Academic journal article Harvard Law Review

Standing - Federal Courts - D.C. Circuit Demonstrates Redundancy between the Competitor Standing Test and the Zone of Interests Test

Academic journal article Harvard Law Review

Standing - Federal Courts - D.C. Circuit Demonstrates Redundancy between the Competitor Standing Test and the Zone of Interests Test

Article excerpt


To bring a lawsuit, a plaintiff must have both constitutional and prudential standing. (1) Last Term, the Supreme Court clarified that the requirement that the plaintiff be within the "zone of interests" Congress intended to be protected by a given statute, which had previously been understood as a component of prudential standing on which a judge may exercise discretion, is better understood as a question of statutory interpretation. (2) Recently, in Mendoza v. Perez, (3) the D.C. Circuit held that would-be U.S. goat, sheep, and cattle herders compete with temporary foreign workers seeking visas as herders, and therefore have constitutional standing under the competitor standing doctrine (4) to challenge Department of Labor guidelines that allow foreign herders to obtain visas more easily than can other agricultural workers. (5) For the same reason, the court also held that the plaintiffs were within the zone of interests protected by the statute. (6) This decision demonstrates lingering ambiguity about the basis of the competitor standing doctrine, and the relationship between that doctrine and the zone of interests test. Specifically, if a competitor's standing stems from a statute protecting the competitor's economic interests, then the inquiry under the competitor standing test appears similar to the statutory inquiry required under the zone of interests test. Opacity regarding whether these two different tests evaluate the same statutory question invites unpredictability for litigants and judges. The courts should clarify the relationship between these two tests.

The Immigration and Nationality Act (7) (INA) allows some U.S. agricultural employers to hire temporary foreign workers if those employers first seek certification from the Department of Labor (Department). (8) This is known as the H-2A visa program. (9) The Department may only certify an employer as eligible to apply for an H-2A visa for a foreign worker if, first, "there are not sufficient [U.S.] workers ... able, willing, and qualified" to fill the position, and second, hiring temporary foreign workers "will not adversely affect the wages and working conditions" of "similarly employed" U.S. workers. (10) The Department has issued notice-and-comment rules establishing criteria for certifying employers (11) and has issued two Training and Employment Guidance Letters (TEGLs) regarding H-2A visas for goat, sheep, and cattle herders. (12) The TEGLs create separate H-2A certification processes and establish lower minimum wages and working-condition requirements for herding positions than for other agricultural positions. (13) These letters were not issued through notice-and-comment rulemaking. (14)

Reymundo Zacarias Mendoza and his three coplaintiffs--Francisco Javier Castro, Alfredo Conovilca Matamoros, and Sergio Velasquez Catalan--are lawful residents who are permitted to work in the United States. (15) Each plaintiff stated that he seeks work as a herder but is not currently in a herding job because of the "substandard" wages and poor working conditions. (16)

In October 2011, Mendoza and his coplaintiffs asked the District Court for the District of Columbia to set aside the TEGLs, alleging that they were "legislative rules," which must be promulgated in accordance with the Administrative Procedure Act's (APA's) notice-and-comment procedures. (17) Two trade associations, whose members are employers who use H-2A visas, intervened on behalf of the Department and moved to dismiss the suit for lack of subject matter jurisdiction, alleging that the plaintiffs had no standing to sue. (18) All parties then moved for summary judgment. (19)

The district court dismissed the suit for lack of subject matter jurisdiction, holding that the plaintiffs did not have constitutional or prudential standing. …

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