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Comite De Apoyo A Los Trabajadores Agricolas, et al v. Hilda Solis

December 8, 2011

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS, ET AL.,
PLAINTIFFS,
v.
HILDA SOLIS, ET AL., DEFENDANTS.



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

OPINION

The Comite de Apoyo a los Trabajadores Agricolas ("CATA") and other plaintiffs initiated this law suit against Secretary of Labor Hilda Solis and other federal officials in 2009. The suit challenged certain regulations pertaining to the so-called "H-2B" program for the admission to the United States, on a temporary basis, of alien non-agricultural workers (by contrast with the "H-2A" program for the temporary admission of alien agricultural workers). The H-2B program is administered primarily by the Department of Labor ("DOL") and secondarily by the Department of Homeland Security ("DHS"). The H-2B program takes its name from the terminal letters and number of the section of the Immigration and Nationality Act which is the program's statutory foundation. Under 8 U.S.C. § 1101(a)(15)(H)(ii)(b), in order for an alien to be eligible for admission to the United States as an H-2B worker he must "hav[e] a residence in a foreign country which he has no intention of abandoning" and must be "coming temporarily 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."

The CATA plaintiffs charged that certain of the governing regulations did not comply with statutory directives or purposes. In an opinion of August 31, 2010, this court found in plaintiffs' favor with respect to several issues. Chief among these was DOL's adoption of a four-tier skill-level structure as the standard for calculating the wages to be paid to H-2B workers. The August 31, 2010 opinion stated:

In the absence of any valid regulatory language authorizing the use of skill levels in determining the prevailing wage rate . . . the four-tier structure of skill levels set out in the guidance letters-which is entirely untethered from any other statutory or regulatory provisions, and which affirmatively creates the wages paid to H-2B workers-constitutes a legislative rule which must be subjected to notice and comment. It has not been so subjected and it . . . is therefore invalid.

CATA v. Solis (CATA I), No. 09-240, slip op. at 38, 2010 WL 3431761, at *19 (E.D. Pa. Aug. 30, 2010).

This court's determination that the system for determining H-2B wage rates was invalid posed the question of remedy. The August 31, 2010 opinion addressed this issue in the following terms:

The magnitude of DOL's errors . . . counsels in favor of vacating the regulations. Doing so, however, would remove the agency's default rule for calculating prevailing wages, resulting in a large gap in the prevailing wage regulations. Those regulations are, of course, a central part of DOL's regulatory scheme and of vital interest to both H-2B workers and U.S. workers in the same industries. . . .

These circumstances are similar to those encountered by the D.C. Circuit in Rodway v. USDA, 514 F.2d 809 (D.C. Cir. 1975). There, the Department of Agriculture "failed to provide public notice and an opportunity for comment before it adopted regulations establishing an allotment system for the federal food stamp program." Heartland Reg'l Med. Ctr. [v. Sebelius, 566 F.3d 193, 198-99 (D.C. Cir. 2009)] (discussing Rodway). Faced with a serious shortcoming on the part of the agency and with regulations of "critical importance," the court declined to vacate the regulations but ordered the agency "to complete the new rule-making process" within a short period of time. Rodway, 514 F.2d at 817-18. Because the issue of wage rates is of similarly central importance, this court will not vacate the regulations but rather, as in Rodway, accord the agency 120 days in which to promulgate new, valid regulations for determining the prevailing wage rate in the H-2B program.

CATA I, slip op. at 50-51, 2010 WL 3431761, at *25.

In an order dated October 27, 2010, this court clarified that the instruction to "promulgate new, valid regulations" in 120 days was a directive to publish new regulations in 120 days, not a direction that new regulations should go into effect in 120 days. On January 19, 2011, DOL published new wage regulations (the "Wage Rule") and set January 1, 2012 as the new regulations' effective date.

Plaintiffs filed a motion for an Order Enforcing the Judgment challenging DOL's action in postponing by almost a year-i.e., until January 1, 2012-the putting into effect of the Wage Rule published on January 19, 2011. This court, in a Memorandum/Order dated June 15, 2011, upon taking into account "the critical importance of avoiding the depression of wages paid to U.S. and to H-2B workers, and because of the already protracted delay in implementing a valid prevailing wage regime," announced that "the court will expect that, within forty-five (45) days, the DOL will-in compliance with the Administrative Procedure Act, the Immigration and Nationality Act, and this court's orders-announce a new effective date." CATA v. Solis, No. 09-240, slip op. at 12, 2011 WL 2414555, at *5 (E.D. Pa. June 15, 2010).

On August 1, 2011, after notice and comment, DOL adopted a final rule setting an effective date of September 30, 2011 for the January 19, 2011 Wage Rule. The DOL also began issuing prevailing wage determinations using the new Wage Rule's methodology for calculating wage rates for work performed commencing on the September 30, 2011 effective date of the new Wage Rule.

1.

On September 22, 2011, just eight days before the date on which the new Wage Rule was to go into force, DOL postponed the effective date of the Wage Rule for two months, from September 30, 2011 to November 30, 2011. The agency action followed within a matter of days the initiation in federal courts in Louisiana and Florida of two lawsuits challenging the Wage Rule's validity on a variety of constitutional and statutory grounds: Louisiana Forestry Association, Inc. v. Solis, No. 11-1623, in the United States District Court for the Western District of Louisiana, filed September 7, 2011; and Bayou Lawn & ...


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