Wednesday, May 20, 2020: A Procedurally Odd Finale to the Secretary of Labor’s ‘Direct Final Rule’ on The Secretary’s Review of ARB Decisions
On March 6, 2020, the U.S. Department of Labor (DOL) announced that the due date for public comment on (a) DOL’s Direct Final Rule (DFR) and (b) a companion Notice of Proposed Rulemaking (NPRM) implementing appeal rights to the Secretary of Labor from adverse Administrative Review Board (ARB) decisions would be April 6, 2020. Moreover, the Department announced that the DFR (not the NPRM) would become Final and legally effective (absent significant adverse comment) on April 20, 2020.
By its terms, the DFR became effective on April 20, 2020. However, because the Department received significant adverse comments on the DFR, the Department has not exercised, and does not intend to exercise, any authority under the provisions contained in the DFR. The Department thus did not publish, and will not publish in the Federal Register, a document confirming the effective date of the DFR and withdrawing the NPRM. Instead, the Department has now issued a Final Rule to respond to the comments received in response to the NPRM and to go to final with it.
Explaining that after “carefully considering” the comments it received, the Department was now issuing the Final Rule, which, with the exception of the one substantive change to not rely on the DFR and some technical corrections, is identical to the substantive provisions of the NPRM-DFR.
The Final Rule establishes a system to allow The Secretary to exercise his discretion to review cases pending before or decided by the Board of Alien Labor Certification Appeals (BALCA) and the Administrative Review Board (ARB). The Department believes the new Rules will also ensure consistency with Secretary’s Order 01-2020.
This Final Rule will become effective on June 19, 2020.
- BALCA – has authority over appeals from the decisions of the Employment and Training Administration’s adjudication of foreign labor certification applications
- ARB – has authority to hear appeals from the decisions of the Department’s Office of Administrative Law Judges (OALJ) about certain immigration, child labor, employment discrimination, federal construction/service contracts, and other issues, including Sarbanes-Oxley whistleblower appeals.
- The circumstances under which a federal agency may use a “Direct Final Rule,” limiting public notice and opportunity to comment and accelerating the date a DFR may become legally effective, is already legally controversial, although the Department in this attempted Rulemaking argued that its use of the DFR was entirely appropriate and legal. That is true even before you add the element in this Administration that Democrats and what are often called “community organizers” or “public interest groups” routinely oppose almost every Administration proposal in an effort to slow or stop it (the so-called “Full Court Press” Senator Schumer and Representative Pelosi have espoused to resist the Trump Administration). So here, in the final analysis, the Department retreated from its use of the DFR in light of the opposition its proposed use drew. Moreover, the DFR was unnecessary, at any rate, since the Department could (and did) fall back on the use of the NPRM to finalize it. Doing so achieved the same result as the now banished DFR (which sought to accomplish the very same regulatory reform). Dropping its reliance on the DFR also allowed the Department to deprive critics of a possible avenue in the courts to appeal the Department’s reliance on the DFR form of regulatory change).
So, who cares anyway?
This dispute is about only the seemingly ministerial decision of the Secretary of Labor to return to his desk the discretion to make his office the court of last administrative resort within USDOL. This is, after all, his authority to exercise, at any rate. But this contest offers just another window of observation into the daily struggles that each Presidential Administration undergoes to take control of the federal Executive Branch agencies each is charged to lead once the new Administration takes possession of The White House. Having obtained the raw legal authority to act, each Administration then struggles as it attempts to implement the new policy changes the people have voted to usher into the federal government. Each Administration learns that winning the votes is only the first hurdle to implement policy changes: the federal Executive Branch agencies, like OFCCP, OSHA, the Wage & Hour Division, etc., are a second and challenging hurdle to motivate to embrace the new Administration’s policy changes, or to force the agencies to accept. As political science students learn in college and in the real world of politics, federal agencies are entrenched bureaucracies, are their own interest groups, have their own mission, and will work to preserve and keep independent their power.