Nat'l Council of Agric. v. United States Dep't of Labor

1

NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.

Civil Action No. 22-3569 (RC)

Re Document Nos. 26, 27

United States District Court, District of Columbia

January 29, 2024

MEMORANDUM OPINION

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

Denying Plaintiff's Motion for Summary Judgment; Granting Defendants' Cross-Motion for Summary Judgment

I. INTRODUCTION

Plaintiff National Council of Agricultural Employers (“NCAE”) brings this suit against the Department of Labor (“DOL”); the Office of the Federal Register (“OFR”); the Employment and Training Administration of DOL; the Wage and Hour Division of DOL Julie Su, in her official capacity as Acting Secretary of Labor^[1]; Oliver Potts, in his official capacity as Director of OFR; Brent Parton, in his official capacity as Principal Deputy Assistant Secretary of the Employment and Training Administration; and Jessica Looman, in her official capacity as Administrator of the Wage and Hour Division (collectively, “Defendants”), alleging violations of the Administrative Procedure Act (“APA”) in connection with the promulgation of a DOL rule. NCAE alleges that, during the last few days of the Trump administration, DOL issued a final rule concerning the H-2A visa program. Before the rule's publication in the Federal Register, however-and following the inauguration of President Biden-DOL withdrew the rule. Then, in 2022, DOL issued a revised final rule concerning the H-2A program. NCAE alleges that various aspects of this chain of events-the withdrawal and related failure to publish the rule in 2021, followed by the promulgation of the rule in 2022-violated the APA by depriving it and its members of notice and the ability to comment on the promulgation of the final version of the rule. Defendants disagree; they contend that the rule never became final in 2021, was validly withdrawn from publication, and was properly promulgated as a final rule in 2022. The parties now cross-move for summary judgment. For the reasons discussed below, NCAE's motion is denied and Defendants' cross-motion is granted.

II. BACKGROUND

A. Statutory and Regulatory Background

The H-2A visa program-created by the Immigration and Nationality Act of 1952 (“INA”) and amended by the Immigration Reform and Control Act of 1986-permits employers (referred to as labor contractors) to hire foreign workers to perform temporary agricultural work in the United States. See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c)(1), 1188. An employer seeking to hire H-2A foreign workers must first seek certification from DOL 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” and (2) the employment of a foreign worker “in such labor or services will not adversely affect the wages and working conditions of workers in the United States [who are] similarly employed.” Id. § 1188(a)(1). After DOL certifies an employer's petition, the employer can “petition the Department of Homeland Security to designate foreign workers as H-2A workers.” Overdevest Nurseries v. Walsh, 2 F.4th 977, 980 (D.C. Cir. 2021).

Congress has delegated authority to promulgate regulations governing the parameters of the H-2A program to the Secretary of Labor. Id. Prior to 2022, many of the regulations governing the H-2A program dated to 2010-the last time that DOL conducted a major rulemaking relating to that program. See Mendoza v. Perez, 754 F.3d 1002, 1008 (D.C. Cir. 2014). In 2018, however, DOL (along with other agencies tasked with responsibility for administering or facilitating the H-2A program) announced an effort to “modernize the H-2A visa program by clarifying and improving the regulations governing the program.” See Am. Declaration of Michael Marsh (“Marsh Decl.”), Ex. A, ECF No. 12-2. In furtherance of that effort, on July 26, 2019, DOL issued a noticed of proposed rulemaking (the “2019 NPRM”) in which the agency announced its formal proposal to “amend [DOL's] regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment.” See Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 Fed.Reg. 36,168, 36,168 (proposed July 26, 2019). DOL clarified that the proposed rulemaking would, among other things, “[a]mend[] . . . the current regulations” by “modernizing the H-2A program and eliminating inefficiencies.” Id. In announcing the proposed rule, DOL opened a 60-day public comment period during which “[i]nterested persons [we]re invited to submit written comments.” Id.

Though the 2019 NPRM was sweeping in scope, two categories of proposed amendments to the 2010 regulatory regime are of particular relevance here. The first grouping of amendments concerned changes to the methodology used to determine prevailing wages, one of the applicable wage sources in the H-2A program. See id. at 36,171. As discussed above, before “[a] petition to import an alien as an H-2A worker” may be approved, DOL must certify that employment of the foreign worker “will not adversely affect the wages and working conditions of workers in the United States [who are] similarly employed.” 8 U.S.C. § 1188(a)(1). One of the ways DOL ensures compliance with this requirement is by requiring employers to “offer, advertise in [their] recruitment, and pay a wage that is at least the highest of” the adverse effect wage rate (“AEWR”), the prevailing wage, the agreed-upon collective bargaining wage, the federal minimum wage, or the state minimum wage. See 20 C.F.R. §§ 655.120(a), 655.122(1). At the time, DOL determined the prevailing wage using a methodology that “ha[d] not been updated since 1981.” See Temporary Agricultural Employment, 84 Fed.Reg. at 36,184. In the 2019 NPRM, DOL “propose[d] to modernize” that methodology, and outlined myriad, detailed ways in which it would do so. See id. at 36,171, 36,179-88.

The second relevant category of amendments delineated in the 2019 NRPM concerned regulations requiring H-2A employers to submit “proof of [their] ability to discharge [their] financial obligations in the form of a surety bond.” Id. at 36,203. As DOL explained, the surety bond requirement enables the agency to ensure that H-2A employers, “who may be transient and undercapitalized, can meet their payroll and other program obligations, thereby preventing program abuse.” Id. In the event that DOL finds that an employer has violated its obligations, DOL “may make a claim to the surety for payment of wages and benefits owed to H-2A workers, workers in corresponding employment, and U.S. workers improperly rejected from employment, laid off, or displaced, up to the face amount of the bond.” Id. In 2019, employers were required to obtain bonds ranging from “$5,000 to $75,000 depending on the number of H-2A workers employed.” Id.; see 29 C.F.R. § 501.9(c) (2019). Those amounts had remained unchanged since 2010. See Temporary Agricultural Employment, 84 Fed.Reg. at 36,204. Among other things, the 2019 NPRM proposed increasing the bond amounts to account for “annual increases in the AEWR,” and also proposed to increase the bond amounts for H-2A certifications covering more than 150 workers. Id. at 36,203-05.

Ultimately, DOL received over 83,000 comments on the proposed rule changes. See Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed.Reg. 61,660, 61,664 (Oct. 12, 2022). These comments included a 27-page letter submitted by NCAE. See Nat'l Council of Agric. Employers, Marsh, Michael, Comment Letter on Proposed Rule Regarding Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (Sept. 24, 2019), https://www.regulations.gov/comment/ETA-2019-0007-0354.

After President Biden won the 2020 election but before he took office, DOL took steps toward promulgating a final rule, which, for ease of reference, the Court will refer to as the “2021 Rule.”^[2] On the morning of January 11, 2021, DOL emailed OFR a Word document entitled “ETA H-2A 2020 final rule 182021.docx.” Mem. Supp. Pl.'s Mot. Summ. J., Ex. 1, Joint Stip. Undisputed Facts (“JSUF”) ¶ 1, ECF No. 26-2. After OFR informed DOL that the document was missing a necessary signature, DOL submitted an updated Word document (entitled “H-2A 2020 final rule 1 8 2021.docx”) later that afternoon. Id. ¶¶ 2-3. The later-submitted document was signed by both the then-Assistant Secretary for the Employment and Training Administration and the then-Administrator of the Wage and Hour Division. Id. ¶ 3. That same day, DOL also sent OFR a “special handling” letter. See JSUF, Ex. A. The letter requested that OFR make the 2021 Rule “available for immediate filing on January 14, 2021” and further requested that OFR schedule the 2021 Rule for “emergency publication on January 15, 2021.” Id.

Days passed without action. Then, on January 14, DOL sent a follow-up email to OFR to inquire into the “status” of the “review, markup and/or scheduling” of the 2021 Rule. See JSUF, Ex. B. DOL's email reiterated that the Secretary of Labor wanted the 2021 Rule to be published “on or before January 19.” Id. Minutes later, an OFR employee responded that, due to the “relentless backlog of regulatory documents,” an “emergency editor” had not yet been able to address DOL's submission. Id. Shortly thereafter, another OFR employee replied to inform DOL that, “[g]iven [the] backlog,” OFR would “not be able to file immediately or publish by the 19^th.” Id.

Following that news, DOL took matters into its own hands. On January 15, DOL held a stakeholder call “regarding significant rulemaking on the H-2A Visa program.” See Marsh Decl.,...