Williams v. Walsh

648 F.Supp.3d 70

Mary Jane WILLIAMS, et al., Plaintiffs, v. Martin J. WALSH, et al., Defendants.

Civil Action No. 21-1150 (RC)

United States District Court, District of Columbia

Signed December 23, 2022

Carol L. Brooke, North Carolina Justice Center, Raleigh, NC, Edward Tuddenham, Edward John Tuddenham, Paris, France, Clermont Ripley, Elizabeth Leiserson, Southern Migrant Legal Services, Nashville, TN, for Plaintiff Mary Jane Williams.

Carol L. Brooke, North Carolina Justice Center, Raleigh, NC, Edward John Tuddenham, Paris, France, Clermont Ripley, Elizabeth Leiserson, Southern Migrant Legal Services, Nashville, TN, for Plaintiffs Mary Hester Lewis, Martin Johnson, Jr., Danielle Lee, New Orleans Workers' Center for Racial Justice.

Edward John Tuddenham, Paris, France, Gregory Scott Schell, Texas RioGrande Legal Aid, Inc., Palm Beach Gardens, FL, David Huang, Elizabeth Leiserson, Southern Migrant Legal Services, Nashville, TN, Douglas L. Stevick, Texas RioGrande Legal Aid, Inc., Saint Louis, MO, for Plaintiff Martha Icela Flores Gaxiola.

Joshua Samuel Press, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Alessandra Faso, Office of Immigration Litigation, District Court Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

DENYING DEFENDANTS' MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs, seasonal crawfish processing workers in Louisiana, together with a nonprofit workers' organization, bring suit against the Department of Labor ("DOL"), DOL Secretary Martin J. Walsh in his official capacity, the Department of Homeland Security ("DHS"), and DHS Secretary Alejandro Mayorkas in his official capacity (collectively, the "Defendants"). Plaintiffs allege that Defendants' rule concerning prevailing wage determinations in the H2-B visa program—the 2015 Wage Rule—is procedurally and substantively deficient under the Administrative Procedure Act ("APA").

As described in more detail below, the Court finds that Plaintiffs have standing to challenge the 2015 Wage Rule. The Court holds that the rule is procedurally invalid under the APA, and that its lack of notice and comment prejudiced Plaintiffs. As a result of this procedural defect, the Court has no occasion at this moment to rule on Plaintiffs' facial APA challenges. As for Plaintiffs' as-applied APA challenge, the Court concludes that Defendants' application of the 2015 Wage Rule to prevailing wage determinations based on a 2021 survey was unlawful. As a result of Defendants' unlawful actions, the Court elects to remand the case (without vacatur) to the agencies for further consideration consistent with this ruling. Accordingly, the Court will deny Defendants' motion to dismiss, grant in part and deny in part Plaintiffs' motion for summary judgment, and grant in part and deny in part Defendants' cross-motion for summary judgment.

II. BACKGROUND

A. Regulatory Framework

This is the Court's third opinion in this case. See Williams v. Walsh ("Williams I"), 581 F. Supp. 3d 237 (D.D.C. 2022); Williams v. Walsh ("Williams II"), No. 21-cv-1150, 619 F.Supp.3d 48 (D.D.C. July 18, 2022). The Court repeats much of the background discussion from its prior opinions in this case, adding updates where necessary. Under the H-2B visa program, if a United States employer cannot find enough United States workers to perform temporary non-agricultural unskilled work, it may obtain visas for the admission of foreign workers to fill the gap. When Congress authorized this program, it was mindful of the risk that unfettered admission of foreign workers willing to work at lower rates might harm United States workers by depressing wages in their fields. Therefore, Congress required employers seeking H-2B visas to show that their employment of foreign workers will not adversely affect the wages and working conditions of United States workers. Comité De Apoyo A Los Trabajadores Agrícolas v. Perez ("CATA III"), 774 F.3d 173, 177 (3d Cir. 2014) (citing 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1182(a)(5)(A)(i)(I)-(II)).

By delegation from DHS, DOL holds responsibility for evaluating employer applications for H-2B visas in order to determine whether granting the requested employment of foreign workers will adversely affect United States workers. Williams II, 619 F.Supp.3d at 52. This involves making two determinations: "(1) [that] qualified workers are not available in the United States to perform the employment for which foreign workers are sought, and (2) [that the foreign workers'] employment will not adversely affect wages and working conditions of similarly employed United States workers." CATA III, 774 F.3d at 177 (citing 8 C.F.R. §§ 214.2(h)(6)(iii)(A), (iv)(A)). The wage an H-2B employer offers is central to this determination, both because the availability of United States workers will depend on whether the work pays a satisfactory wage and because admitting foreign workers willing to work for reduced wages may decrease the wages available to United States workers looking to work in the same industry. Thus, to be eligible to participate in the H-2B program, an employer must obtain from DOL a determination that the employer offers at least the "prevailing wage" for the relevant occupation. Williams II, 619 F.Supp.3d at 51-52; 20 C.F.R.§ 655.0(a)(2); id. § 655.10(a).

Just how to calculate the prevailing wage for a particular occupation has been the subject of dispute between employers and workers for some time, and Congress, DOL, DHS, and the courts have all weighed in over the years. At first, DOL enlisted state agencies to calculate a prevailing wage for each occupation within their jurisdictions. CATA III, 774 F.3d at 178. In 2005, for occupations not subject to any collective bargaining agreement, DOL began to consider both employer-submitted, private wage surveys and the Bureau of Labor Statistics Occupational Employment Statistics ("OES")¹ survey. Id. According to Plaintiffs, surveys submitted by employers tend to suffer from methodological defects not present in the OES survey, including defining the relevant occupation too narrowly by using specific job duties as the determinative criterion and failing to ensure that all relevant employers have submitted wage data. Williams II, 619 F.Supp.3d at 52-53. Therefore, Plaintiffs allege that employer-submitted surveys indicate that the prevailing wage is lower than it is under the preferable OES method, and that DOL's consideration of employer-submitted wage surveys systematically depresses wages in H-2B industries. Id.

A 2008 rule formalized DOL's practice of making prevailing wage determinations based either on employer-submitted surveys or the OES wage. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes ("2008 Rule"), 73 Fed. Reg. 78020, 78056 (Dec. 19, 2008). And a 2009 guidance document set out the standards by which DOL would determine the adequacy and validity of the survey methodology. See DOL, Prevailing Wage Determination Policy Guidance (Nov. 2009) ("2009 Wage Guidance"), https://dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf. Though the notice of proposed rulemaking in the 2008 Rule solicited comments generally, it did not permit comments on the specific topic of acceptance of employer-submitted surveys. See Williams II, 619 F.Supp.3d at 52-53. A district court held that a separate feature of the 2008 rule—its division of OES data to identify OES wages for different "skill levels"—was arbitrary and capricious in violation of the APA. Comité de Apoyo a los Trabajadores Agrícolas v. Solis ("CATA I"), No. 09-240, 2010 WL 3431761, at *19 (E.D. Pa. Aug. 30, 2010). DOL responded with a notice of proposed rulemaking, and ultimately a final rule in 2011 that, among other things, forbade employers from submitting their own surveys when an applicable OES wage (or another approved federal wage measure) was available. See Wage Methodology for the Temporary Non-agricultural Employment H-2B Program ("2011 Wage Rule"), 76 Fed. Reg. 3452, 3465-67 (Jan. 19, 2011). The 2011 Wage Rule created two narrow exceptions to this ban: employer surveys could still be used in situations where the OES does not provide data in the geographic area or where the OES does not accurately represent the relevant job classification. Id. at 3466-67. In support of its change in policy, DOL explained that the OES survey was "the most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-2B program." Id. at 3465. But Congress refused to provide appropriations to implement the 2011 Wage Rule,² so DOL continued to operate under the 2008 Rule, including by differentiating among skill levels and by accepting employer-provided surveys. Williams II, 619 F.Supp.3d at 52-53. Yet again, the Eastern District of Pennsylvania ordered DOL to cease its skill-level differentiation. Comité de Apoyo a los Trabajadores Agrícolas v. Solis ("CATA II"), 933 F. Supp. 2d 700, 711-12 (E.D. Pa. 2013).

In response, and without notice and comment, DOL and DHS published a joint Interim Final Rule in 2013, which, among other things, officially returned to the policy of requiring DOL to accept employer-provided surveys. Williams II, 619 F.Supp.3d at 52-53; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2 ("2013 IFR"), 78 Fed. Reg. 24047, 24054-55 (Apr. 24, 2013). The 2013 IFR responded to CATA II by removing skill-level differentiation from the calculation of OES wages, see 2013 IFR at 24053, but left untouched the 2008 Rule's provisions governing survey methodology, see id. at 24054-55 (stating that the 2013 IFR does "not revise or...