Stellar It v. Scalia

• Court: District Court, District of Columbia
• Decided: December 14, 2020
• Docket: Civil Action No. 2020-3175
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PURDUE UNIVERSITY, et al.,

Plaintiffs,

v. Civ. Action No. 20-3006 (EGS)

EUGENE SCALIA, in his official capacity as Secretary, Department of Labor, et al.,

Defendants.

STELLAR IT, INC., et al.,

v. Civ. Action No. 20-3175 (EGS)

EUGENE SCALIA, in his official capacity as Secretary, Department of Labor, et al.,

MEMORANDUM OPINION

Plaintiffs in these consolidated cases are a group of

academic institutions and companies in the healthcare,

immigration, and technology-related sectors that employ foreign

nationals throughout the United States. See Pls.’ Mem. Points

Authorities Supp. Mot. Prelim. Inj. APA Section 705 Stay

(“Purdue Pls.’ Mot.”), ECF No. 6 at 11, Purdue Univ. v. Scalia,

No. 20-cv-3006 (EGS) (Oct. 23, 2020); Pls.’ Mot. Prelim. Inj.

(“Stellar IT Pls.’ Mot.”), ECF No. 7-1 at 34-35, Stellar IT, Inc. v. Scalia, No. 20-cv-3175 (EGS) (Nov. 9, 2020). 1 Plaintiffs

challenge a United States Department of Labor (“DOL” or “the

Department”) interim final rule entitled “Strengthening Wage

Protections for the Temporary and Permanent Employment of

Certain Aliens in the United States,” 85 Fed. Reg. 63,872 (Oct.

8, 2020) (“IFR”). See Purdue Pls.’ Mot., ECF No. 6 at 11-12;

Stellar IT Pls.’ Mot., ECF No. 7-1 at 10-11. The IFR updated the

computation of prevailing wage levels set for certain foreign

labor certification programs “to better reflect the actual wages

earned by U.S. workers similarly employed to foreign workers,”

85 Fed. Reg. at 63,872, thereby increasing the prevailing wage

rates for certain occupations “by as much as forty or fifty

percent,” Stellar IT Pls.’ Reply, ECF No. 11 at 1, Stellar IT,

Inc. v. Scalia, No. 20-cv-3175 (EGS) (Nov. 16, 2020). Plaintiffs

allege that Defendants violated the Administrative Procedure Act

(“APA”) in setting the higher wage rates because the DOL did not

provide advance notice and comment prior to promulgating the

IFR. See Purdue Pls.’ Mot., ECF No. 6 at 11-12; Stellar IT Pls.’

Mot., ECF No. 7 at 10-11.

Pending before the Court are the Purdue Plaintiffs’ motion

for partial summary judgment and Purdue Defendants’ cross-motion

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 for partial summary judgment, as well as the Stellar IT

Plaintiffs’ motion for partial summary judgment and Stellar IT

Defendants’ cross-motion for partial summary judgment. Upon

consideration of the motions, the responses and replies thereto,

the applicable law, the IFR and materials cited therein, and the

entire record, the Court GRANTS the Purdue Plaintiffs’ motion

for partial summary judgment, ECF No. 6, and the Stellar IT

Plaintiffs’ motion for partial summary judgment, ECF No. 7.

I. Background

A. Statutory And Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. §

1101 et seq., allows for U.S. employers to apply for visas for

foreign workers to come to the United States either as

nonimmigrants for temporary employment under the H-1B visa

classification, or as immigrants to work on a permanent basis.

The IFR at issue in this consolidated case “changes the

computations used by the Secretary of Labor to establish the

prevailing wage for many job opportunities for which employers

seek foreign labor certification from” the DOL. Purdue Defs.’

Opp’n & Mot. Summ. J. (“Defs.’ Opp’n”), ECF No. 18 at 9.

1. H-1B Visas: Labor Condition Applications

The H-1B visa program permits employers to temporarily

employ foreign, nonimmigrant workers in specialty occupations.

See 8 U.S.C. § 1101(a)(15)(H). A specialty occupation is defined

3 as an occupation that requires “theoretical and practical

application of a body of highly specialized knowledge” and

“attainment of a bachelor’s or higher degree in a specific

specialty (or its equivalent) as a minimum for entry into the

occupation in the United States.” Id. § 1184(i)(1).

To participate in the H-1B program, employers must complete

a two-step process with respect to each foreign worker they wish

to hire. First, employers must submit to the DOL a Labor

Condition Application (“LCA”) identifying the specialty

occupation position at issue and confirming that they will

comply with the requirements of the program. See 8 U.S.C. §

1182(n)(1); 8 C.F.R. § 214.2(h)(4). In the LCA, the prospective

employer must attest, among other things, that it will pay the

nonimmigrant worker the greater of “the actual wage level paid

by the employer to all other individuals with similar experience

and qualifications for the specific employment in question,” or

“the prevailing wage level for the occupational classification

in the area of employment.” 8 U.S.C. § 1182(n)(1)(A)(i).

The DOL determines the prevailing wage as of the time of

the filing of the LCA. 20 C.F.R. § 655.731(a)(2). However, an

employer may not file an LCA more than six months prior to the

beginning date of the period of intended employment. 20 C.F.R. §

655.730(b). If there is no applicable collective bargaining

agreement “contain[ing] a wage rate applicable to the

4 occupation,” an employer may base the prevailing wage on one of

the following sources: a current wage as determined under the

Davis-Bacon Act or the McNamara-O’Hara Service Contract Act; an

independent authoritative source that satisfies the requirements

in 20 C.F.R. § 655.731(b)(3)(iii)(B); or another legitimate

source of wage data that satisfies the requirements in 20 C.F.R.

§ 655.731(b)(3)(iii)(C). Id. “In the absence of any of these

sources, the [DOL’s] National Prevailing Wage Center (‘NPWC’) (a

component of the Office of Foreign Labor Certification (‘OFLC’))

will derive the appropriate prevailing wage from the Bureau of

Labor Statistics Occupational Employment Statistics (‘OES’)

Survey.” Defs.’ Opp’n, ECF No. 18 at 11. An LCA is valid for the

period of employment stated in the LCA, but in no event longer

than three years. 20 C.F.R. § 655.750(a).

Second, after the DOL certifies the LCA, the employer must

then file an H-1B visa petition with the U.S. Department of

Homeland Security (“DHS”) on behalf of the alien worker, which

shows that the proffered position satisfies the statutory and

regulatory requirements. 8 U.S.C. § 1184(c); 20 C.F.R. §

655.705(b). An approved H-1B petition allows the foreign

national beneficiary to reside in United States and work in the

position identified in the petition. There is a statutory limit

on the number of H-1B visas (cap and cap-exempt) of 65,000 per

year nation-wide, plus an additional 20,000 per year for

5 Masters, PhD and post-graduate-level graduates of U.S.

universities. 8 U.S.C. § 1184(g)(1)(A), (5)(C).

2. Permanent Labor Certifications For EB-2 And EB-3 Visa Workers

The INA also creates a multi-step process for noncitizens

to obtain permanent employment in the United States in certain

professional or skilled occupations. There are five “preference”

categories, or immigrant visa classes, provided in the INA. Two

of the “preference” categories—the second and third categories

(referred to as the EB-2 and EB-3 immigrant visa

classifications)—require a labor certification by the Secretary

of Labor before a prospective employer can apply for a visa with

DHS. See 8 U.S.C. §§ 1153(b)(2)-(3), 1182(a)(5)(A). EB-2

immigration work visas apply to foreign workers who are either

professionals holding advanced degrees (master’s degree or

above) or foreign equivalents of such degrees, or persons of

“exceptional ability” in the sciences, arts, or business. Id. §

1153(b)(2). EB-3 immigration work visas apply to foreign workers

who are either “skilled workers,” “professionals,” or “other”

unskilled workers, as defined by the statute. Id. § 1153(b)(3).

A labor certification reflects the Secretary’s

determination that:

(I) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United

6 States and at the place where the alien is to perform such skilled or unskilled labor, and

(II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. § 1182(a)(5)(A)(i); see also 20 C.F.R. § 656.1(a)(1)-

(2). To receive certification, the employer must also attest,

among other things, that the employer is offering a wage that

equals or exceeds the prevailing wage, and that the employer

will pay the foreign worker a wage equal to or exceeding the

prevailing wage. 20 C.F.R. § 656.10(c)(1). Thus, prior to filing

for a labor certification, the employer must obtain a prevailing

wage determination for its job opportunity. Id. §§ 656.15(b)(1),

656.40(a). If there is no prevailing wage rate derived from an

applicable CBA, the employer may elect to use an applicable wage

determination under the Davis-Bacon Act or McNamara-O’Hara

Service Contract Act, or provide a wage survey that complies

with the DOL’s standards governing employer-provided wage data.

Id. § 656.40(b)(2)-(4). In the absence of any of the above

sources, the NPWC will use the OES Survey to determine the

prevailing wage. Id. § 656.40(b)(2).

Once the Secretary certifies the permanent labor

certification, the employer may then file a visa petition with

DHS on the worker’s behalf. Id. § 656.17(a). The labor

certification must be filed in support of a visa petition within

7 180 calendar days of the date on which DOL granted the

certification. Id. § 656.30(b)(1).

3. The Prevailing Wage Determination

Since 1998, the DOL has used the OES survey data to

calculate prevailing wage rates. See Labor Condition

Applications and Requirements for Employers Using Nonimmigrants

on H-1B Visas in Specialty Occupations and as Fashion Models;

Labor Certification Process for Permanent Employment of Aliens

in the United States, 65 Fed. Reg. 80110, 80198 (Dec. 20, 2000).

In 2004, Congress revised the prevailing wage rate system to

require that DOL, when using or making a governmental survey

available to employers to determine the prevailing wage, include

at least four levels of wages “commensurate with experience,

education, and the level of supervision.” L-1B and H-1B Visa

Reform Act, Public Law No. 108-447, Title IV, Subtitle B, § 423

(Dec. 8, 2004) (8 U.S.C. § 1182(p)(4)). Prior to the issuance of

the IFR in this case, DOL determined the four wage rates based

on the 17th percentile, the 34th percentile, the 50th

percentile, and the 67th percentile, respectively, of the OES

reported wage distribution for each occupation. 85 Fed. Reg. at

63,875.

4. The Interim Final Rule

On October 8, 2020, the DOL published the IFR at issue,

“Strengthening Wage Protections for the Temporary and Permanent

8 Employment of Certain Aliens in the United States,” 85 Fed. Reg.

63,872, without providing advance notice and comment. Defs.’

Opp’n, ECF No. 18 at 15.

In issuing the IFR, the DOL asserted that the prevailing

wage levels “are not advancing the purposes of the INA’s wage

provisions” because, “under the existing wage levels,

artificially low prevailing wages provide an opportunity for

employers to hire and retain foreign workers at wages well below

what their U.S. counterparts . . . make,” which “creat[es] an

incentive—entirely at odds with the statutory scheme—to prefer

foreign workers to U.S. workers, and caus[es] downward pressure

on the wages of the domestic workforce.” 85 Fed. Reg. at 63,877.

Based on this view, the IFR incorporates changes to the

computation of wage levels under the DOL’s four-tiered wage

structure based on the OES wage survey. 85 Fed. Reg. at 63,872.

The IFR upwardly adjusts the first-tier prevailing wage rate

from the 17th percentile of the OES wage distribution to the

45th percentile; the second-tier prevailing wage rate from the

34th to the 62nd percentile; the third-tier prevailing wage rate

from the 50th to the 78th percentile; and the fourth-tier

prevailing wage rate from the 67th to the 95th percentile. Id.

at 63,892-93, 63,905. According to the DOL, “[t]his update will

allow DOL to more effectively ensure that the employment of

immigrant and nonimmigrant workers admitted or otherwise

9 provided status through the above-referenced programs does not

adversely affect the wages and job opportunities of U.S.

workers.” Id. at 63,872.

The IFR took effect the day it was published. Id. The DOL

explained its decision to forego notice and comment procedures

by invoking the “good cause” exception of the APA, id. at

63,898, which provides that an agency may dispense with formal

notice and comment procedures if the agency “for good cause

finds . . . that notice and public procedure thereon are

impracticable, unnecessary, or contrary to the public interest,”

5 U.S.C. § 553(b)(B). The DOL cited two factors to show the

existence of good cause. First, the DOL asserted that “the shock

to the labor market caused by the widespread unemployment

resulting from the coronavirus public health emergency has

created exigent circumstances that threaten immediate harm to

the wages and job prospects of U.S. workers.” 85 Fed. Reg. at

63,898. Because “flaws in the existing wage levels—which were

promulgated through guidance and without meaningful economic

justification, are inconsistent with the statute, and serve as

the source of adverse labor effects on U.S. workers even under

normal economic conditions—can only exacerbate” the “dangers

posed to U.S. workers by recent mass lay-offs,” the DOL asserted

that “[n]otice and comment procedures in these circumstances

would make it impracticable for the Department to fulfill its

10 statutory mandate and carry out the ‘due and required execution

of [its] agency functions’ to protect U.S. workers.” Id. (second

alteration in original). Second, the DOL stated that advance

notice and comment would be contrary to the public interest

because “[a]dvance notice of the intended changes would create

an opportunity, and the incentives to use it, for employers to

attempt to evade the adjusted wage requirements.” Id. The DOL

invited interested persons to submit written comments and

related material by November 9, 2020. Id. at 63,872.

B. Procedural History

This consolidated case arises out of two lawsuits

challenging the lawfulness of the recently issued IFR.

Specifically, the lawsuits challenge Defendants’ failure to

provide advance notice-and-comment rulemaking procedures prior

to promulgation. See Purdue Mot., ECF No. 6 at 11-12; Stellar IT

Mot., ECF No. 7-1 at 24-25.

In Purdue University v. Scalia, No. 20-cv-3006 (D.D.C. Oct.

19, 2020) (EGS), the Purdue Plaintiffs—a group of nine academic

institutions and eight “employers operating in the healthcare,

immigration, or technology-related fields of endeavor”—filed

their lawsuit on October 19, 2020, against Defendants Eugene

Scalia (“Mr. Scalia”), in his official capacity as Secretary of

the DOL; and the DOL. See Purdue Pls.’ Mot., ECF No. 6 at 11. On

October 23, 2020, the Purdue Plaintiffs filed a motion for a

11 preliminary injunction or section 705 APA stay, requesting that

the Court (1) “enjoin[] Defendants from enforcing Department of

Labor Interim Final Regulation: Strengthening Wage Protections

for the Temporary and Permanent Employment of Certain Aliens in

the United States, 85 Fed. Reg. 63872 (October 8, 2020)”; and

(2) “requir[e] Defendants, within 10 business days of the date

of the order, to reissue any prevailing wage determinations that

have been issued pursuant to the IFR.” Purdue Mot., ECF No. 6 at

11. Five days later, the parties in Purdue consented to

consolidating the Purdue Plaintiffs’ motion for a preliminary

injunction with a determination on the merits, pursuant to

Federal Rule of Civil Procedure 65(a)(2), on the claim that the

IFR was improperly issued without advance notice and comment.

See Purdue Joint Status Report, ECF No. 12. The Court

accordingly ordered that the motion be consolidated with the

merits and stayed briefing on the remaining arguments in the

motion for preliminary injunction. See Purdue Min. Order (Oct.

28, 2020). On November 2, 2020, Defendants filed their

opposition to the Purdue Plaintiffs’ motion and cross-motion for

partial summary judgment. See Defs.’ Opp’n, ECF No. 18. The

Purdue Plaintiffs filed their reply and response to Defendants’

cross-motion for partial summary judgment on November 9, 2020.

See Purdue Pls.’ Reply, ECF No. 20.

12 In Stellar IT v. Scalia, No. 20-cv-3175 (D.D.C. Nov. 3,

2020), the Plaintiffs—8 companies that employ H-1B skilled non-

immigrant workers throughout the United States—filed their

lawsuit on November 3, 2020 against Mr. Scalia, in his official

capacity as Secretary of the DOL; and John Pallasch (“Mr.

Pallasch”), in his official capacity as Assistant Secretary of

the DOL. See Stellar IT Compl., ECF No. 1. The Stellar IT

Plaintiffs then moved for a preliminary injunction on November

9, 2020, requesting that the Court enjoin the DOL’s

implementation of the IFR. See Stellar IT Mot., ECF No. 7 at 1.

On November 10, 2020, the parties consented to consolidating the

motion for a preliminary injunction with a determination on the

merits, pursuant to Federal Rule of Civil Procedure 65(a)(2), on

the claim that the IFR was improperly issued without advance

notice and comment. See Stellar IT Joint Status Report, ECF No.

8. The parties also informed the Court that they had conferred

with the plaintiffs in Purdue and that the parties in the Purdue

case and in the Stellar IT case agreed to consolidate the cases

for resolution of the notice-and-comment claim. Id. The Court

accordingly (1) ordered that the Stellar IT Plaintiffs’ motion

be consolidated with the merits, (2) ordered that the Stellar IT

and Purdue cases be consolidated for resolution of the notice-

and-comment claim, and (3) stayed briefing on the remaining

13 arguments in the Stellar IT Plaintiffs’ motion for preliminary

injunction. See Stellar IT Min. Order (Nov. 12, 2020).

Following the Court’s Orders, and as agreed by the parties

in both cases, the Defendants filed a combined reply in support

of its cross-motion for partial summary judgment in Purdue and

response to the Stellar IT Plaintiffs’ motion for preliminary

injunction on November 12, 2020. See Defs.’ Reply & Opp’n

(“Defs.’ Reply”), ECF No. 10, Purdue v. Scalia, No. 20-cv-3006

(D.D.C. Nov. 12, 2020). On November 16, 2020, the Stellar IT

Plaintiffs filed their reply brief. See Stellar IT Pls.’ Reply,

ECF No. 11.

The motions are now ripe for adjudication.

II. Legal Standard

Summary judgment is usually appropriate “if the pleadings,

the discovery and disclosure materials on file, and any

affidavits [or declarations] show that there is no genuine issue

as to any material fact and that the movant is entitled to a

judgment as matter of law.” Air Transp. Ass’n of Am. v. Nat’l

Mediation Bd., 719 F. Supp. 2d 26, 31-32 (D.D.C. 2010)

(alteration in original) (citing Fed. R. Civ. P. 56(c)), aff’d,

663 F.3d 476 (D.C. Cir. 2011). In “a case involving review of a

final agency action under the Administrative Procedure Act, 5

U.S.C. § 706, however, the Court’s role is limited to reviewing

the administrative record, so the standard set forth in Rule

14 56(c) does not apply.” Id. at 32 (citation omitted). In such

cases, summary judgment “serves as the mechanism for deciding,

as a matter of law, whether the agency action is supported by

the administrative record and otherwise consistent with the APA

standard of review.” Cottage Health Sys. v. Sebelius, 631 F.

Supp. 2d 80, 90 (D.D.C. 2009) (citation omitted).

Here, the parties have agreed to waive the filing of the

Administrative Record and instead rely upon the IFR and the

materials cited therein. See Purdue Joint Status Report, ECF No.

12 at 2; Stellar IT Joint Status Report, ECF No. 8 at 2.

Accordingly, the Court shall review the IFR and the materials

cited within the IFR in lieu of the Administrative Record in

deciding the parties’ motions.

III. Analysis

Section 553 of the APA generally requires agencies to

provide notice of a rule thirty days before it becomes effective

and to give the public an opportunity to comment. See 5 U.S.C. §

553(b)-(d). These procedures are designed “(1) to ensure that

agency regulations are tested via exposure to diverse public

comment, (2) to ensure fairness to affected parties, and (3) to

give affected parties an opportunity to develop evidence in the

record to support their objections to the rule and thereby

enhance the quality of judicial review.” Int’l Union, United

Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d

15 1250, 1259 (D.C. Cir. 2005). However, notice-and-comment

procedures may be waived “when the agency for good cause finds

(and incorporates the finding and a brief statement of reasons

therefor in the rules issued) that notice and public procedure

thereon are impracticable, unnecessary, or contrary to the

public interest.” 5 U.S.C. § 553(b)(3)(B).

Because notice-and-comment procedures are vital to ensuring

informed agency decisions, the Court of Appeals for the District

of Columbia Circuit (“D.C. Circuit”) has emphasized that the

“good cause” exception is to be “narrowly construed and only

reluctantly countenanced.” Util. Solid Waste Activities Grp. v.

EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) (quoting Tenn. Gas

Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992)).

“The exception is not an ‘escape clause’; its use ‘should be

limited to emergency situations,’” id. (quoting Am. Fed’n of

Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981)),

or “where delay could result in serious harm,” Jifry v. FAA, 370

F.3d 1174, 1179 (D.C. Cir. 2004) (citation omitted).

Review of an “agency’s legal conclusion of good cause is de

novo.” See Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706

(D.C. Cir. 2014). Courts must “‘examine closely’ both the

circumstances surrounding [the rule] and the . . . stated

rationale for failing to follow notice-and-comment procedures

before issuing” the rule. Council of S. Mountains, Inc. v.

16 Donovan, 653 F.2d 573, 580 (D.C. Cir. 1981). In other words,

“the good-cause inquiry is ‘meticulous and demanding.’”

Sorenson, 755 F.3d at 706 (quoting N.J. Dep’t of Envt’l Prot. v.

EPA, 626 F.2d 1038, 1046 (D.C. Cir. 1980)). Because notice-and-

comment rulemaking is the default, “‘the onus is on the [agency]

to establish that notice and comment’ should not be given,” and

“[a]ny agency faces an uphill battle to meet that burden.” Nat’l

Venture Capital Ass’n v. Duke, 291 F. Supp. 3d 5, 16 (D.D.C.

2017) (first alteration in original) (quoting Action on Smoking

& Health v. Civil Aeronautics Bd., 713 F.2d 795, 801 n.6 (D.C.

Cir. 1983)); see also Capital Area Immigrants’ Rights Coal. v.

Trump, No. 19-2117 (TJK), 2020 WL 3542481, at *12 (D.D.C. June

30, 2020) (“[T]he D.C. Circuit has set a high bar for satisfying

good cause.”).

Defendants assert that the good cause exception applies

here because advance notice-and-comment procedures would have

been impracticable and contrary to the public interest. The

Court disagrees for the reasons set forth below.

A. The DOL Has Not Shown That Providing Advance Notice And Comment Would Be Impracticable

The Court first turns to whether the DOL sufficiently

justified its decision, as detailed in the IFR, that advance

notice-and-comment procedures would have been “impracticable.”

85 Fed. Reg. at 63,898.

17 “[A] situation is ‘impracticable’ when an agency finds

that due and timely execution of its functions would be impeded

by the notice otherwise required in [§ 553].” Util. Solid Waste

Activities Grp., 236 F.3d at 754 (second alteration in original)

(citation omitted). This inquiry “is inevitably fact- or

context-dependent,” Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93

(D.C. Cir. 2012) (quoting Mid–Tex Elec. Coop. v. FERC, 822 F.2d

1123, 1132 (D.C. Cir. 1987)); and “[i]n the past, [the D.C.

Circuit has] approved an agency’s decision to bypass notice and

comment where delay would imminently threaten life or physical

property,” Sorenson, 755 F.3d at 706. Courts in this Circuit

have found notice-and-comment rulemaking impracticable “only in

unusual cases,” including when “air travel security agencies

would be unable to address threats posing ‘a possible imminent

hazard to aircraft, persons, and property within the United

States’”; when “a safety investigation shows that a new safety

rule must be put in place immediately”; or when “a rule was of

‘life-saving importance’ to mine workers in the event of a mine

explosion.” Capital Area Immigrants’ Rights Coal., 2020 WL

3542481, at *12 (quoting Mack Trucks, Inc., 682 F.3d at 93).

The DOL justified its decision to dispense with notice and

comment by asserting that “the shock to the labor market caused

by the widespread unemployment resulting from the coronavirus

public health emergency has created exigent circumstances that

18 threaten immediate harm to the wages and job prospects of U.S.

workers.” 85 Fed. Reg. at 63,898. Although the “INA’s wage

protections are meant to ensure that the employment of foreign

workers does not have an adverse impact on similarly employed

U.S. workers,” the DOL found that “serious fiscal harm would

befall U.S. workers absent immediate action by the Department

because the wage and employment risks, already immense, posed to

workers by recent mass lay-offs are greatly compounded by the

inappropriately low prevailing wage rates.” Id. The DOL

explained that the prior prevailing wage rates allowed employers

to pay certain H-1B workers wages that were lower than the

market rate for similarly employed U.S. workers, which could

lead employers to prefer H-1B workers over U.S. workers and in

turn lead to negative outcomes for U.S. workers. Id. at 63,899.

The DOL concluded that it must take “[i]mmediate corrective

action [to correct the wage rates] to ensure that the

Department’s regulations are, consistent with their purpose,

safeguarding the well-being of U.S. workers.” Id. at 63,900.

“Notice and comment procedures in these circumstances would make

it impracticable for the Department to fulfill its statutory

mandate and carry out the ‘due and required execution of [its]

agency functions’ to protect U.S. workers.” Id. at 63,898

(alteration in original) (citation omitted).

19 The Court finds that the DOL did not appropriately invoke

the good cause exception based upon its stated rationale in the

IFR. First, given the DOL’s more than six month delay in

implementing changes to the prevailing wage calculation, the

Court declines to countenance the agency’s avoidance of notice-

and-comment procedures. Under D.C. Circuit precedent, “[n]otice

and comment can only be avoided in truly exceptional emergency

situations, which notably, cannot arise as a result of the

agency’s own delay.” Wash. All. of Tech. Workers v. U.S. Dep’t

of Homeland Sec., 202 F. Supp. 3d 20, 26 (D.D.C. 2016) (citing

Env’t Def. Fund, Inc. v. EPA, 716 F.2d 915, 920-21 (D.C. Cir.

1983)); see also Env’t Def. Fund, Inc., 716 F.2d at 921 (“[T]he

good cause exception does not apply when an alleged ‘emergency’

arises as the result of an agency’s own delay . . . .”). Courts

in this Circuit have “repeatedly rejected good cause when the

agency delays implementing its decision.” Nat’l Venture Capital

Ass’n, 291 F. Supp. 3d at 16; see, e.g., Air Transp. Ass’n of

Am. v. Dep’t of Transp., 900 F.2d 369, 379 (D.C. Cir. 1990)

(holding that “the FAA is foreclosed from relying on the good

cause exception by its own delay in promulgating the

[challenged] Rules,” where “[t]he agency waited almost nine

months before taking action” and therefore “could have realized

[its] objective short of disregarding its obligations under the

APA”), vacated on other grounds, 498 U.S. 1077 (1991); Nat’l

20 Ass’n of Farmworkers Orgs. v. Marshall, 628 F.2d 604, 622 (D.C.

Cir. 1980) (finding agency had failed to demonstrate good cause

where it “waited nearly seven months between the initial

regulation promulgated through notice and comment and the first

modification of it promulgated without the requisite

procedures”); Env’t Def. Fund, Inc., 716 F.2d at 921 (declining

to find that “outside time pressures forced the agency to

dispense with APA notice and comment procedures” where agency

waited eight months prior to invoking good cause). “Otherwise,

an agency unwilling to provide notice or an opportunity to

comment could simply wait until the eve of a statutory,

judicial, or administrative deadline, then raise up the ‘good

cause’ banner and promulgate rules without following APA

procedures.” Council of S. Mountains, 653 F.2d at 581.

While the DOL did not “wait until the eve of a statutory,

judicial, or administrative deadline” to act, Nat’l Venture

Capital Ass’n, 291 F. Supp. 3d at 16, the principles underlying

the cases cited above are analogous. Here, the DOL grounds the

necessity for its “immediate action” on the “the shock to the

labor market” resulting from the COVID-19 outbreak in the United

States, 85 Fed. Reg. at 63,898; yet the effects resulting from

the pandemic had been ongoing for several months by the time the

DOL promulgated the IFR. As outlined within the IFR, the

President declared a “national emergency” concerning COVID-19 on

21 March 13, 2020. Id. Because the DOL provided the unemployment

statistics the IFR relies upon, by April 2020, the DOL was aware

of the “widespread unemployment resulting from the coronavirus

public health emergency,” which it refers to as “a rate not seen

since the Great Depression.” See id. at 63,898-99 (“Under the

high unemployment rates experienced in the U.S. labor market

this year, which reached 14.7 percent in April, . . . the

existing flawed and arbitrary wage levels pose an immediate

threat to the livelihoods of U.S. workers.”). Yet the DOL waited

until October—when unemployment reached a “critical moment”

because it was the month “at which the risk of wage scarring and

other adverse employment effects of unemployment [became]

especially acute”—to promulgate the IFR without notice and

comment. Id. at 63,900. Moreover, the DOL’s delay in

promulgating the IFR is compounded by the fact that the DOL

concedes that the update to the prevailing wage levels “should

have been undertaken years ago.” Id.

Defendants argue that to find that the DOL unduly delayed

implementing the IFR “would mean that when an emergency upends

the country, an agency may forgo advance notice and comment only

in the initial stages of that emergency—regardless of how the

emergency evolves over time.” Defs.’ Reply, ECF No. 24 at 12. To

justify the delay in acting, Defendants argue that in March

2020, “it was not immediately apparent how quickly the U.S.

22 labor market would recover or what that recovery would look

like,” but that “[a]s the pandemic continued, . . . it became

clear . . . that continued unemployment resulting from the

COVID-19 pandemic posed a significant risk to U.S. workers.” Id.

at 12-13. It was thus the pandemic’s “continued impact” on U.S.

workers that “required the Department to act quickly.” Id. at

13.

The Court does not discount that the pandemic is and was a

“complex and constantly changing crisis.” Id. Nonetheless,

Defendants’ arguments fail because the IFR acknowledges that the

Executive Branch had early concerns regarding the potentially

devastating harms to the U.S. economy as a result of the COVID-

19 outbreak, and indeed took actions to mitigate those concerns

by April. 85 Fed. Reg. at 63,898. For example, on April 22,

2020, a presidential proclamation suspending the entry of

individuals in certain immigrant classifications, such as EB-2

and EB-3, explicitly warned that the “United States faces a

potentially protracted economic recovery with persistently high

unemployment.” Id. (quoting Proclamation No. 10014, 85 Fed. Reg.

23,441 (Apr. 22, 2020) (“April 22 Presidential Proclamation”)).

The proclamation further directed the DOL to “review

nonimmigrant programs and recommend other measures appropriate

to ‘stimulate the United States economy and ensure the

prioritization, hiring, and employment of United States

23 workers.’” Id. at 63,899 (quoting April 22 Presidential

Proclamation). In addition, a presidential proclamation on June

22, 2020, which restricted the entry of certain immigrants and

nonimmigrants, similarly directed the DOL to consider

promulgating regulations or other appropriate actions “to ensure

that the presence in the United States of aliens who have been

admitted or otherwise provided a benefit . . . pursuant to an

EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does

not disadvantage United States workers.” Id. (citing

Proclamation No. 10052, 85 Fed. Reg. 38,263 (June 22, 2020)

(“June 22 Presidential Proclamation”)). Thus, contrary to the

DOL’s assertion that it was unaware in March or April of COVID-

19’s potential long-term economic impact, the President had

directed the DOL’s attention to the threat of “persistently high

unemployment” in the United States as early as April.

Second, even if the DOL’s decision to wait until October to

issue the IFR does not constitute undue delay, the DOL still has

not shown that advance notice and comment would have been

impracticable. The DOL simply has not provided record support

establishing that there is imminent “serious fiscal harm” to

U.S. workers in connection with H-1B nonimmigrant visas and EB-2

and EB-3 immigrant visas. See Capital Area Immigrants’ Rights

Coal., 2020 WL 3542481, at *13; see also Sorenson, 755 F.3d at

706 (“[T]he good-cause exception should be invoked only in

24 ‘emergency situations . . . or where delay could result in

serious harm.’” (quoting Jifry, 370 F.3d at 1179)).

The IFR provides that “millions of U.S. workers, many of

whom work in industries that employ large numbers of H-1B and

employment-based immigrants, lost their jobs over the past six

months.” 85 Fed. Reg. at 63,900. Furthermore, “[u]nder the high

unemployment rates experienced in the U.S. labor market this

year, which reached 14.7 percent in April, . . . and remain

elevated, the existing flawed and arbitrary wage levels pose an

immediate threat to the livelihoods of U.S. workers.” Id. at

63,899. In the DOL’s “expert judgment” and “based on its review

of the evidence of the effects of the current wage levels, the

existing levels are impeding and will continue to impede, to a

significant degree, many U.S. workers’ ability to return to

well-compensated employment” because “the current levels have,

in many instances, a suppressive effect on U.S. workers’ wages

and allow employers to prefer foreign labor as a lower-cost

labor alternative.” Id. at 63,900. Accordingly, the IFR finds

that “[w]ithout interventions to help U.S. workers, as many as 8

million individuals laid off earlier this year may reach 27

weeks or more of unemployment starting in October 2020.” Id.

While it is true that a “full recovery has not occurred,”

Defs.’ Opp’n, ECF No. 18 at 21, the unemployment statistics

cited within the IFR did not reflect the economic reality at the

25 time the DOL issued the rule. Although the DOL acknowledged that

“hiring in the U.S. has increased, with continued hiring across

all sectors of the economy anticipated,” it nonetheless cited to

the 14.7 percent unemployment figure from April 2020—despite

more recently updated statistics being available—as an

indication of the “exigent circumstances that threaten immediate

harm to the wages and job prospects of U.S. workers.” 85 Fed.

Reg. at 63,898-99. Yet, by the time the DOL issued the IFR, the

general unemployment rate had dropped to 7.9 percent for

September 2020. See News Release: Statement by Secretary of

Labor Scalia on the September Jobs Report, U.S. Dep’t of Labor

(Oct. 2, 2020),

https://www.dol.gov/newsroom/releases/osec/osec20201002. 2 And

according to Mr. Scalia, by September, “[m]ore than half the

jobs lost from the pandemic [had] been restored.” Id.

More significantly, though, the IFR fails to provide any

specific findings connecting the high unemployment exacerbated

by the pandemic with those occupations typically filled by the

immigrant and nonimmigrant workers in the visa programs at issue

in this case. The IFR broadly asserts that “many” of the

“millions of U.S. workers . . . in industries that employ large

2 The Court takes judicial notice of the press release as it is a government document available from a reliable source. See Democracy Forward Found. v. White House Office of Am. Innovation, 356 F. Supp. 3d 61, 68 n.4 (D.D.C. 2019). 26 numbers of H-1B and employment-based immigrants, lost their jobs

over the past six months,” and finds that “as many as 8 million

individuals laid off earlier this year may reach 27 weeks or

more of unemployment starting in October 2020.” 85 Fed. Reg. at

63,900. However, because the IFR does not indicate in which

sectors the high unemployment rates and lay-offs are located, it

is unclear whether the changes the rule implements would in fact

alleviate the harms to U.S. workers affected by the “recent mass

lay-offs.” Id. at 63,898.

Similarly, as stated above, the IFR states that the

unemployment rate reached a high of 14.7 percent in April 2020.

Id. at 63,899. But this figure also refers to the overall

unemployment figure across all sectors in the United States and,

as such, is not the relevant metric for EB-2, EB-3, and H-1B

workers. As the IFR identifies, nearly two-thirds of the foreign

workers on an H-1B visa work in “computer-related occupations”

in the United States. See id. at 63,882. And as the U.S.

District Court for the Northern District of California recently

found in a case analyzing the June 22, 2020 Presidential

Proclamation, “[t]he statistics regarding pandemic-related

unemployment actually indicate that unemployment is concentrated

in service occupations and that large number of job vacancies

remain in the area most affected by the ban, computer operations

which require high-skilled workers.” Nat’l Ass’n of Mfrs. v.

27 U.S. Dep’t of Homeland Sec., No. 20-cv-4887-JSW, 2020 WL

5847503, at *13 (N.D. Cal. Oct. 1, 2020) (finding that the

plaintiffs were likely to succeed on their claim because the

proclamation “does not comport with actual facts,” among other

things); see also Purdue Pls.’ Reply, ECF No. 20 at 13 (“During

the 30 days ending October 2, 2020, there were over 655,000

active job vacancy postings advertised online for jobs in common

computer occupations—including over 280,000 postings for

‘software developers, applications.’”). Indeed, “[t]he

unemployment rate in computer occupations was 3.0% in January

2020 (before the economic impacts of the virus were felt) and

[stood] at 3.5% in September 2020.” Purdue Pls.’ Reply, ECF No.

20 at 12 (second alteration in original) (citing Amicus Br., ECF

No. 16-1 at 11). “These jobs are simply not fungible.” Nat’l

Ass’n of Mfrs., 2020 WL 5847503, at *13. Here, there is a

“significant mismatch of facts regarding the unemployment caused

by the proliferation of the pandemic” and the immigrant and

nonimmigrant worker visas targeted in the IFR. Id.

Accordingly, the DOL has failed to demonstrate that it was

necessary to dispense with advance notice and comment in order

to “prevent fiscal harm” to U.S. workers due to recent pandemic-

related “mass lay-offs.” See 85 Fed. Reg. at 63,898. The Court

therefore finds that the DOL has failed to carry its burden to

28 show that it was “impracticable” to provide advance notice and

comment.

B. The DOL Has Not Shown That Providing Advance Notice And Comment Would Be Contrary To The Public Interest

The Court next considers whether the DOL sufficiently

justified its decision, as described in the IFR, that advance

notice-and-comment procedures would have been contrary to the

public interest.

“The public interest prong of the good cause exception is

met only in the rare circumstance when ordinary procedures—

generally presumed to serve the public interest—would in fact

harm that interest.” Mack Trucks, Inc., 682 F.3d at 95. It is

appropriately invoked when the timing and disclosure

requirements of the usual procedures would defeat the purpose of

the proposal—if, for example, “announcement of a proposed rule

would enable the sort of financial manipulation the rule sought

to prevent.” Util. Solid Waste Activities Grp., 236 F.3d at 755.

In such a situation, “notice and comment could be dispensed with

‘in order to prevent the amended rule from being evaded.’” Mack

Trucks, Inc., 682 F.3d at 95 (citation omitted). “The question

is not whether dispensing with notice and comment would be

contrary to the public interest, but whether providing notice

and comment would be contrary to the public interest.” Id.

29 The DOL justified its decision to dispense with notice and

comment by explaining that its actions were necessary “to

prevent the evasion by employers of the new wage requirements

that would likely result from announcing a change to the levels

in advance of the change taking effect.” 85 Fed. Reg. at 63,901.

According to the DOL, “[t]he limited discretion” it enjoys “with

respect to how quickly it reviews LCAs, in combination with the

leeway employers have on when they file, as well as historical

filing patterns, show that advance notice of the wage level

changes effected by this rule could result in the kind of

‘massive rush’ to evade price changes.” Id. In addition to

noting the “potential administrative burden” the DOL would face

in the event of a substantial increase in LCA filings during any

advance notice and comment, the DOL asserted that “[a]llowing

employers to lock in for extended periods prevailing wage rates

that the Department has determined often result in adverse

effects on U.S. workers’ wages and job opportunities would

prolong the very problem—made exigent by the current state of

the labor market—that the Department is seeking to address”

through the IFR. Id.

The Court finds the DOL’s explanation insufficient. As an

initial matter, although the DOL claims that “announcing a

change to the [prevailing wage] levels in advance of the change

taking effect” would have caused harm to the public interest,

30 the Executive Branch had already announced its intent to issue

such a rule some months prior to the IFR’s promulgation. For

example, on June 22, 2020, during a background press call with a

“senior administration official,” the official announced that

the DOL had “been instructed by the President to change the

prevailing wage calculation . . . with respect to H-1B wages”

and that it was going to “set[] the prevailing wage floor at the

50th percentile so [H-1B workers] will be in the upper end of

earnings.” See Office of the Press Secretary, Transcript of

White House Background Press Call Concerning the June 22

Presidential Proclamation (June 22, 2020) (emphasis added),

www.aila.org/infonet/transcript-of-white-house-background-press-

call. 3 In addition, on August 3, 2020, the President publicly

remarked that “[a]s we speak, we’re finalizing [H-1B]

regulations so that no American worker is replaced ever again.

[H-1Bs] should be used for top, highly paid talent to create

American jobs, not as inexpensive labor program to destroy

American jobs.” Remarks by President Trump in a Meeting with

U.S. Tech Workers and Signing of an Executive Order on Hiring

American, White House (Aug. 3, 2020),

www.whitehouse.gov/briefings-statements/remarks-president-trump-

3 The Court takes judicial notice of the White House official’s remarks as representations of the government’s position. See Al- Aulaqi v. Panetta, 35 F. Supp. 3d 56, 68 (D.D.C. 2014). 31 meeting-u-s-tech-workers-signing-executive-order-hiring-

american/. 4 Thus, it was public knowledge at least by June that

the DOL was working on drafting a rule that would increase the

prevailing wage floor with respect to H-1B workers, with the

goal of ensuring that they would be “highly paid.” The Executive

Branch’s willingness to reveal its plans to raise the prevailing

wage floor, including an estimated percentile change, and

deliver status updates on the DOL’s development of the IFR

undercuts its prediction that “announcing a change” to the

prevailing wage calculus would have caused serious harm to the

In addition, the Court notes that the LCA process has

built-in legal safeguards that limit the extent to which

employers could take advantage of advance notice-and-comment

procedures to evade the rule. While the DOL is required to

approve an LCA within seven days of when the application is

filed, 20 C.F.R. § 655.740(a)(1), employers themselves are not

permitted to file an LCA earlier than six months prior to the

beginning date of the period of intended employment, 20 C.F.R. §

655.730(b). Defendants, however, argue that the “limited

discretion the Department has with respect to how quickly it

4 The Court takes judicial notice of the President’s remarks as representations of the government’s position. See Al-Aulaqi, 35 F. Supp. 3d at 68. 32 reviews LCAs, in combination with the leeway employers have on

when they file,” 85 Fed. Reg. at 63,901, provides the

opportunity “for employers to attempt to evade the adjusted wage

requirements,” id. at 63,898. Defendants argue that “employers

would have every incentive to submit LCAs during the notice and

comment period for the IFR for any potential employment of

foreign workers within the next six months or even to move up

their hiring timelines in order to avoid a requirement to pay a

higher wage for years.” Defs.’ Opp’n, ECF No. 18 at 30. But

Defendants ignore the fact that an employer may only file an

LCA, which is signed under penalty of perjury, 20 C.F.R. §

655.730(c)(1), if they intend to employ an H-1B worker in an

identified occupation, at a specific place of employment, and

for a specific period of time, see id. § 655.730(c)(4). Indeed,

as the Stellar IT Plaintiffs point out, the government has

previously criminally prosecuted employers “for filing

applications for non-existent jobs in temporary worker

programs.” Stellar IT Pls.’ Reply, ECF No. 11 at 10 (citing

United States v. Eury, Nos. 14-cr-39-2/5, 2015 U.S. Dist. LEXIS

1861807, *3 (M.D.N.C. Apr. 23, 2015)).

In any event, the DOL has failed to provide any evidence in

the record supporting its prediction that there would be a

“massive rush” to evade the IFR if the DOL had provided advance

notice and comment. 85 Fed. Reg. at 63,901. This Court

33 recognizes that the DOL’s prediction regarding rule evasion

“entails a degree of speculation by the agency,” and is

therefore “hesitant to discount such forecasts, as they

‘necessarily involve deductions based on expert knowledge of the

Agency.’” Tenn. Gas Pipeline Co., 969 F.2d at 1145 (quoting

Mobil Oil Corp. v. Dep’t of Energy, 728 F.2d 1477, 1492 (Temp.

Emer. Ct. App. 1983)). In addition, “[c]ommon sense dictates

that the announcement of a proposed rule may, at least to some

extent and in some circumstances, encourage those affected by it

to act before it is finalized.” See Capital Area Immigrants’

Rights Coal., 2020 WL 3542481, at *13. However, under D.C.

Circuit precedent, suggesting “incentives” as a justification,

without further evidence, is generally insufficient to

constitute good cause. See Sorenson, 755 F.3d at 707 (“Though no

particular catechism is necessary to establish good cause,

something more than an unsupported assertion is required.”); see

also Tenn. Gas Pipeline Co., 969 F.2d at 1146 (finding that

where an agency “claim[s] good cause without offering any

evidence, beyond its asserted expertise, as to why the public

interest is served by the immediate implementation of the

interim rule,” the agency has failed to demonstrate good cause);

Sorenson, 755 F.3d at 706 (“To accord deference [to an agency’s

invocation of good cause] would be to run afoul of congressional

intent.”); Capital Area Immigrants’ Rights Coal., 2020 WL

34 3542481, at *13 (explaining that good cause justification

regarding potential rule evasion “cannot satisfy the D.C.

Circuit’s standard . . . unless it is adequately supported by

evidence in the administrative record suggesting that this

dynamic might have led to the consequences predicted by the

Departments—consequences so dire as to warrant dispensing with

notice and comment procedures.”); see also E. Bay Sanctuary

Covenant v. Trump, 950 F.3d 1242, 1278 (9th Cir. 2020) (“The lag

period before any regulation, statute, or proposed piece of

legislation allows parties to change their behavior in response.

If we were to agree with the government’s assertion that notice-

and-comment procedures increase the potential harm the Rule is

intended to regulate, these procedures would often cede to the

good-cause exception.”).

The D.C. Circuit’s decision in Tennessee Gas Pipeline Co.

v. FERC, 969 F.2d 1141 (D.C. Cir. 1992), is instructive. In

Tennessee Gas Pipeline, the D.C. Circuit evaluated an agency’s

invocation of good cause based on the agency’s prediction of

rule evasion. At issue was a rule that required “advance notice

and disclosure by natural gas pipeline companies of the

construction of new facilities or the replacement of existing

ones.” Id. at 1142. The agency, the Federal Energy Regulatory

Commission (“FERC”), dispensed with notice-and-comment

procedures, arguing that such procedures could contribute to

35 environmental harm because the companies “may respond to the

proposed changes in the regulations by commencing construction”

to avoid regulatory uncertainty or the rule’s application to a

certain project. Id. at 1143. Even though the D.C. Circuit was

“hesitant to discount such forecasts” because they “necessarily

involve deductions based on expert knowledge of the Agency,” the

court rejected FERC’s argument because it had “provided little

factual basis for its belief that pipelines [would] seek to

avoid [the] future rule by rushing new construction and

replacements with attendant damage to the environment.” Id. at

1145. The D.C. Circuit noted that the agency had only cited one

case where relevant construction had previously harmed the

environment, and it found that the agency’s claim that it had

“ample practical experience on which to support” its prediction

did not “excuse the Commission’s failure to cite such examples

in support of its claim of a good cause exception.” Id. at 1145-

46. The court accordingly held that the agency had failed to

demonstrate sufficient cause for setting aside notice and

comment procedures. Id. at 1146.

Here, too, the DOL has failed to provide any evidence in

the record that supports its contention that a “massive rush” to

evade the IFR would have occurred if the DOL had provided

advance notice and comment. 85 Fed. Reg. at 63,901. Despite

pointing to “historical filing patterns” as evidence supporting

36 its conclusion, the statistics the DOL provides only indicate

the average number of LCAs it typically receives during the six

month period beginning in September. 85 Fed. Reg. at 63,901

(stating that the DOL receives an average of 147,123 LCAs during

this time period over the previous three years). While the Court

does not doubt that this number is substantial, it is hardly

evidence establishing the likelihood of rule evasion. Neither

does the DOL provide evidence that employers have made a

“‘massive rush’ to evade price changes” in the past. For

example, as the Stellar IT Plaintiffs note, there is no

indication that employers have rushed to submit LCAs each June

before the yearly publication of new wage rates for the year in

July. Stellar IT Pls.’ Mot., ECF No. 7-1 at 32. And even

assuming as true that “the lack of a spike each June is not

significant, because the yearly changes to the existing wage

rates are not nearly as dramatic as the changes to the

computational methodology set forth in the IFR,” Defs.’ Reply,

ECF No. 24 at 15, neither does the DOL provide any evidence of a

spike during the approximately four-month period between the

Executive Branch’s June announcement regarding the planned

change to the prevailing wage calculation and the IFR’s

promulgation in October.

It is true, however, that the D.C. Circuit has recognized

that some courts “have allowed use of the good cause exception

37 based on bare predictions of regulatory avoidance.” Tenn. Gas

Pipeline Co., 969 F.2d at 1146. For example, Defendants rely on

Mobil Oil Corp. v. Department of Energy, 728 F.2d 1477 (Temp.

Emer. Ct. App. 1983), in arguing that the DOL was not required

to offer “hard evidence” that rule evasion would occur. Defs.’

Reply, ECF No. 24 at 17-18. Mobil Oil involved a Federal Energy

Administration (“FEA”) regulation, issued without notice and

comment, that “equalize[d] prices charged to different classes

of customers by oil refiners during the energy crisis of the

early [1970s].” Tenn. Gas Pipeline Co., 969 F.2d at 1146. The

agency claimed that “advance notice of the regulation would lead

to regulatory avoidance by way of long-term contracts,” id., and

the Temporary Emergency Court of Appeals agreed, despite “no

showing that in fact [companies] would be injured during the

notice and comment period,” Mobil Oil Corp., 728 F.2d at 1492.

The D.C. Circuit, however has since distinguished Mobil Oil,

emphasizing that the court’s ruling was based on “special

circumstances” that are not present here. See Tenn. Gas Pipeline

Co., 969 F.2d at 1146. The D.C. Circuit explained that the facts

of Mobil Oil “set it apart” because “[i]t is well recognized

that prices can be changed rapidly to accommodate shifts in

regulatory policy.” Id. In contrast to the speed of commodity

price changes, the Court is not convinced that the filing of LCA

applications could increase so rapidly during a notice-and-

38 comment period such that it would produce significant harms to

the public interest—particularly in view of employers’ inability

to file an LCA earlier than six months prior to employment, as

well as the DOL’s failure to connect pandemic-related

unemployment with the types of occupations typically filled by

H-1B workers. The line of similar cases arising from the 1970s

energy crisis cited within the IFR are similarly

distinguishable. See, e.g., Nader v. Sawhill, 514 F.2d 1064,

1068-69 (Temp. Emer. Ct. App. 1975) (finding good cause existed,

though agency had failed to provide more than a cursory

justification for that finding, and “stress[ing] categorically

that our resolution of the procedural issues herein is founded

upon the unique circumstances in which this price increase was

formulated. Assuming less calamitous circumstances, we fully

expect that any future decisions will take the utmost advantage

of full and open public comment.”); DeRieux v. Five Smiths, 499

F.2d 1321, 1332 (Temp. Emer. Ct. App. 1974) (concluding there

was good cause “based upon facts so obvious that they may be

judicially noticed” where it was “apparent that there would have

ensued a massive rush to raise prices and conduct ‘actual

transactions’—or avoid them—before the freeze deadline”).

The Court therefore finds that the DOL did not sufficiently

justify its prediction that advance notice-and-comment

procedures would have been contrary to the public interest.

39 IV. Conclusion

For the reasons stated above, the Purdue Plaintiffs’ motion

Plaintiffs’ motion for partial summary judgment, ECF No. 7, are

GRANTED. The Purdue Defendants’ cross-motion for partial summary

judgment, ECF No. 19, and the Stellar IT Defendants’ cross-

motion for partial summary judgment, ECF No. 9, are DENIED. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 14, 2020