Legal Affairs Counsel’s Corner: DOL's Rehearing Request Denied by Circuit Court

Seso's Barron Dickinson breaks down key policy updates for October 2025.

Third Circuit Declines to Reconsider Ruling Which Outlawed DOL’s Use of In-House ALJs to Adjudicate Appeals of Fines and Back Wage Awards in H-2A Enforcement Cases

On October 15, 2025, the Third Circuit Court of Appeals in Sun Valley Orchards LLC v. DOL,   issued an Order denying the U.S. Department of Labor’s (DOL) petition for rehearing en banc, which requested the court to reconsider its recent Opinion. This opinion had concluded that the DOL’s use of in-house administrative law judges (ALJ) employed by Office of Administrative Law Judges (OALJ) to adjudicate appeals of H-2A enforcement actions that include assessments of civil monetary penalties and back wages, violates H-2A employers’ right to a jury trial before an Article III court under the Seventh Amendment. The court’s rejection of DOL’s rehearing request effectively renders the case final because none of the other ten circuits have issued a conflicting decision to date which is one of the biggest hurdles that must be overcome before the U.S. Supreme Court (SCOTUS) will agree to take up the issue. As circuit splits are estimated to represent about 70% of its annual case docket, it is highly unlikely that SCOTUS will disturb the Third Circuit’s decision even if DOL were to seek an appeal.

This latest development is a major win for H-2A employers and signifies a massive blow to DOL’s longstanding use of an in-house ALJ appeal system which H-2A employers have consistently criticized as too agency friendly and lacking fundamental due process protections that federal courts offer. For example, federal court judges are not afraid to impose sanctions and awards of attorneys’ fees and costs against government agencies, like the EEOC, when the circumstances warrant such action. Conversely, DOL ALJs have consistently declined to award H-2A employers their fees and costs despite prevailing in appeals that often stretch on for years and DOL engaging in litigation tactics found to be “egregious and violated the element of fairness.” 

While the Third Circuit’s decision currently only extends to H-2A employers located in the states of New Jersey, Pennsylvania, and Delaware, employers have already begun citing it in support of jury trial demands in pending appeals pending before OALJ. To date, no ALJ appears to have ruled on this issue which is likely attributable to the fact that OALJ is currently closed due to the ongoing government shutdown. However, even if ALJs decline to extend Sun Valley Orchards to employers located outside the Third Circuit, it is anticipated that federal courts would likely be asked to intervene and provide injunctive relief from the OALJ appeals moving forward. 

Takeaway: While the Sun Valley Orchards case has arguably taken a backseat to the recent regulatory reforms released early this month by DOL and the Department of Homeland Security, employers will want to keep an eye on how this issue plays out in their own circuit with the 2026 season on the horizon. To be clear, employers should not interpret this decision as granting them license to disregard H-2A program rules. As a reminder, DOL still has the ability to bring pure debarment actions against all employers, even those in the Third Circuit, and continue litigating the appeals before OALJ. 

For more insight into what this means for H-2A employers and potential action items, we recommend reviewing this article co-authored by Seso legal advisor, Chris Schulte of Fisher Phillips. 

National Firestorm Regarding CDL Truck Driving By Undocumented Immigrants Rages On Setting Up Showdown in Federal Court

On October 20, 2025, two of the largest public sector labor unions, AFSCME and AFT, filed a petition with the D.C. Circuit Court of Appeals requesting review of the interim final rule recently published by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) entitled “Restoring Integrity to the Issuance of Non-Domiciled Commercial Drivers Licenses (CDLs)” on September 20, 2025. In a press release that accompanied the filing of the petition, AFSCME and AFT claimed that the new rule threatens the livelihoods of nearly 200,000 people, including asylum seekers, refugees, and Deferred Action for Childhood Arrivals (DACA) recipients who have work authorization because such individuals are barred from holding commercial driver’s licenses based on their immigration status. The unions assert CDLs are necessary for truck drivers, bus drivers, and delivery drivers, among others, which are included in the bargaining units they represent. According the unions, the petition will challenge both the substance of the rule and FMCSA’s alleged failure to follow rulemaking procedures required by law including a notice and comment period before the rule taking effect. 

FL Attorney General Files Suit Against States of CA and WA for Issuing CDLs to Undocumented Truck Drivers

On October 16, 2025, Florida Attorney General James Uthmeier filed a proposed lawsuit with the U.S. Supreme Court that seeks to prevent the states of California and Washington from issuing commercial truck driver licenses to undocumented immigrants. This lawsuit follows a fatal August crash on Florida's Turnpike involving an undocumented driver licensed in both states that received widespread media coverage. The Florida AG’s lawsuit alleges that CA and WA have not complied with federal safety and immigration requirements, leading to "negligence and willful disregard of federal licensing standards" that pose a "public nuisance." 

The lawsuit needs approval from the Supreme Court in order to move forward because it deviates from the usual route of going through federal district courts. The issue has gained national attention, with the U.S. Department of Transportation recently announcing its decision to withhold $40 million dollars in federal funding from CA for not enforcing English-language proficiency for commercial truck drivers. 

Newly Introduced Federal & State Legislation Mirrors FMCSA’s Rule on CDL Truck Driving

The filing of this proposed lawsuit is the latest development in a series of legislative measures being pursued at both the federal and state level aimed at cracking down on commercial trucks driven by undocumented workers. On October 2, 2025, a group of 18 Republican lawmakers introduced a new bill (H.R. 5688) titled the “Non-Domiciled CDL Integrity Act” which essentially seeks to codify FMCSA’s recent interim final rule that bars the issuance of CDLs to foreign workers without lawful immigration status and “only those H2A, H2B, and E2 visas would be eligible under this legislation, leaving approximately only 5,000 non-domicile drivers nationwide.” The bill’s text provides, in relevant part, that: 

Under regulations prescribed by the Secretary, the State may issue a commercial driver’s license to an individual who operates or will operate a commercial motor vehicle and is domiciled in a foreign jurisdiction, if …  the individual possesses a visa determined by the Secretary to be directly connected to a legitimate, employment-based reason to hold a commercial driver’s license.

According to press statement released by the bill’s sponsor, “This bill, developed directly with the Trump Administration, would eliminate nearly 98% of Non-Domiciled CDL issuance moving forward (of the estimated 200,000 Non-Domiciled CDL drivers out there, approximately 195,000 would have been ineligible under this legislation). Illegal immigrants, including those who have attained work authorizations from states, would be ineligible under this legislation.”

Whether the bill will ultimately gain traction with Congress is yet to be seen. However, there is a general consensus at this time that it is unlikely to receive bipartisan support and almost assuredly will be the subject of legal challenges even if enacted. 

Similarly, at the state level, Florida State Senator Don Gaetz filed a bill (SB 86) in late-September, which would implement more stringent regulations and harsh penalties against “unauthorized aliens” operating commercial motor vehicles. Under the proposed bill, Florida law enforcement officers would be authorized to take an "unauthorized alien" into custody and coordinate their transfer with federal immigration authorities, such as U.S. Immigration and Customs Enforcement, in accordance with federal law. Additionally, any commercial vehicle operated by the unauthorized alien would be subject to impoundment.

The bill also outlines substantial financial penalties for the owner of an impounded vehicle, including a $50,000 fine payable to the Florida Department of Highway Safety and Motor Vehicles, along with all associated impoundment costs and fees, including notification expenses. Furthermore, motor carriers that own, lease, or operate a commercial motor vehicle driven by an unauthorized alien taken into custody would face a ban on conducting any future business in Florida. The bill, if passed, would take effect on July 1, 2026. 

Takeaway: Employers who utilize H-2A and H-2B workers to perform truck driving-related job duties in Florida should be prepared for increased law enforcement activity and educate their workers about how to navigate potential traffic stops by law enforcement agencies. For more information on regulatory updates involving H-2 truck driving, please review our recent blog posts, including FMCSA’s Interim Final Rule on Non-Domiciled Commercial Driver’s License Holders and English Proficiency Requirements for Commercial Truck Drivers: What Employers Need to Know.