Labor & Employment Law Daily Wrap Up, IMMIGRATION—D.D.C.: Constitutional challenges to H-2B visa enforcement rejected, (Aug 28, 2025)

By Todd Harrison, J.D.

The Department of Labor properly brought the underlying enforcement action before an agency tribunal because that action fell within the public rights exception identified in Jarkesy.

Granting summary judgment against the constitutional and statutory claims asserted by a traveling carnival company stemming from a DOL enforcement action related to the issuance of H-2B visas, a federal court in the District of Columbia determined that the public rights exception identified in Jarkesy applied and, even if that exception did not cover the enforcement action, the company had impliedly consented to agency adjudication in this case that began over a decade ago. As to the statutory challenges, the court found that DOL was not enjoined from using 2008 rules in matters concerning labor certifications prior to the effective date of a court injunction tossing out those rules (Butler Amusements, Inc. v. United States Department of Labor, No. 24-1402 (D.D.C. Aug. 26, 2025)).

In 2012, Butler Amusements (Butler) sought to bring over 200 foreign workers to the United States through the H-2B visa program to work at its traveling carnival. It obtained approval by representing to the DOL that the workers would be hired as amusement and recreation attendants, and that no U.S. workers were willing or able to take those jobs.

Investigation. A subsequent DOL investigation revealed that Butler had misclassified workers, employing a number of H-2B noncitizen workers in roles other than those approved to obtain the H-2B visas, and paying the noncitizen workers a lower wage than would have been necessary for U.S. workers in the same jobs.

Enforcement action. In response to this investigation, the DOL initiated enforcement proceedings against Butler in 2018 for violating the 2008 H-2B regulations. After a hearing, an administrative law judge ordered Butler to pay $26,786 in back wages and $10,000 in civil penalties. This order was affirmed in 2023 by DOL’s Administrative Review Board.

Lawsuit. After five years of administrative proceedings, Butler sued DOL and its Secretary in her official capacity, raising for the first time in this lawsuit arguments that enforcement of the terms of the H-2B visa program violated its constitutional rights under Article II, Article III, and the Seventh Amendment, asking that DOL’s enforcement regime be struck down wholesale as unconstitutional.

Short of such a remedy, Butler separately asserted two non-constitutional claims rejected by DOL, complaining that, because of the unusual history of the 2008 DOL adjudication rules being applied, it has spent “the last 11 years defending itself” against violations of a “doublydead, vacated-and-replaced 2008 DOL Rule,” asking that further enforcement of these rules be stopped so that “the same set of regulations apply to all alike.” The court considered these arguments in turn.

Public rights vs. private rights. First, the court addressed Butler’s Article III and Seventh Amendment challenges. Here, Butler argued that the defendants violated these constitutional provisions because any enforcement action against it should have been brought “in an Article III court” and not an administrative tribunal, so that the case could have been submitted to a jury, as guaranteed by the Seventh Amendment.

In response, the defendants argued that “even if the Seventh Amendment is implicated, this case plainly involves public rights,” which “can be adjudicated outside federal courts” unlike “private rights.” The court sided with the defendants.

Jarkesy. To determine whether an underlying claim can be adjudicated in a jury-less administrative forum, a two-part analysis is applied. According to the Supreme Court’s decision in SEC v. Jarkesy, 603 U.S. 109 (2024), a court must first determine “whether th[e] ‘action implicates the Seventh Amendment’ because of its common law ancestry or the common-law nature of the remedy sought.” Even if the action does so, at the second step a court must consider whether the “public rights exception” applies.

The Supreme Court has made clear that certain “historic categories of adjudications fall within the exception,” including “immigration,” observed the court here.

Plenary power. According to Jarkesy, Congress’s power over immigration is plenary. Thus, Congress may authorize the Executive branch to administer and adjudicate immigration laws like the voluntary H-2B visa program. DOL’s regulations prescribing how an employer may recruit and hire noncitizen workers under the H-2B program are thus properly categorized as “new statutory obligations,” and violations of those obligations are derived from a federal regulatory scheme with standards that fall outside of the common law, since those rules were created pursuant Congress’s plenary power over immigration, explained the court. As such, with regard to the H-2B visa program, Congress has properly entrusted to an administrative agency the task of adjudicating alleged violations and assessing appropriate penalties, said the court.

Implied consent. Even if the adjudication, should have been held in an Article III court, the defendants contended that Butler consented to non-Article III adjudication by actively participating in proceedings before DOL tribunals without objection. The court agreed.

Given that Butler litigated for five years before the agency without raising any concerns, the court found it had given its implied consent to have the matter addressed administratively. Rejecting Butler’s contention that it was never made aware of the need for consent to the agency adjudication nor the right to refuse that forum, the court found that it was made aware of the need to consent to agency adjudication by choosing to participate in the voluntary H-2B visa program—a comprehensive statutory and regulatory immigration program with regulations that provide a detailed enforcement mechanism wherein violations of the program would be initially adjudicated by a non-Article III decisionmaker.

Butler, continued the court, had the right to refuse such adjudication by either not participating in the voluntary H-2B visa program or participating in the program and objecting to the agency’s adjudication during five years of litigation. Accordingly, summary judgment was granted against Butler’s Article III and Seventh Amendment claims.

No harm. Turning to Butler’s claim that “vacatur of DOL’s entire award” is warranted because “the ALJs enjoy multiple layers of for-cause removal protections,” in violation of Article II, the court found that this claim failed because Butler made no argument about suffering any harm from the DOL ALJ’s removal protections.

2008 rules. Next, the court considered Butler’s arguments that the 2008 rules forming the basis for the charged violation were unenforceable either because of a different court’s prior order or because DOL’s superseding 2015 rules rendered the 2008 rules retroactively unenforceable.

In 2008, the DOL promulgated a regulation governing the labor certification process through notice and comment rulemaking. Although the Third Circuit affirmed the legality of the 2008 rules, a district court in a different circuit reached a contrary conclusion in 2015, finding that “DOL lack[ed] authority to engage in legislative rulemaking under the H-2B program, and therefore lacked authority to enact the 2008 regulations.” The court went on to permanently enjoin DOL from enforcing those rules.

Given these conflicting judicial orders, DOL ceased to operate the H-2B program. To restart the program, Homeland Security and Labor jointly promulgated new rules in 2015.

No retroactive application. Five months after the permanent injunction concerning the 2008 rules was issued, the district court clarified “that the permanent injunction was not intended to, and does not, apply retroactively.” The court reiterated that clarification in 2019.

Here, Butler argued that the district court’s order “was necessarily retroactive” without citing to any case law for the position that vacatur of agency rules are ipso facto retroactive. The court noted that this can be a hotly debated matter. However, it was unnecessary to divine the intent of the district court given its clarifying order and subsequent decision in 2019.

Finding no question that Butler’s temporary labor certification was issued under the 2008 rules prior to the district court’s permanent injunction, the court explained that the injunction did not infringe on DOL’s authority to enforce the temporary labor certification Butler attested to under penalty of perjury nearly a decade ago.

2015 rules. As to Butler’s claim that the 2015 rules repealed and replaced the 2008 rules, the court found that such an assertion did not change its analysis. Given that the 2015 rules made it clear that they were to apply prospectively, this argument failed at the starting gate, said the court. Accordingly, the court found the 2008 rules were enforceable, and the defendants’ motion for summary judgment against these claims was granted.

The case is No. 24-1402.

Judge: Howell, B.

Attorneys: Robert Wayne Pierce (Law Offices of Robert Wayne Pierce) for Butler Amusements, Inc. Anna Lynn Deffebach, U.S. Department of Justice, for U.S. Department of Labor.

Companies: Butler Amusements, Inc.

Cases: Immigration CoverageLiability EmployeeStatus Procedure DistrictofColumbiaNews