Fla. Growers Ass'n v. Su

1

FLORIDA GROWERS ASSOCIATION, INC., NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, FLORIDA CITRUS MUTUAL, FLORIDA FRUIT AND VEGETABLE ASSOCIATION, G&F FARMS, LLC, and FRANBERRY FARMS, LLC, Plaintiffs, v. JULIE A. SU, Acting Secretary of Labor, in her official capacity, et al., Defendants.

No. 8:23-cv-889-CEH-CPT

United States District Court, M.D. Florida, Tampa Division

January 5, 2024

REPORT AND RECOMMENDATION

HONORABLE CHRISTOPHER P. TUTTE, UNITED STATES MAGISTRATE JUDGE

Before me on referral is a motion for a preliminary injunction filed by Plaintiffs Florida Growers Association, Inc. (FGA) National Council of Agricultural Employers (NCAE); Florida Citrus Mutual (FCM); Florida Fruit and Vegetable Association (FFVA); G&F Farms, LLC (G&F); and Franberry Farms LLC (Franberry) against Defendants Julie A. Su, the Acting Secretary of Labor; Brent Parton, Principal Deputy Assistant Secretary of Labor; Brian Pasternak, Administrator of the Employment and Training Administration in the Office of Foreign Labor Certification (OFLC); and Jessica Looman, Acting Administrator of the Wage and Hour Division (collectively, DOL). (Doc. 16). Also before me on referral is a motion to dismiss brought by the Defendants pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 52). After careful review and with the benefit of a hearing on the Plaintiffs' motion for a preliminary injunction, I respectfully recommend that the Defendants' motion to dismiss be granted in part and denied in part and that the Plaintiffs' preliminary injunction motion be denied.

I.

A.

This case centers around the H-2A program, which permits U.S. agricultural employers to hire foreign workers to perform temporary agricultural labor or services. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a); (Doc. 44 at 2). The H-2A program is rooted in the H-2 program, which was created in 1952 when Congress enacted the Immigration and Nationality Act of 1952 (INA). Immigration and Nationality Act of 1952, Pub. L. No. 414, ch. 477, 66 Stat. 163 (codified as amended at 8 U.S.C. § 1101 et seq.). The H-2 program authorized the issuance of a class of temporary visas for nonresident aliens to engage in labor or services for a limited time frame “if unemployed persons capable of performing [such work could not] be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii); § 214(c), 66 Stat. at 168, 189-90; see also Am. Fed'n of Lab. & Cong. of Indus. Orgs. v. Brock, 835 F.2d 912, 913 (D.C. Cir. 1987) (summarizing the origins of the H-2A program).

In 1986, Congress passed the Immigration Reform and Control Act (IRCA) which amended the INA. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359. The IRCA created a new “H-2A” classification for foreign nationals admitted to perform temporary agricultural labor or services.^[1] Id. Aliens authorized to participate in this program are commonly known as H-2A workers. (Doc. 33 at 6). The implementing regulations for the H-2A program are found at 20 C.F.R. §§ 655.100 to 655.185 and 29 C.F.R. §§ 501.00 to 501.47. Id.

Employers seeking to retain H-2A workers must first file a temporary labor certification application with the DOL that satisfies certain criteria. See 20 C.F.R. §§ 655.121(a)(1), 655.130; see generally Everglades Harvesting & Hauling, Inc. v. Scalia, 427 F.Supp.3d 101, 105-06 (D.D.C. 2019). The regulations governing such applications establish the minimum benefits, wages, and working conditions that must be offered by the petitioning employer to avoid adversely affecting similarly situated U.S. workers. 20 C.F.R. §§ 655.120, 655.122, 655.135. Among these regulations is the “offered wage rate” provision, which mandates that for every hour or portion thereof worked during a pay period, the employer must pay its laborers the highest applicable wage rate. 20 C.F.R. §§ 655.120, 655.122(1). The regulations necessitate that the employer not only compensate H-2A workers this amount but also U.S. workers in corresponding employment. See 20 C.F.R. §§ 655.103(b), 655.182(d)(1).

The IRCA prohibits the Secretary of Labor from approving H-2A workers' visas unless the following circumstances are found to exist:

(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

100 Stat. at 3411 (emphasis added) (codified as amended at 8 U.S.C. § 1188(a)(1)). Both of these elements must be shown to be present for the Secretary to grant an employer's H-2A worker application and to issue a “temporary agricultural labor certification.” Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 88 Fed.Reg. 12760 (Feb. 28, 2023). By way of this process, the DOL endeavors to safeguard the wages of U.S. laborers from being “adversely affected” by H-2A workers.^[2] See id.

Congress, however, did not define the phrase “adversely affected” and instead entrusted the DOL with the responsibility of “‘ensur[ing] that the [employment] of farmworkers [meets] the statutory requirements.'” 88 Fed.Reg. at 12761 (quoting AFL-CIO, et al. v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991)). The DOL therefore has discretion to determine the methodological approach that best achieves a balance between the “competing goals” of maintaining “‘an adequate labor supply and protecting the jobs of domestic workers.'” (Doc. 44 at 12) (quoting Dole, 923 F.2d at 187); see also 88 Fed.Reg. at 12761 (“The INA ‘requires that the [DOL] serve the interests of both farmworkers and growers-which are often in tension. That is why Congress left it to [the DOL's] judgment and expertise to strike the balance. '”) (quoting Dole, 923 F.2d at 187).

As pertinent here, one of the principal mechanisms the DOL utilizes to accomplish this objective is to set the hourly “Adverse Effect Wage Rate” (AEWR). 20 C.F.R. § 655.120; (Doc. 44 at 2, 13). The AEWR is one of several possible wage rates that the DOL may consider in addressing the highest applicable wage directive.^[3]20 C.F.R. §§ 655.120(a), 655.121(1). The AEWR creates a wage floor that serves to prevent “localized wage stagnation or depression relative to the wages of [U.S.] workers similarly employed in areas and occupations” in which employers wish to hire H-2A workers. 88 Fed.Reg. at 12761. The general aim of the AEWR is “to approximate the equilibrium wages that would result absent an influx of temporary foreign workers,” thereby putting “incumbent farm workers in the position they would have been in but for the H-2A program.” (Doc. 44 at 4) (quoting 88 Fed.Reg. at 12768); see also (Doc. 44 at 3) (same) (quoting 88 Fed.Reg. at 12773). While the AEWR is “one of the primary regulatory controls” to avoid “adverse effects,” 88 Fed.Reg. at 12773, Congress has not designated a specific approach for calculating that wage rate. Am. Fed'n of Lab. & Cong. of Indus. Orgs., 835 F.2d at 915. Rather, it has left that task “entirely to the [DOL's] discretion.” Id. at 915. In exercising the latitude afforded to it by Congress, the DOL need not assess the AEWR at the highest conceivable point nor the lowest, as long as the figure it selects effectuates the purpose of protecting against any “adverse impact on the wages of agricultural workers in the United States similarly employed.” 88 Fed.Reg. at 12761. The DOL also takes into account “factors relating to the sound administration of the H-2A program in deciding how to determine the AEWR.” Id.

The manner by which the DOL has computed the AEWR has varied over the years. Since 1987, the DOL has generally calculated the AEWR by using the U.S. Department of Agriculture's (USDA) annual survey of farmworker wages, commonly known as the Farm Labor Survey (FLS). See (Doc. 44 at 13-18). The FLS reports wages per State or region in four categories: (1) field workers, (2) livestock workers, (3) field and livestock workers (combined), and (4) all hired workers.^[4] (Doc. 44 at 45, 15). The “field and livestock workers (combined)” category constitutes the lion's share of the H-2A job opportunities (Doc. 44 at 3) (quoting 88 Fed.Reg. at 12768) and is comprised of the following six occupations: (1) Graders and Sorters, Agricultural Products; (2) Agricultural Equipment Operators; (3) Farmworkers and Laborers, Crop, Nursery, and Greenhouse; (4) Farmworkers, Farm, Ranch, and Aquacultural Animals; (5) Packers and Packagers, Hand; and (6) Agricultural Workers, All Other. See 88 Fed.Reg. at 12766; (Doc. 44 at 17 n.5, 19) (citation omitted).

Until 2008, the DOL set the AEWR for each year “at a level equal to the previous year's annual regional average hourly wage rates for field and livestock workers (combined),” as determined by the FLS. Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United States; Adverse Effect Wage Rate Methodology, 54 Fed.Reg. 28037, 28038 (July 5, 1989). In 2008, however, the DOL switched to utilizing Occupational Employment Statistics (OES) survey data from the Bureau of Labor Statistics (BLS) to calculate AEWRs for all H-2A job opportunities. (Doc. 44 at 5, 13). The DOL justified this change on, among other grounds, its apprehension that the USDA “could terminate the [FLS] survey at any time and leave [the DOL] without the basic data” to set the AEWR. See Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed.Reg 77110, 77173 (Dec. 18, 2008); (Doc. 44 at 13-14). The DOL found...