On remand, this Court entered a remedial order, directing the government to promulgate a new rule according to notice-and comment procedures and, with the consent of all parties, required vacatur of the invalid 2011 TEGLS upon the effective date of the new rule. Mendoza v. Perez, 72 F.Supp.3d 168, 175 (D.D.C.2014) (“Remedial Order”). The two 2011 TEGLs are: TEGL No. 15–06, Change 1, Special Procedures: Labor Certification Process for Occupations Involved in the Open Range Production of Livestock under the H–2A Program (“2011 Cattleherder TEGL”), 76 Fed.Reg. 47,243 (Aug. 4, 2011), which provided special regulations governing certification of the temporary employment of nonimmigrant cattleherders; and TEGL No. 32–10, Special Procedures: Labor Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations Under the H–2A Program (“2011 Sheepherder TEGL”), 76 Fed.Reg. 47,256 (Aug. 4, 2011), which provided special regulations for the certification of the temporary employment of nonimmigrant goatherders and sheepherders.
At the time of filing the instant lawsuit, the 2011 TEGLs had already been held invalid in the Mendoza litigation and were operating on borrowed time, pending the effective date of a superseding rule, pursuant to a remedial order entered with the agreement of all parties in the Mendoza litigation to avoid disruption in the industry. SeeMendoza v. Perez , 72 F.Supp.3d 168, 175 (D.D.C.2014) (" Remedial Order"). Indeed, less than three months after the instant suit was filed, the 2011 TEGLs were superseded by a new 2015 rule, made effective on November 16, 2015.
The case was then remanded, and the district court ruled that the invalidated 2011 Guidance Letter could remain in effect while a new rule was properly promulgated. ORDER , Mendoza v. Perez , No. 11-1790 (D.D.C. Oct. 31, 2014), ECF No. 54 at 1.The Labor Department then promulgated a new rule, through notice and comment, that took effect on November 16, 2015. 80 Fed. Reg. 62,958 (Oct. 16, 2015).
The reasons for the D.C. Circuit's ruling appear equally applicable to the 2001 Special Procedures in effect during Mr. Saenz's employment. However, on remand from the D.C. Circuit, the district court left the Special Procedures in place until the notice-and-comment process could be completed. Mendoza v. Perez, 72 F.Supp.3d 168, 175 (D.D.C.2014). No one before us disputes that the 2001 Special Procedures are controlling in this case, and we will treat them as such.
A fundamental flaw has been found "when an agency's explanation of the basis and purpose of its rule is so inadequate that the reviewing court cannot evaluate it." Heartland , 566 F.3d at 199 ("Failure to provide the required notice and to invite public comment ... is a fundamental flaw that ‘normally’ requires vacatur of the rule."); see alsoMendoza v. Perez , 72 F.Supp.3d 168, 175 (D.D.C. 2014) (holding that the "failure of the Federal Defendants to engage in notice and comment is a fundamental procedural flaw"). While APHIS acted unreasonably when it relied on expired statutory authority to justify the reserve fee, such a deficiency in these circumstances does not rise to the level of a "fundamental flaw" in which APHIS would have " ‘little or no prospect’ of curing the defect in the rule."
It comes as no surprise, then, that "[w]hen notice-and-comment is absent, the Circuit has regularly opted for vacatur." In re Long–Distance Tel. Serv. Fed. Excise Tax Refund Litig., 853 F.Supp.2d 138, 144 (D.D.C. 2012) ; see also CropLife America v. EPA, 329 F.3d 876, 879 (D.C. Cir. 2003) (vacating regulation issued without notice and comment); Mendoza v. Perez, 72 F.Supp.3d 168, 175 (D.D.C. 2014) (vacating rule when agency failed to "engage in notice and comment," as error was "a fundamental procedural" one); AFL–CIO v. Chao, 496 F.Supp.2d 76, 91 (D.D.C. 2007) (noting that "failure to comply with the APA's notice-and-comment requirements is unquestionably a ‘serious’ deficiency"). Nor would vacatur be particularly disruptive.
" Id. On remand, this Court ordered the government to publish a Notice of Proposed Rulemaking by March 1, 2014, and a final rule by November 1, 2015, and set the new rule's effective date as "30 days after the rule's publication or December 1, 2015, whichever is earlier." Mendoza v. Perez , 72 F.Supp.3d 168, 175 (D.D.C. 2014). The 2011 TEGLs were ordered vacated as of the effective date of the new rule.
BACKGROUND The factual background underlying this case has previously been explained in detail, seeHispanic Affairs Project v. Perez, 141 F.Supp.3d 60, 63-66 (D.D.C. 2015), vacated and remandedMendoza v. Perez, 754 F.3d 1002, 1024, 410 U.S.App.D.C. 210 (D.C. Cir. 2014); Mendoza v. Perez, 72 F.Supp.3d 168, 169-71 (D.D.C. 2014), and the plaintiffs' pending motion challenges only one aspect of the Court's previous Memorandum Opinion and Order addressing the defendants' motion to dismiss, seeHispanic Affairs Project, 2016 WL 4734350 at *13-14. Accordingly, a full explication of the facts is unnecessary.