Administrator, Wage and Hour Div., USDOL v. The Edgewood Co., LLC (agency decision, February 28, 2025)

Plain-English summary

The Edgewood Company demanded a jury trial in an H-2B enforcement proceeding, relying on the Supreme Court's Jarkesy decision. The administrative judge denied the demand but certified the controlling legal question for interlocutory review. The Board explained that it may consider some as-applied constitutional questions but cannot decide facial challenges to the statutes and Labor Department regulations it administers. Because neither the H-2B statute nor its regulations provide a jury trial, the company's position appeared to require such a facial ruling and offered no remedy the Board could grant. The Board also exercised its discretion to avoid an unnecessary constitutional decision before the case's other issues were resolved. It denied the interlocutory petition and allowed the administrative proceeding to continue.

Decision snapshot

• Cited authorities: 8 U.S.C. § 1101(a)(15)(H)(ii)(b); 28 U.S.C. § 1292(b)
• Outcome: Petition for interlocutory review denied; H-2B enforcement proceeding continues before the administrative judge.
• Key point: ALJ certification does not require the Board to accept an interlocutory appeal, especially where the requested relief would require a facial constitutional ruling outside its authority.

Full text (DOL official public release)

U.S. Department of Labor      Administrative Review Board
                              200 Constitution Ave. NW
                              Washington, DC 20210-0001




IN THE MATTER OF:


ADMINISTRATOR, WAGE AND HOUR              ARB CASE NO. 2025-0017
DIVISION, UNITED STATES
DEPARTMENT OF LABOR,                      ALJ CASE NO. 2024-TNE-00004
                                          ALJ LAUREN C. BOUCHER
            PROSECUTING PARTY,
                                          DATE: February 28, 2025
     v.

THE EDGEWOOD COMPANY,

            RESPONDENT.

Before WARREN and ROLFE, Administrative Appeals Judges

    DECISION AND ORDER DENYING INTERLOCUTORY APPEAL

PER CURIAM:

   This matter arises under the H-2B provisions of the Immigration and

Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(b), as amended, and its implementing regulations set forth at 20 C.F.R. Part 655, Subpart A, and 29 C.F.R. Part 503. While this case was pending before Administrative Law Judge (ALJ) Lauren C. Boucher, Respondent The Edgewood Company filed a Demand for Jury Trial, alleging that it was entitled to a jury trial under SEC v. Jarkesy. 1 On October 28,
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2024, the ALJ denied Respondent’s Demand. On November 27, 2024, Respondent filed a Petition for Review requesting that the Administrative Review Board (Board) review the ALJ’s denial. On December 18, 2024, the ALJ certified, at Respondent’s

1 603 U.S. 109 (2024).
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request, the issue of whether Respondent is entitled to a jury trial under the Seventh Amendment. 2 1F

   Pursuant to the authority delegated by the Secretary of Labor, the Board has

“the discretionary authority to review interlocutory rulings in exceptional circumstances, provided such review is not prohibited by statute.” 3 When2F

determining whether to accept an interlocutory appeal, the Board follows the procedures described in 28 U.S.C. § 1292(b). 4 Consideration of requests for
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interlocutory review is essentially a two-step process: (1) the ALJ must certify that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” and (2) when those elements are met, the Board then exercises its unfettered discretion in deciding whether to accept or reject the petition for review. 5 4F

   Respondent contends that the Board should grant its petition because it

received ALJ certification which “obviates the need for the ARB to consider review under the collateral order exception[.]” 6 Respondent further contends the ARB
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should grant its petition because, counter to the ALJ’s finding that she lacked the authority to consider the constitutionality of the H-2B statute and regulations, an “ALJ is not precluded from addressing issues that raise constitutional concerns.” 7 6F

   In a recent decision, we clarified that although the Board may consider as

applied constitutional challenges, the Board “may not . . . consider facial challenges to the ‘legality of a regulatory provision or the constitutionality of a statutory provision[.]’” 8 Indeed, the Board has long held it does not have the power to pass on
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the constitutional validity of the statutes and regulations it administers. 9 And the
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2 Order Granting Respondent’s Motion to Certify Controlling Question of Law for Interlocutory Review at 3. 3 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 4 Berg v. Nicholas Servs., LLC, ARB No. 2025-0027, ALJ No. 2023-AIR-00012, slip op. at 2 (ARB Jan. 31, 2025) (citing Kim v. SK Hynix Memory Sols., ARB No. 2020-0020, ALJ No. 2019-SOX-00012, slip op. at 3-4 (ARB Jan. 28, 2020)). 5 See Fagan v. Dep’t of the Navy, ARB No. 2023-0006, ALJ No. 2021-CER-00001, slip op. at 6 (ARB Apr. 6, 2023). 6 Respondent’s Response to ARB’s Order to Show Cause at 3. 7 Respondent’s Petition for Review at 4. 8 Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Next Level Sec. Serv., LLC, ARB No. 2024-0028, ALJ No. 2021-FLS-00009, slip op. at 6 n.27 (ARB July 31, 2024). 9 See, e.g., Minthorne v. Virginia, ARB No. 2009-0098, ALJ Nos. 2009-CAA-00004, - 00006, slip op. at 8-9 (ARB July 19, 2011) (observing that “it would be inappropriate for the 3

plain language of the Secretary’s delegation of authority confirms as much: “[t]he Board shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor[.]” 10
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   Although we categorically do not yet reach the merits of Respondent’s

argument, Respondent’s position at first blush does not appear to present an as applied constitutional argument that would allow us to navigate these waters. Neither the statute nor the regulations allow for jury trials; Respondent’s jury demand appears to necessarily imply that the H-2B statute and implementing regulations are inherently unconstitutional under Jarkesy and cannot be implemented as written. The limitation on the Board’s authority to pass on the facial constitutionality of the statues and regulations it administers -- and the broader prohibition against ruling on the validity of the Department’s appropriately promulgated regulations -- thus persuades us that accepting the appeal at this time would not appear to materially advance the ultimate termination of the litigation. 11 10F

  Regardless, and as a completely independent basis to deny the motion, the

Board’s authority to hear interlocutory appeals remains entirely discretionary. 12 11F

And, notably, a “fundamental and longstanding principle of judicial restraint

ARB to pass upon the constitutionality of the [Clean Air Act]. Thus we will presume the constitutionality of the act[.]”); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Overdevest Nurseries, L.P., ARB No. 2016-0027, ALJ No. 2015-TAE-00008, slip op. at 15 (ARB Mar. 15, 2018) (recognizing that a challenge to the validity of a regulation “is not properly before the Board.”). 10 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020). 11 Unlike the recent litigation regarding the inappropriate appointment of Department of Labor (DOL) ALJs after the Supreme Court issued Lucia v. S.E.C. 585 U.S. 237 (2018), Respondent’s position on this issue does not seem to allow for a remedy available to DOL ALJs or the Board. As the Fourth Circuit recently explained, such an available remedy creates the distinction between an as applied constitutional challenge and a facial constitutional challenge: “Both ALJs and the Board can hear such as-applied challenges. Both ALJs and the Board can grant the requested relief of reassignment to a different ALJ. And both ALJs and the Board did in fact grant that relief in ‘legions’ of other black lung cases when the Appointments Clause challenge was ‘properly raised.’” Edd Potter Coal Co., Inc. v. Director, OWCP, U.S. Dep’t of Lab., 39 F.4th 202, 211 (4th Cir. 2022) (citations omitted). By contrast, neither DOL ALJs nor the ARB have the authority to grant a jury trial. 12 See, e.g., Berg, ARB No. 2025-0027, slip op. at 3 (recognizing that that the Board exercises “unfettered discretion in deciding whether to accept or reject” a petition for interlocutory review.”); Fagan, ARB No. 2023-0006, slip op. at 6 (recognizing that the Board’s decision of whether to exercise its discretion to hear an interlocutory appeal is a prudential matter). 4

requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” 13 “This rule must bind not only the courts, but also the
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administrative agencies they review, for if it did not, such agencies, ‘by unnecessarily deciding constitutional issues, would compel the courts to resolve such issues as well.’” 14 The general rule against reaching broad constitutional
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questions when there may be other dispositive grounds to settle a dispute further persuades us that this is not the truly exceptional case that warrants ignoring our general practice to refuse piecemeal appeals, and to reserve judgment on this issue until (and if) it reaches us through the normal course of litigation. 15 As a matter of
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discretion, we thus further find that Respondent’s petition does not justify delaying the hearing below.

   We DENY Respondent’s Petition for Interlocutory Review.

   SO ORDERED.




                                  ____________________________________
                                  IVEY S. WARREN
                                  Administrative Appeals Judge



                                  _____________________________________
                                  JONATHAN ROLFE
                                  Administrative Appeals Judge

13 Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). 14 Gutierrez v. INS, 745 F.2d 548, 550 (9th Cir. 1984) (Kennedy, J.) (quoting Tung Chi Jen v. INS, 566 F.2d 1095, 1096 (9th Cir. 1977)). 15 See Gunther v. Deltek, Inc., ARB Nos. 2012-0097, -0099, ALJ No. 2010-SOX-00049, slip op. at 2 (ARB Sept. 11, 2012) (“[T]he Secretary of Labor and the Board have held many times that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals.”) (citations omitted).