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Trabajadores Agrícolas v. Solis

August 30, 2010


The opinion of the court was delivered by: Pollak, J.


Plaintiffs Comité de Apoyo a los Trabajadores Agrícolas ("CATA"), Pineros y Campesinos Unidos del Noroeste ("PCUN"), Alliance of Forest Workers and Harvesters ("the Alliance"), and Salvador Martinez Barrera challenge various regulations concerning the H-2B worker program promulgated in concurrent rulemakings by two defendant federal agencies, the Department of Labor ("DOL") and the Department of Homeland Security ("DHS"). The case is now before this court on the parties' cross-motions for summary judgment (docket nos. 49 & 56). Also pending are (1) plaintiffs' motion to supplement the administrative record and take judicial notice (docket no. 48), and (2) plaintiffs' request for a preliminary injunction (docket no. 58).

I. Factual Background

The regulations at issue in this case, which took effect on January 18, 2009, deal with so-called H-2B workers. As defined by the Immigration and Nationality Act ("INA"), an H-2B worker is an alien who "ha[s] a residence in a foreign country which he has no intention of abandoning who is coming to the United States to perform [non-agricultural] temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii)(b).*fn1

The INA provides the Attorney General with authority to issue regulations concerning the admission of H-2B workers to the United States. See id. § 1184(a)(1). In particular, the INA mandates that "[t]he question of importing any alien as a nonimmigrant under subparagraph (H). . . (excluding non-immigrants under section 1101(a)(15)(H)(i)(b1) . . . ) in any specific case or specific cases shall be determined by the Attorney General, after consultation with appropriate agencies of the Government [including DOL] upon petition of the importing employer." Id. § 1184(c)(1). The Homeland Security Act of 2002 transferred this authority from the Attorney General to the Secretary of Homeland Security. See 6 U.S.C. § 236(b).

DOL also plays a key role in the admission of H-2B workers. Pursuant to 8 C.F.R. § 214.2(h)(6)(iii)(A), "[p]rior to filing a petition . . . to classify an alien as an H-2B worker, the [petitioning employer] shall apply for a temporary labor certification with the Secretary of Labor." This certification constitutes "advice . . . on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers." Id. DHS, meanwhile, possesses the statutory authority to sanction "substantial failure[s by employers] to meet any of the conditions of the petition to admit or otherwise provide status to a nonimmigrant worker . . . or a willful misrepresentation of a material fact in such petition." 8 U.S.C. § 1184(c)(14)(A). The Secretary of DHS has delegated this authority in part to the United States Customs and Immigration Service ("USCIS"). See Defs.' Mem. at 6. DHS's authority was, however, partially delegated to DOL pursuant to DHS's 2009 rules and in accordance with 8 U.S.C. § 1184(c)(14)(B).*fn2

The DOL procedures governing H-2B applications have historically been different, and less formal, than the procedures addressing H-2A agricultural applications under 8 U.S.C. § 1101(a)(15)(H)(ii)(a); until 2009, DOL has regulated H-2B applications via a series of General Administration Letters ("GALs") and Training and Employment Guidance Letters ("TEGLs"), which were promulgated without notice and comment. See Pls.' Mem. at 4-5; Defs.' Mem. at 6. Under that prior regime, in order to receive DOL certification, employers submitted applications for H-2B workers to the applicable State Workforce Agency ("SWA"). Pls.' Mem. at 5; Defs.' Mem. at 7. Under the most recent TEGL, issued in 2006, an employer's application had to include, inter alia, (1) "[d]ocumentation of any efforts to advertise and recruit U.S. workers prior to filing the application," (2) "[a] detailed statement explaining (a) why the job opportunity and number of workers being requested reflect a temporary need, and (b) how the employer's request . . . meets one of the standards of a one-time occurrence, a seasonal need, a peakload need, or an intermittent need," and (3) "[s]supporting evidence and documentation that justifies the chosen standard of temporary need." A 148.*fn3

In reviewing the application, the SWA would "determine the prevailing wage." Id. at 149. Before 2005, prevailing wage determinations were primarily made under the Davis-Bacon Act ("DBA"), 40 U.S.C. §§ 276a et seq., and McNamara-O'Hara Service Contract Act ("SCA"), 41 U.S.C. § 351, but a 2005 wage guidance letter, issued by DOL without notice and comment, altered the policy such that, in the absence of any applicable collective bargaining agreement ("CBA"), DOL's main source of data became the Occupational Employment Statistics ("OES") Survey. Pls.' Mem. at 6-7. Employers were also allowed to submit their own data, including DBA and SCA wage rates. See A 79.

The SWA's review extended to other issues as well. "If the job offer [was] less than full-time, offer[ed] to pay a wage below the prevailing wage, contain[ed] unduly restrictive job requirements or a combination of duties not normal to the occupation, or ha[d] terms and conditions of employment which otherwise inhibit[ed] the effective recruitment . . . of U.S. workers . . ., or [was] otherwise unacceptable, the SWA . . . advise[d] the employer to correct the deficiencies." Id. at 150. Below-prevailing wage applications could also not be accepted. Id. at 149. If the offer passed muster, the SWA would recruit U.S. workers for the job by (1) placing it into its "job bank system for 10 calendar days," (2) referring "qualified applicants" to the posting, and (3) instructing the employer to "advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication." Id. at 150. As part of domestic recruitment efforts, employers were also required to contact "union and other recruitment sources, appropriate for the occupation and customary in the industry" and to show that these sources were "either unable to refer qualified U.S. workers or [were] non-responsive to the employer's request." Id.

In addition, the SWA would forward all of the appropriate information to a DOL certifying officer, who would "determine whether there are other appropriate sources of workers from which the employer should have recruited." Id. at 151. The certifying officer further decided to certify or reject the application, based on whether (1) "[t]he nature of the employer's need is temporary," (2) "[q]ualified U.S. workers are available," (3) U.S. workers' "wages and working conditions" would be "adversely affect[ed]," and (4) "[t]he job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment." Id. at 151-52. The certifying officer's decision was "the final decision of the Secretary of Labor" and could not be appealed within DOL, but was "advisory to the USCIS." Id. at 153. The employer could then "submit countervailing evidence directly to the USCIS" to challenge DOL's decision. Id.

On May 22, 2008, DOL issued a notice of proposed rulemaking ("NPRM") concerning the certification process for the H-2B program, citing as justification for the proposed changes its workload and descriptions of the existing process "as complicated, time-consuming, inefficient, and dependent upon the expenditure of considerable resources by employers." 73 Fed. Reg. 29942, 29944 (May 22, 2008). Comments were due on July 7, 2008. See Pls.' Mem. at 7 (citing a refusal to extend that deadline). The new regulations were published on December 19, 2008. See 73 Fed. Reg. 78020 (Dec. 19, 2008). Meanwhile, DHS promulgated an NPRM regarding H-2B visas on August 20, 2008. See 73 Fed. Reg. 49109 (Aug. 20, 2008). DHS's new regulations also became final on December 19, 2008. See 73 Fed. Reg. 78104 (Dec. 19, 2008).

The new regulations contain numerous significant changes from the prior regime. For instance, a DOL certification must now accompany petitions for the admission of H-2B workers, and although the new regulations create an intra-DOL appeals process, there is no external procedure for challenging the denial of a certification by DOL. See 8 C.F.R. § 214.2(h)(6)(iv)(A); 20 C.F.R. § 655.33(a). Moreover, the centerpiece of the certification process is no longer an SWA assessment but rather an attestation filed by the employer stating that it has fulfilled the processes and obligations imposed on it by the regulations. 20 C.F.R. § 655.15(b). Attestations must generally be filed by each employer, but where a job contractor is involved, DOL's practice allows the contractor -- and not the employers who will utilize H-2B labor -- to file for a certification. See Defs.' Mem. at 50.

As part of the attestation process, employers must, inter alia, (1) maintain a job posting with the relevant SWA for ten days, (2) run a newspaper advertisement on two days, including one Sunday, in a local, general-circulation newspaper (unless another sort of publication "is the most likely source to bring responses"), and (3) contact the applicable union if a collective bargaining agreement covers the job. 20 C.F.R. §§ 655.15(d)(2)-(4), (e), & (f). Employers are also required to attest that, among other things, "[t]he job opportunity is a bona fide, full-time temporary position." Id. § 655.22(h). "Full-time" is defined as "30 or more hours per week," unless a state or industry defines full-time at "less than 30 hours per week," id. § 655.4, and "temporary" is defined (by DHS) as a "period of time . . . limited to one year or less, [except that] in the case of a one-time event [the period] could last up to 3 years," 8 C.F.R. § 214.2(h)(6)(ii)(B). The prevailing wage rate, meanwhile, is (1) generally tied to the OES survey data, as it has been since 2005, and (2) set, in the absence of a CBA, to "the arithmetic mean . . . of the wages of workers similarly situated at the skill level in the area of intended employment."

20 C.F.R. § 655.10(b)(2).

DOL "will grant the application if and only if the employer has met all the requirements" of the attestation process. Id. § 655.32(b). DOL also has the authority to "conduct audits of H-2B temporary labor certification applications." Id. § 655.24(a). Violations of the certification or audit processes can result in exclusion from the program. Id. §§ 655.24(d), 655.31.

Plaintiffs challenge seven aspects of the new regulations under the Administrative Procedures Act ("APA"). This court must, however, first consider two jurisdictional issues raised by defendants.

II. Jurisdictional Issues

Defendants argue that (1) plaintiffs do not have standing to sue, and (2) the contested decisions are committed to agency discretion by law.

A. Standing

"Standing implicates both constitutional requirements and prudential concerns." Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). Constitutional standing includes three elements: "'(1) an injury in fact (i.e., a concrete and particularized invasion of a legally protected interest); (2) causation (i.e., a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is likely and not merely speculative that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit).'" Common Cause of Pa., 558 F.3d at 257 (quoting Sprint Commc'ns Co. v. APCC Servs., Inc., 128 S.Ct. 2531, 2535 (2008)). An injury-in-fact is "a palpable and distinct harm" that "'affect[s] the plaintiff in a personal and individual way.'" Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 138 (3d Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). To satisfy the causation prong, "[t]he plaintiff must establish that the defendant's challenged actions, not the actions of some third party, caused the plaintiff's injury." Id. at 142. And the redressability prong "looks forward" to determine whether there is "a 'substantial likelihood'" that the injury in fact can be remedied by a judicial decision. Id. at 143 (quoting Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771 (2000)). "'The party invoking federal jurisdiction bears the burden of establishing these elements,'" and, on summary judgment, "cannot rely on mere allegations 'but must set forth by affidavit or other evidence specific facts'" demonstrating that these requirements have been met. Joint Stock Soc'y v. UDV N. Am., Inc., 266 F.3d 164, 175 (3d Cir. 2001) (quoting Defenders of Wildlife, 555 U.S. at 561) (internal citation omitted).

Prudential standing, meanwhile, "'require[s] that (1) a litigant assert his [] own legal interests rather than those of third parties, (2) courts refrain from adjudicating abstract questions of wide public significance which amount to generalized grievances, and (3) a litigant demonstrate that her interests are arguably within the zone of interests intended to be protected by the statute, rule, or constitutional provision on which the claim is based." Oxford Assocs. v. Waste Sys. Auth. of E. Montgomery County, 271 F.3d 140, 146 (3d Cir. 2001) (quoting Davis v. Phila. Hous. Auth., 121 F.3d 92, 96 (3d Cir. 1997)).

"[A]n association has standing to bring suit on behalf of its own members" if either (1) the association itself satisfies the constitutional and prudential requirements, or (2) three conditions are met: "(a) [the association's] members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). In order to meet the first prong of this test -- which, like the second prong, is constitutional, see United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555-56 (1996) -- organizational plaintiffs must "identify members who have suffered the requisite harm," Summers v. Earth Island Institute, 129 S.Ct. 1142, 1152 (2009). The third prong, which is prudential, Brown Group, 517 U.S. at 556, will generally be satisfied "'[i]f in a proper case the association seeks a declaration, injunction, or some other form of prospective relief.'" Pa. Psychiatric Soc'y v. Green Spring Health Servs., Inc., 280 F.3d 278, 284 (3d Cir. 2002) (quoting Hunt, 432 U.S. at 343).

(1) PCUN

According to its president, Ramon Ramirez, plaintiff PCUN is "a union that represents the interests of its member workers in reforestation and in agriculture." Ramirez decl. ¶ 3. Because PCUN as an organization has suffered no harm from the regulations at issue, the initial question to be determined is whether PCUN's "members would otherwise have standing to sue in their own right." Hunt, 432 U.S. at 343. According to Ramirez, (1) some of PCUN's members "are subject to regulation under the H-2B program" and are "in competition . . . with workers who are admitted . . . under the H-2B program," and, (2) their "wages, . . . working conditions, and . . . ability to obtain and retain jobs" have, as a result, been adversely affected by the new H-2B regulations. Ramirez decl. ¶ 8. This states an injury in fact, and one which Ramirez's declaration states is caused by the new regulations. See id. ¶ 10. The traceability prong is further satisfied by the declaration of Ismael Perez, a PCUN member, who states that between 1999 and 2008, his family reforestation business was successful, but that since then, the business "ha[s] not been able to win any contracts," losing out to "contractors [who] use [H-2B] workers." Perez decl. ¶¶ 5-6. Given that PCUN seeks the invalidation of the new regulations that caused their injury, the redressability prong is met.*fn4 So, too, is the requirement that PCUN proffer an individual member who has suffered harm: Perez's declaration establishes that his family business has lost contracts and work to employers who use H-2B workers at the wages and conditions available under the new regulations. See id. ¶¶ 5-8, 10-11.

PCUN's members also would have prudential standing to challenge the regulations. They would be litigating their own interests, and would not be litigating generalized grievances, in that their injuries are economic ones specifically borne by U.S. workers in the same industries as H-2B workers. It is uncontested, meanwhile, that Perez and PCUN's other U.S. resident members fall within the zone of interests protected by the INA. See, e.g., Int'l Longshoremen's & Warehousemen's Union v. Meese, 891 F.2d 1374, 1379 (9th Cir. 1989) ("A primary purpose of the immigration laws . . . is to protect American laborers."). In short, PCUN has satisfied the first prong of Hunt.

According to Ramirez, PCUN "represent[s] the interests of its [individual] members in reforestation work" and "temporary work in other industries" "to improve their wages and working conditions." Ramirez decl. ¶¶ 4, 6. Because PCUN's members "are in competition or face competition for jobs with workers who are admitted for temporary employment under the H-2B program," id. ¶ 5, PCUN's asserted interest in "challenging the actions of [DOL] with respect to the H-2B program" that it believes adversely affect its members' wages and working conditions, id. ¶ 10, is "germane to the organization's purpose," Hunt, 432 U.S. at 343. Further, the relief PCUN and the other plaintiffs seek -- the invalidation of certain portions of the 2009 DOL and DHS regulations -- is prospective in nature, and defendants do not argue that this remedy would not "inure to the benefit of [any] members of the association actually injured."

Pa. Psychiatric Soc'y, 280 F.3d at 284 (internal quotation marks omitted). PCUN therefore satisfies the second and third prongs of the Hunt test, and it has standing to bring this challenge.

(2) The Remaining Plaintiffs

Because "the presence of one plaintiff with standing is sufficient to satisfy that requirement," Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219, 228 n.7 (3d Cir. 2004) (citing Bowsher v. Synar, 478 U.S. 714, 721 (1986)), rev'd on other grounds, 547 U.S. 47 (2006), I do not consider whether the remaining plaintiffs have standing to sue.*fn5

B. Agency Discretion

The Administrative Procedure Act ("APA") "establish[es] a broad presumption in favor of [judicial] reviewability" of administrative actions. Davis Enters. v. Envt'l Protection Agency, 877 F.2d 1181, 1184-85 (3d Cir. 1989) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)). Narrow exceptions to this rule prevent judicial review, however, where (1) such review is expressly prohibited by statute, or (2) "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). The second exception applies where there are "no judicially manageable standards . . . available for judging how and when an agency should exercise its discretion," Heckler v. Chaney, 470 U.S. 821, 830 (1985), which is to say that "'there is no law to apply,'" Webster v. Doe, 486 U.S. 592, 599 (1988) (quoting Overton Park, 401 U.S. at 410).

Courts in this circuit consider three factors in determining whether there is law to apply: whether the action (1) "involves broad discretion, not just the limited discretion inherent in every agency action," (2) "is the product of political, military, economic, or managerial choices that are not readily subject to judicial review," and (3) "does not involve charges that the agency lacked jurisdiction, that the decision was motivated by impermissible influences such as bribery or fraud, or that the decision violates a constitutional, statutory, or regulatory command." Davis Enters., 877 F.2d at 1185. In determining the scope of the agency's discretion, "agency regulations or internal policies [may] provide sufficient guidance to make possible federal review . . . even absent express statutory limits on agency discretion." Id.; accord Raymond Proffitt Found. v. U.S. Army Corps of Eng'rs, 343 F.3d 199, 206 (3d Cir. 2003). A "list[ of] factors the agency must consider in reaching a decision" sufficiently cabins agency discretion to allow for meaningful review. Davis Enters., 877 F.2d at 1186.

In this case, DHS's governing regulations do contain judicially manageable standards to apply in evaluating DOL's actions. Specifically, pursuant to 8 C.F.R. § 214.2(h)(6)(iv)(A), DOL certifications must "stat[e] that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers." This language provides two specific "factors the agency must consider in reaching a decision," Davis Enters., 877 F.2d at 1186, and also indicates that a prime purpose of DOL's certification is to protect U.S. workers. No more is needed to conclude that DOL's discretion is narrow enough to allow for meaningful judicial review. See, e.g., Int'l Longshoremen's & Warehousemen's Union, 891 F.2d at 1379 (holding that "Congress' enunciated purpose to protect American jobs" provided "law to apply").

As to the second Davis Enterprises factor, neither the issue of whether or not American workers are available nor the question of whether wages and working conditions have been affected involves complex, technical issues. Moreover, that these questions may be partially economic in nature is irrelevant: "where there is a specific statutory directive, such as that the benefits of a project exceed its cost, the matter has been held to be judicially reviewable" even when economics is involved. Local 2855, AFGE v. United States, 602 F.2d 574, 580 n.13 (3d Cir. 1979). And because this case does, in part, involve claims that DOL's "decision violates a constitutional, statutory, or regulatory command," Davis Enters., 877 F.2d at 1185, the third Davis factor also presents no bar to judicial review.*fn6

This court accordingly has jurisdiction to consider plaintiffs' challenges.

III. The Merits

Pursuant to the APA, "the reviewing court" must "hold unlawful and set aside agency action, findings, and conclusions" that are, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "Judicial review [under the APA] focuses on the agency's decision making process[,] not on the decision itself," NVE, Inc. v. Dep't of Health & Human Servs., 436 F.3d 182, 190 (3d Cir. 2006); thus, "a court is not to substitute its judgment for that of the agency," Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks omitted). "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. "[A]n agency rule would [normally] be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id.

A. Recruitment Regulations

Plaintiffs' first challenge is to the portions of DOL's new regulations that "determin[e] when 'unemployed persons capable of performing such service or labor cannot be found in this country.'" Pls.' Mem. at 11 (quoting 8 U.S.C. § 1101(a)(15)(H)(ii)(b)). Plaintiffs argue that various aspects of these recruitment regulations (1) violate the INA and controlling DHS regulations, (2) are arbitrarily different from the regulations governing H-2A agricultural workers, and (3) include changes that were made in the absence of any reasoned explanation.

(1) Searches for U.S. Workers and the INA

Subsection (H)(ii)(b) defines an H-2B workers as someone who "ha[s] a residence in a foreign country which he has no intention of abandoning who is coming to the United States to perform [non-agricultural] temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country." Plaintiffs read this section as requiring a national -- as opposed to local -- search for available American workers, and they argue that DOL's revised regulations, which require recruitment only in "the area of intended employment," 20 C.F.R. §§ 655.15(e) & (f), violate that statutory command.

At argument in this case, both parties analyzed this issue under the two-step procedure in Chevron, U.S.A, Inc. v. NRDC, 467 U.S. 837 (1984).*fn7 Pursuant to Chevron, this court must first determine "whether Congress has directly spoken to the precise question at issue." Id. at 842. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If, by contrast, "Congress has not directly addressed the precise question at issue," the question becomes "whether the agency's answer is based on a ...

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