrictions are likely to leave most of these questions unanswered. As with any politically freighted and motivated litigation, answers to the wrong questions are often illusive.
Clean Power Progresses: The D.C. Circuit denied multiple requests to stay the Environmental Protection Agency (EPA) Clean Power Plan last Thursday. The summary order noted only “Petitioners have not satisfied the stringent requirements for a stay pending court review.” The court ordered the parties to propose a schedule to ensure they conclude briefing by April 22, and set oral argument for June 2, 2016 – and further warned counsel to reserve June 3 in case a full day of argument is insufficient.
► EPA’s Clean Power Plan requires States to file initial plans with EPA in September 2016, and the denial of motions to stay the rule suggest that the court may not have seen the harm of planning to be irreparable harm if, as it did, expedited briefing could permit it to render a decision before the plan must be filed. Fixing the end of a briefing schedule and calendaring oral argument this early may manage at least some of the impact of the extended effective date. Whether this move is pragmatic or just issue avoidance may become clearer when the court decides the substantive issues.
STEM Vacatur Delayed: As noted previously, the United States District Court for the District of Columbia vacated a DHS 2008 interim final rule (IFR) extending the optional practical training (OPT) program for certain alien visa holders in science, technology, engineering, and mathematics (STEM) fields. The district court stayed its vacatur until February 12, but the Department of Justice (DOJ) asked the court for an additional 90 days. On Saturday, in the midst of a blizzard, the court granted the motion and extended the stay of vacatur until May 10, but “it emphasizes that it will not consider any additional requests for relief.”
► Skepticism may be justified. DHS issued its IFR in 2008 and never concluded the regulatory process – starting anew was not required. On the other hand, vacatur has impacts beyond the program itself to a large number of innocent parties. Should the court have imposed vacatur, those parties could only blame DHS, but otherwise would have little recourse.
Joint Employer Guidance: DOL issued new Fair Labor Standards Act (FLSA) guidance on January 20 that will undoubtedly be the source of much litigation: Joint employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act. As DOL explained:
More and more, businesses are varying organizational and staffing models by, for instance, sharing employees or using third-party management companies, independent contractors, staffing agencies, or labor providers. As a result, the traditional employment relationship of one employer employing one employee is less prevalent.
The bottom line is that DOL intends to be more aggressive in pursuing enforcement against employers in what it considers to be “joint” employer relationships:
When two or more employers jointly employ an employee, the employee’s hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculating whether overtime pay is due. Additionally, when joint employment exists, all of the joint employers are jointly and severally liable for compliance with the FLSA ….
As with past guidance, regulatory issues arise whether (1) the guidance must be adopted as a rule (see United States v. Texas, supra), (2) courts should grant the guidance, as interpretation of regulations, presumptive deference under Auer, and (3) any limitation should be place on guidance alteration, i.e. Perez v. Mortgage Bankers Association.
► Employers will need to review DOL’s view carefully, but with the dual cautions that this is only DOL’s view, and that many will attempt to impose that view through private FLSA litigation (and DOL will likely help). Business associations castigated the guidance vociferously, and predicted, rightly, a flood of litigation. One curious complication will revolve on how the guidance might be argued to affect the potential for regulatory preemption of State business association, franchise, limited liability, and corporation law. At bottom, whatever labor policy, neither the FLSA nor the APA were drafted for the issues presented – their statutory dotage is showing.
Programming Vacation: The Federal Regulations Advisor will not publish a Monday Morning Regulatory Review on February 1, 2016, due to planned travel. The February 8 column will cover two weeks, but if something significant happens ….
The post Monday Morning Regulatory Review – 1/25/16: SCOTUS Takes on Immigration Executive Action; Clean Power Progresses; STEM Vacatur Delayed; Joint Employer Guidance; Programming Vacation appeared first on Federal Regulations Advisor.