UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 24, 2010
COMIT&EACUTE; DE APOYO A LOS TRABAJADORES AGR&IACUTE;COLAS, ET AL., PLAINTIFFS,
SOLIS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Pollak, J.
As discussed more fully in this court's August 30, 2010 opinion and order (docket nos. 80, 81), the plaintiffs in this case challenged various regulations concerning the H-2B worker program. The relief I granted included an order remanding, without vacatur, certain portions of 20 C.F.R. § 655.10(b)(2) (2010). That regulation dictates the manner in which prevailing wage determinations ("PWDs") for H-2B workers are calculated. I ordered the Department of Labor ("DOL") to promulgate new rules concerning prevailing wage calculations within 120 days-i.e., by no later than December 28, 2010.
On September 10, 2010, plaintiffs filed a Motion to Add Additional Relief under Federal Rule of Civil Procedure 59(e) (docket no. 82).*fn1 On October 27, 2010, in docket no. 94, I denied that motion in part, leaving one aspect of the motion to be addressed later. In the portion of the motion I dealt with, I declined to vacate the wage regulations and I clarified that the 120-day deadline was for publication of new rules, not for the effective date of new rules. In a supplemental response to the Rule 59(e) motion (docket no. 93), the DOL had requested a 30-day extension. I granted this request in part, and extended the deadline by 21 days, to January 18, 2011.
This opinion addresses the final component of plaintiffs' Motion to Add Additional Relief, in which they ask this court to order the DOL to issue conditional certifications to employers seeking to hire H-2B workers. Specifically, plaintiffs ask this court to prohibit DOL from issuing an H-2B labor certification unless and until the employer agrees to pay a prevailing wage set by the new methodology as soon as that methodology becomes effective.*fn2 Plaintiffs argue that this relief is necessary to prevent a "manifest injustice" because, absent such relief, employers who obtain PWDs prior to the effective date of the new regulations would continue paying wages derived from an invalid wage rate, even after the new regulations take effect.
Under plaintiffs' proposed relief, the DOL would continue to issue PWDs and labor certifications under the invalid methodology, but as soon as the new rules are effective, previously-certified employers would be required to obtain (and pay) a new PWD. The DOL asserts that this relief would force it to violate its own regulations, and the DOL primarily points to 20 C.F.R. § 655.10(d) (2010), which states in full:
Validity period. The NPC [National Processing Center] must specify the validity period of the prevailing wage, which in no event may be more than 1 year or less than 3 months from the determination date. For employment that is less than one year in duration, the prevailing wage determination shall apply and shall be paid the prevailing wage [sic] by the employer, at a minimum, for the duration of the employment.
The DOL contends that this provision precludes the DOL from requiring employers to pay a higher wage because it mandates that an employer "shall" pay the PWD "for the duration of employment." The DOL appears to argue that the provision sets both a floor and a ceiling on the wage to be paid "for the duration of employment." But this construction glosses over the phrase "at a minimum," which manifestly sets a floor and not a ceiling.*fn3 Nothing in § 655.10(d), nor any related regulation,*fn4 prevents the DOL from devising interim measures to reduce the impact of the deficient methodology. Thus an employer must pay a valid wage for the duration of employment, but it does not follow that an employer must continue paying that wage after it has been deemed to be the product of an invalid regulation.
In sum, nothing in the regulations precludes the DOL from issuing conditional certifications.
The DOL contends that its interpretation is entitled to deference because the DOL is interpreting its own regulations. But this court does not owe deference when, as in this case, the agency's interpretation is "'plainly erroneous.'" See Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)).*fn5
Although issuance of conditional certifications would not violate existing regulations, the question remains whether, as plaintiffs contend, this court's equitable power is sufficiently broad as to authorize this court to order the DOL to provide such relief. Under the Administrative Procedure Act, "the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In addition, however, "[a] court sitting in review of an administrative agency is vested with equity powers...." Ind. & Mich. Electric Co. v. Fed. Power Comm'n, 502 F.2d 336, 346 (D.C. Cir. 1974). "[W]hile the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action." Ford Motor Co. v. NLRB, 305 U.S. 364, 372 (1939). Thus reviewing courts have imposed time limits on agency action, Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981), required an agency to refund excessive fees levied upon regulated entities, Allied-Signal v. USNC, 988 F.2d 146, 153 (D.C. Cir. 1993), and ordered an agency to appoint a plaintiff to a permanent position after the agency had arbitrarily delayed his certification, Hondros v. U.S. Civil Service Comm'n, 720 F.2d 278, 298 (3d Cir. 1983).
Plaintiffs have cited instances in which a district court has shaped a remand order, but none of the cases is precisely on point. Plaintiffs rely most heavily on two cases, both captioned NAACP v. Donovan, in which the district court ordered the DOL to grant a certain type of conditional H-2 labor certification. At the time of the NAACP suits, all H-2 workers*fn6 had to be paid at or above the adverse effect rate ("AER"). NAACP v. Donovan, 558 F. Supp. 218, 220 (D.D.C. 1982); see generally NAACP v. Donovan, 737 F.2d 67, 68--69 (D.C. Cir. 1984). The AER is calculated each year by the DOL on a state-by-state basis. In mid-1982, the DOL had failed to issue AERs for that year, and the DOL was ordered to establish an AER before the end of the year. NAACP, 558 F. Supp. at 221 n.6. To address the delayed issuance of the wage rate, the district court enjoined the DOL from issuing labor certifications unless and until the grower agreed to pay its workers at the 1982 AER once it was established. Id. at 226. In the meantime, employers were to pay workers at the 1981 AER. Id. at 255. In a subsequent case, the agency was again ordered to issue the same type of conditional certifications after failing to timely issue an AER in 1983. NAACP v. Donovan, 566 F. Supp. 1202, 1210 (D.D.C. 1983).
Plaintiffs argue that the NAACP relief described above is "indistinguishable" from the relief they request here. But this claim ignores the distinctions between the AER-which applied to all H-2 visas at the time of the NAACP litigation-and the H-2B prevailing wage rate regime. AERs are issued on a state-by-state basis, whereas H-2B prevailing wages are issued on an employer-by-employer basis. See 20 C.F.R. § 655.10(a) (2010). H-2B employers must submit an extensive application for a PWD,*fn7 and the NPC must provide an individualized wage calculation within 30 days of the request. Id. § 655(b)(6). Under plaintiffs' proposed relief, every H-2B employer who received a conditional labor certification would have to obtain a new PWD after the DOL issued revised wage regulations. Conditional certification in this context would thus involve considerably more extensive administration and management than, as in the NAACP litigation, simply ordering employers to pay a new statewide wage. I therefore find that plaintiffs' requested relief would stretch this court's equitable authority considerably further than the remedial orders in the NAACP litigation.*fn8
Moreover, a conditional certification order would blur the line between this court's remedial authority and the DOL's administrative authority. See, e.g., Fed. Power Comm'n v. Idaho Power Co., 344 U.S. 17, 21 (1952) (the power "'to affirm, modify, or set aside' the order of the Commission 'in whole or in part'.... is not power to exercise an essentially administrative function" (quoting APA § 706)). The DOL is surely better positioned than this court to devise a set of procedures for ensuring that the new regulation takes operative effect as soon as possible.
If the DOL chooses to impose a conditional certification regime,*fn9 the agency has the expertise to determine how, when, and in what form that regime should be implemented. See Merrick Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 507, 564 (1995) ("[B]ecause the essence of the executive function is the exercise of discretion, a court transgresses the separation of powers when it dictates that an agency take one particular action instead of others within its discretionary prerogative."). Accordingly, the final component of plaintiffs' Motion to Add Additional Relief, which asks this court to order the DOL to issue conditional labor certifications, is denied.
In summary, the DOL has failed to identify any facet of its regulations that would preclude it from issuing conditional labor certifications. Though it would be sensible for the DOL to adopt measures to minimize the adverse effects of the invalid methodology, I conclude that it is not within my equitable power to instruct the DOL to do so.
An appropriate order accompanies this opinion.