“Social Contagion:” Why Not allowing employers to file merits briefs in H-2B proceeding is wrong
Social contagion is a “process by which information, such as attitudes, emotions, or behaviors, are rapidly spread throughout a group from one member to others without rational thought and reason.” This process is “ubiquitous.” Id. Even DOL’s Office of Administrative Law Judges is not immune. Beginning around November 15th of last year, the idea that employers were not allowed to file merits briefs in H-2B requests for review took hold. Although this idea lacks any coherent rationale (the ALJs adopting it have yet to agree on one), it has taken off like wildfire and, although still a minority position overall, appears to be gaining steam.
The H-2B regulations allow an employer to seek review of a denial certification. One of Hall Global’s specialized practice areas is H-2B proceedings before DOL OALJ. We have prosecuted scores of H-2B reviews as well as an equally significant number of H-2A de novo hearings. While challenging and requiring specialized expertise, these record reviews and hearings provided employers with a fair shot at reversing an erroneous denial of a certification.
That is, until now.
To understand the issue, an overview of the process of seeking review is helpful. If an employer wants review of a denied certification, it must file a timely request for review. The requirements are not particularly onerous and are found in 20 C.F.R. 655.61. Two are pertinent here: the request must set forth the particular grounds for the request (655.61(a)(3)) and may contain only legal argument (655.61(a)(5)). The purpose of this information is to notify the Chief Judge about the case so that it may be assigned. In practice, the familiar standard from Fed. R. Civ. P. 8 - short and plain statement of the claim - has been the rule.
After filing, the CO prepares the Appeal File. Because the H-2B process is record review, the Appeal File provides the factual basis for the decision. This is the venerable APA record rule. Until the Appeal File is complete, merits arguments cannot be made. Then briefing takes place. The regulation sets the schedule for the CO but leaves the timing of the employer’s brief to the ALJ (20 C.F.R. 655.61(c)). The regulation then requires the ALJ to decide the case based “only on the basis of the Appeal File, the request for review, and any legal briefs submitted.” This was fair and gives both sides a reasonable chance at persuading the ALJ.
No longer.
Around November 15th, a palpable minority of ALJs started denying employers a chance to file a merits brief. Some applied the regulations relating to the Northern Marianas Islands prohibiting the filing of a merits brief to the mainland United States, even though the regulations applying to the latter do not contain the same prohibition. 20 C.F.R. 655.461 (Northern Marianas Islands). Others cited 655.61(c) - the section requiring the CO’s counsel to move expeditiously if counsel wanted to file a brief - and implying that an employer could not file a brief. Others viewed the limitation of the request for review to legal argument as implying that the employer had to provide a merits brief in its request for review (amounting in substance to applying Commonwealth of the Northern Marianas Islands regulation (“If the employer wishes to submit a brief on appeal, it must do so as part of its request for review”) to the United States.) Others did not cite any authority or provide any rationale (just a conclusory statement that an employer was not allowed to file a brief). Some ALJs recognize that 20 CFR 655.61 does not prohibit employers from filing a merits brief but impose a “compelling circumstances” test as a precondition but never explain what “compelling circumstances” are or where the regulation provides the authority to establish this condition.
A recent decision, however, lays out what appears to be the rationale for this practical, if not formal, prohibition. In In the Matter of Lindskov Firesteel Hunting Lodge, No. 2024-TLN-00079, the employer (represented by Hall Global) was denied the opportunity to file a brief and moved for leave to do so. The Court denied leave (after the decision on the merits was issued). Unlike other ALJs, the presiding judge explained the rationale for the result in a written opinion.
The opinion started by acknowledging that employers are normally allowed to file merits briefs. See id. at 1. But, then, the ALJ imposed a “good cause” requirement: “And, had Employer expressed any good reason why it needed to file a brief in this case, the undersigned would have allowed Employer to do so.” Id. The ALJ then explained that the employer needed to “articulate[] any reason why it needs to file a brief in this case and the legal arguments it has already made in its appeal should not suffice.” Id. Of course, until the employer’s counsel received the opinion after the decision was issued, it did not suspect that there was a “good cause” requirement lurking in the regulation.
This reasoning has two flaws. First, it arbitrarily presumes that the employer’s brief will not be helpful to the ALJ (even though the regulations take the opposite view). How is it possible for a neutral judge to entertain, much less adopt and act upon, the premise that one party’s brief is so likely to be useless it is better to impose a for cause requirement. In Article III courts, that is reserved as a sanction for egregious abuses. Here, it is imposed based on the identity of the party.
Then the ALJ offered a reason for imposing the good cause requirement. In essence, receiving an employer’s brief would be so time consuming that the tribunal’s ability to decide the review in a timely manner would be put at risk. When the employer pointed out that, as the party with the burden of proof, simple fairness required a chance to brief the case, the ALJ responded:
This argument ignores the expedited nature of this proceeding, the reason why expeditious decisions are so important in these types of cases, and the limitations on administrative law judges’ time and resources in managing these types of cases along with the remainder of their dockets.
Id. at 2. These considerations, per the ALJ, outweighed fairness and justified denying an employer a shot at presenting its argument on the record in a record review proceeding.
The ALJ’s reasoning is interesting:
Expedited decisions in these types of cases are important because employers’ asserted needs for foreign workers often begin shortly after an appeal is filed. Delay in issuing decisions in these types of cases would have an adverse effect on employers similar to denying their applications for foreign workers.
Not to put too fine a point on it, this reasoning is almost cruel and a classic Catch-22. An employer may not participate at the merits phase of the proceeding because of the need to protect the employer from an erroneous decision. But an expeditious decision does not protect employers in practice: Every request for review proceeding in which an employer has been prevented from filing a brief has resulted in affirmance of the CO. The opposite is true. When employers succeed in having the CO reversed, they had been allowed to file a merits brief. In the Matter of James Meats, 2024-TLN-00009. Perhaps, this is coincidence, but perhaps it reflects an unfair structural disadvantage.
The ALJ continued:
And, the judges who hear these types of cases for the Board inevitably have other docket commitments that they have to manage, which may make it difficult to comply with the expedited deadlines in these types of cases.
Lindskov, at 3. What the ALJ does not explain is exactly why this is true. Either the merits brief will track the request for review or present new arguments or both. If the merits brief repeats the request for review, the judge would be able to figure that out in maybe 10 minutes by skimming the brief. The judge will then set it aside and consider it no longer. If the merits brief presents new arguments, it would require work to analyze and assess in light of the CO’s argument. But the ALJ states, in that case, a merits brief would be accepted because there is good cause (i.e., new arguments). The effect of a no briefing rule is to ward off new arguments so as to avoid the docket pressure of considering them. But that directly contradicts the regulations and the court’s role as a neutral arbiter. 20 C.F.R. 655.61(e).
Moreover, if docket pressure is the reason for denying a brief, the rule defeats itself. The reason is that it gives the CO a chance to limit the court’s consideration of the merits to three business to stating that he or she will not be filing a brief. Then the judge has to get the decision out in three business days. But if the employer is allowed to file a brief, the CO is likely to file one giving the Court seven full business days - four extra business days to decide plus the assistance of an employer’s brief laying out based on the administrative record (so the judge need not comb through it) the material evidence in support. Docket pressures support allowing employers to participate as equals in the proceedings.
Social contagions come and go. For the sake of a fair review process for denials of H-2B certifications, it is to be hoped that this one passes sooner rather than later.
