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Keywords

appealsummary judgmentwillregulationappellant
regulationappellant

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Kooritzky v. Reich

Facts

Appellant, a prospective employer of an alien, filed an action to enjoin enforcement of a regulation on the ground that the Department of Labor promulgated it without notice. The new provision eliminated the employer's freedom to substitute a new alien when the alien named in the application became unable or unwilling to accept the job. The district court granted summary judgment in favor of the agency, leading to the appeal by the appellant.

Appellant, a prospective employer of an alien, filed an action to enjoin enforcement of a regulation on the ground that the Department of Labor promulgated it without notice.

Issue

Did the Department of Labor comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553, when it promulgated the no-substitution rule?

Did the Department of Labor comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553, when it promulgated the no-substitution rule?

Rule

Agencies must include in their notice of proposed rulemaking 'either the terms or substance of the proposed rule or a description of the subjects and issues involved' and must give 'interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.'

Agencies must include in their notice of proposed rulemaking 'either the terms or substance of the proposed rule or a description of the subjects and issues involved' and must give 'interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.'

Analysis

The court found that the Department's notice of proposed rulemaking did not contain the terms of the no-substitution rule it later promulgated, nor did it propose abolishing substitution or mention the issues involved in doing so. The court emphasized that the final rule must be a logical outgrowth of the proposed rule, and since the proposed rule did not mention substitution at all, the final rule could not be considered a logical outgrowth.

The court found that the Department's notice of proposed rulemaking did not contain the terms of the no-substitution rule it later promulgated, nor did it propose abolishing substitution or mention the issues involved in doing so.

Conclusion

The court reversed the judgment of the district court and remanded the case, holding that the Department of Labor acted arbitrarily and without observance of the required procedure under 5 U.S.C. 553.

The court reversed the judgment of the district court and remanded the case, holding that the Department of Labor acted arbitrarily and without observance of the required procedure under 5 U.S.C. 553.

Who won?

Appellant prevailed in the case because the court found that the Department of Labor failed to comply with the notice and comment requirements of the Administrative Procedure Act.

Appellant prevailed in the case because the court found that the Department of Labor failed to comply with the notice and comment requirements of the Administrative Procedure Act.

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