In re Hacker (agency decision, May 29, 2026)

Plain-English summary

Rachel Hacker asked the Administrative Review Board to review a Wage and Hour Division letter declining to accept information about alleged H-2B violations by Whitepine Forestry. The ARB ordered her to explain why the matter was within its jurisdiction and ripe for review, but she did not file the required brief. The Board concluded that the letter was not a reviewable WHD enforcement determination under the H-2B regulations. It dismissed the case.

Decision snapshot

• Cited authorities: 29 C.F.R. §§ 503.24, 503.40(a), 503.41(a), and 503.43(a)
• Outcome: The ARB dismissed the case because no reviewable WHD enforcement determination existed.
• Key point: The ARB's H-2B jurisdiction covers specified enforcement determinations, not a WHD decision declining to accept information as a complaint.

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:


 RACHEL HACKER,                                 ARB CASE NO. 2026-0032

              PETITIONER,                       DATE: May 29, 2026


Before BURRELL and KIKO, Administrative Appeals Judges


                             DECISION AND ORDER

       On April 9, 2026, the Administrative Review Board (Board) received a letter
from Petitioner Rachel Hacker in which she asserted that she was appealing a
March 3, 2026 letter she received from the Portland District Office of the U.S.
Department of Labor’s (DOL) Wage and Hour Division (WHD). The WHD letter
conveyed to Petitioner that information she had submitted to the Portland District
Office of WHD did not meet the requirements for acceptance as a complaint and
that the Portland District Office declined to take further action “after careful
consideration of [its] mission, priorities, and resources.” Petitioner’s letter to the
Board indicates that Petitioner had provided information to the District Office that
Whitepine Forestry, Inc. violated H-2B requirements, including the duty to recruit
and hire available U.S. workers.

      On April 23, 2026, the Board issued an Order to Show Cause in which it
ordered Petitioner to file a written brief within fourteen calendar days explaining
why the Board had the authority to hear the issues raised in Petitioner’s letter and
why the matter was ripe for review. The Order to Show Cause stated that the Board
may not have jurisdiction in this matter and explained that the Board’s jurisdiction

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is limited to statutes and authorities delegated by the Secretary of Labor.1 It also
explained that in the H-2B context, the Board’s jurisdiction is limited to appeals in
certain procedural postures, including reviewing Administrative Law Judge
decisions in appeals of enforcement determinations made by the WHD.2 The Board
further warned Petitioner that failure to timely respond to the Order to Show Cause
could result in the dismissal of this matter.

       To date, Petitioner has failed to file a written brief as ordered in the Order to
Show Cause. Without additional information or argument from Petitioner and in
view of the regulations applicable to H-2B appeals, we conclude the Board lacks
jurisdiction here. The H-2B regulations “prescribe the administrative appeal
process that will be applied with respect to a determination to assess civil money
penalties, to debar, to enforce provisions of the job order or provisions under 8 U.S.C.
1184(c), 20 CFR part 655, subpart A, or the regulations in this part, or to the
collection of monetary relief due as a result of any violation.”3 The regulations
further state that “[a]ny party desiring review of a determination issued under
§ 503.41, including judicial review, must make a request for such an administrative
hearing in writing to the Chief ALJ at the address stated in the notice of
determination . . . .”4 A reviewable determination issued under 29 C.F.R. § 503.41 is
described as one which is reached “[w]henever the Administrator, WHD decides to
assess a civil money penalty, to debar, or to impose other appropriate administrative
remedies . . . .”5




1      Order to Show Cause at 2 (citing Secretary’s Order No. 01-2020 (Delegation of
Authority and Assignment of Responsibility to the Administrative Review Board), 85 Fed.
Reg. 13186 (Mar. 6, 2020); Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Five M’s, LLC,
ARB No. 2019-0014, ALJ Nos. 2015-FLS-00010, -00011, slip op. at 14 (ARB Nov. 13, 2020)
(“The Board was created by delegation from the Secretary of Labor and, therefore, has a
limited and defined jurisdiction and scope of authority.”)).
2     Order to Show Cause at 2 (citing 29 C.F.R. §§ 503.24, .51-.55).
3     29 C.F.R. § 503.40(a) (emphasis added).
4     29 C.F.R. § 503.43(a) (emphasis added).
5      29 C.F.R. § 503.41(a) (emphasis added)

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       As there is no such determination from WHD here, this matter is not subject
to the Board’s review.6

                                       CONCLUSION

       For the foregoing reasons, we DISMISS this case.

       SO ORDERED.




                                   THOMAS H. BURRELL
                                   Administrative Appeals Judge




                                   PHILIP G. KIKO
                                   Administrative Appeals Judge




66     We have also previously noted that “an agency’s decision not to prosecute or enforce,
whether through civil or criminal process, is a decision generally committed to an agency’s
absolute discretion.” See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Wash. Farm Lab.
Ass’n, ARB No. 2021-0069, ALJ No. 2018-TAE-00013, slip op. at 20-21 (ARB Mar. 31, 2023)
(quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)) (remaining citations omitted).