CA4 on H-2A Regulatory Whiplash: North Carolina Growers' Association, Inc. v. Solis

"This appeal involves a regulatory action by the Department of Labor (the Department), which suspended various regulations for temporary agricultural workers and reinstated other prior regulations.  We primarily consider: (1) whether the Department’s action constituted "rule making" under the Administrative Procedure Act (the APA), 5 U.S.C. §§ 553, and 701 through 706; and (2) if the action was "rule making," whether the Department satisfied the APA’s "notice and comment" requirements.  We conclude that the district court correctly determined that the Department: (1) engaged in "rule making" when reinstating the prior regulations; and (2) failed to comply with the notice and comment procedures mandated by the APA.  We also conclude that the Department did not invoke the "good cause exception" provided by the APA to excuse its failure to comply with these notice and comment requirements.  Accordingly, we hold that the district court did not err in invalidating the Department’s action on the ground that it was arbitrary and capricious." - North Carolina Growers' Association, Inc. v. Solis, Dec. 21, 2012.