06/29/09

Court rules on H-2A injunction

As you may know, the North Carolina Growers Association and other grower groups sued the US Department of Labor (USDOL) and Department of Homeland Security (DHS) for an injunction against the “suspension” of the new “Bush” H-2A rules based on violations of the Administrative Procedure Act (APA). The suspension went into effect today, June 29, 2009.

We just got the news that the court ruled today in favor of the plaintiffs (growers) so the “Bush” rules are back in play as of June 29, 2009 at 6 p.m. EDT. The court doesn’t elaborate on the effect of its order; however, the practical effect is to reinstate the Bush regulations. USDOL can appeal and/or engage in new rulemaking to overcome the Administrative Procedure Act defects found by the court in its rulemaking. We will update you as more information on this issue becomes available.

If USDOL and DHS appeal, then the litigation could take considerable time. The most realistic outcome is for USDOL to immediately initiate new rulemaking to correct the procedural deficiencies, which would probably give us at most a few months with the “Bush H-2A Rules”.