Mendoza v. Solis

924 F.Supp.2d 307

Reymundo Z. MENDOZA, et al., Plaintiffs,

v.Hilda SOLIS, United States Secretary of Labor, et al., Defendants,

v.Western Range Association, et al., Intervenor–Defendants.

Civil Action No. 11–1790 (BAH).

United States District Court, District of Columbia.

Feb. 21, 2013.

Edward John Tuddenham, New York, NY, Jennifer J. Lee, Colorado Legal Services, Denver, CO, Gregory A. Beck, Julie A. Murray, Michael T. Kirkpatrick, Public Citizen Litigation Group, Washington, DC, P. Alex McBean, Utah Legal Services, Inc., Salt Lake City, UT, for Plaintiffs.

Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Defendants.

Wendel Vincent Hall, C.J. Lake LLC, Carl W. Hampe, Baker & McKenzie, Monte B. Lake, Siff & Lake, LLP, Washington, DC, for Intervenor Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiffs, who are four former open-range agricultural workers, bring this action against the defendants United States Secretary of Labor and United States Department of Labor pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500, et seq., seeking vacatur of two guidance letters that were promulgated without notice-and-comment rulemaking. The plaintiffs claim that the two guidance letters qualify as “rules” and therefore were subject to the notice-and-comment requirements of the APA. Two agricultural associations, Western Range Association and Mountain Plains Agricultural Services, have intervened as defendants and have moved to dismiss this action for lack of subject-matter jurisdiction. Additionally, the plaintiffs, the defendants, and the intervenor-defendants have each moved for summary judgment on the merits of the plaintiffs' administrative procedure claim.

I. BACKGROUNDA. Statutory and Regulatory Framework

Under the Immigration and Nationality Act (“INA”), as amended by the ImmigrationReform and Control Act of 1986 (“IRCA”), foreign workers may be hired to perform temporary agricultural work in the United States through the H–2A visa program. See8 U.S.C. § 1101(a)(15)(H)(ii)(a). The H–2A program grants temporary work visas to any nonimmigrant alien who “ha[s] a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services.” Id. Any employer petitioning to import an H–2A worker must first obtain certification to do so from the Secretary of Labor. See8 U.S.C. § 1188(a). The criteria for certification are, inter alia, that (1) “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 (2) “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.” Id. § 1188(a)(1). To qualify for certification, a prospective H–2A employer must agree to a number of obligations, including, inter alia: (1) keeping any job opportunity open to any qualified U.S. worker on a non-discriminatory basis; (2) providing employment to any qualified U.S. worker who applies until fifty percent of the period of the job opportunity's work contract has elapsed; (3) actively recruiting qualified U.S. workers within a multistate region for any job opportunity; and (4) complying with all applicable federal, state, and local laws and regulations, including health and safety laws and the Fair Labor Standards Act (“FLSA”), where applicable. See20 C.F.R. § 655.135.¹

In order to ensure that the importation of H–2A workers does not “adversely affect the wages ... of workers in the United States similarly employed,” 8 U.S.C. § 1188(a)(1), Department of Labor regulations require H–2A employers to pay their hourly workers what is known as an “adverse effect wage rate” or “AEWR.” See20 C.F.R. § 655.122( l ); see also id. § 655.120(a) (generally requiring H–2A employers to “pay a wage that is the highest of the AEWR, the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage”). The AEWR is “[t]he annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the U.S. Department of Agriculture (USDA) based on its quarterly wage survey.” Id.§ 655.103(b). The AEWR is designed to “insure against a lowering of wages” that might otherwise result from the importation of foreign labor. See, e.g., Williams v. Usery, 531 F.2d 305, 307 (5th Cir.1976); see also Rowland v. Marshall, 650 F.2d 28, 29 (4th Cir.1981) (per curiam) (“The purpose of the AEWR is to prevent the importation of nonimmigrant aliens from deflating the wages and from adversely affecting the working conditionsof the United States workers similarly employed.” (citing 20 C.F.R. § 655.0(e))). Additionally, H–2A employers are required to pay workers “at least twice monthly or according to the prevailing practice in the area of intended employment, whichever is more frequent.” 20 C.F.R. § 655.122(m).

With respect to working conditions, Department of Labor regulations require that H–2A employers provide a minimum level of benefits and working conditions, including housing, workers' compensation insurance, meals, supplies, and transportation. See20 C.F.R. § 655.122(c). The minimum working conditions include the employer's obligation to provide housing at no cost to their H–2A workers, and the employer-provided housing must generally meet the standards set forth by the Occupational Safety and Health Administration (“OSHA”). See id. § 655.122(d)(1). All H–2A employers are also generally required to request an inspection of the housing they provide, and the inspection must be completed prior to issuance of any H–2A certification. SeeTemporary Agricultural Employment of H–2A Aliens in the United States (“2010 H–2A Rule”), 75 Fed.Reg. 6884, 6908 (Feb. 12, 2010).

The Department of Labor has, for many years, permitted exceptions to these generally applicable procedures “to recognize unique circumstances and characteristics for some agricultural employer/worker situations,” such as sheepherding and occupations involving the open-range production of livestock. See52 Fed.Reg. 20,496, 20,497 (June 1, 1987) (codified as amended at 20 C.F.R. pts. 654–55). These “special procedures,” as they were first promulgated through the 1987 rulemaking, permitted the Director of the U.S. Employment Service (the “Director”) to “establish monthly, weekly, or bi-weekly [AEWRs] for” occupations “characterized by other than a reasonably regular workday or workweek,” such as the range production of sheep or other livestock, though the Director was still required to establish these special AEWRs “consistent with the methodology” used for the standard AEWR, i.e., “the annual weighted average hourly wage rate for field and livestock workers (combined) for the region ... based on the USDA quarterly wage survey.” See id. at 20,508–09, 20,521. The 1987 rule also generally authorized the Director “to establish special procedures for processing H–2A applications when employers can demonstrate upon written application to and consultation with the Director that special procedures are necessary.” Id. at 20,508. Finally, the 1987 rule required that housing for “workers principally engaged in the range production of livestock” must meet OSHA housing standards or, “[i]n the absence of such standards,” open-range housing was required to “meet guidelines issued by [the Employment Training Administration, or ‘ETA’].” Id. at 20,513.

Pursuant to the authority delegated in the 1987 rulemaking, the Department of Labor published Field Memorandum 74–89 in May 1989, which set forth a number of “special procedures governing the labor certification process for temporary alien sheepherders.” ² Fed. Defs.' Mem. in Supp. of Mot. for Summ. J. (“Defs.' Summ. J. Mem.”) Ex. A at 1, ECF No. 28–2. The special procedures contained in Field Memorandum 74–89, inter alia, (1) permitted employers to describe the anticipated hours of open-range herding positions as “on call for up to 24 hours per day, 7 days per week,” and exempted employers from recording and reporting hours offered and worked, id. at 7; (2) permitted employers to offer open-range herders, at minimum, “the prevailing wage rate for the occupation in the State as determined by the [State Employment Service Agency, or ‘SESA’] prevailing wage survey ... or a special monthly [AEWR] established by the National Office,” id. at 9; and (3) established standards for mobile housing used by H–2A open-range herders, id. at 20–24. The mobile housing standards issued in the 1989 special procedures, unlike the generally applicable procedures, did not specifically require that open-range mobile housing have a running cold-water tap, electricity, or modern toilet facilities. Compare20 C.F.R. §§ 654.404–17 (housing standards generally applicable to H–2A housing), with Defs' Mem. Ex. A at 20–24 (special mobile housing standards). The special procedures were updated in 2001 and 2007, but have remained substantially and continuously in place. See Defs.' Summ. J. Mem. Ex. B, ECF No. 28–3 (Field Memorandum 24–01, published August 2001); id. Ex. C, ECF No. 28–4 (Training and Employment Guidance Letter No. 15–06, published February 2007).

The Department of Labor's H–2A regulations were most recently amended pursuant to a final rule that was promulgated through notice-and-comment procedures on February 12, 2010. See 2010 H–2A Rule, 75 Fed.Reg. 6884. The 2010 H–2A regulations reaffirmed the authority of the Department of Labor (in particular, the Office of Foreign Labor Certification (“OFLC”)) to “establish, continue, revise, or revoke special procedures” for processing H–2A applications for sheepherders and “occupations in the range production of other livestock.” See id. at 6959–60. On August 4, 2011, pursuant to...