226 U.S. App. D.C. 266, 702 F.2d 245, 250 (D.C. Cir. 1983) (citation omitted).
The plaintiffs have documented an "injury in fact." In general terms, this harm is that, "DOL's new H-2A wage regulations allow foreign workers to be imported at depressed wage rates and that the employment of cheap foreign labor will further depress U.S. workers' wages and deprive them of needed job opportunities. The loss of American jobs and income as a result of unfair foreign competition is exactly the kind of injury-in-fact contemplated by the Article III requirement." Pl. Memorandum on the Merits ("Pl. Br.") at 34-35 (citations omitted).
More specifically, in their complaint, plaintiffs show, for example, that apple growers in West Virginia, Virginia, New York and New England traditionally import large numbers of temporary foreign workers for their fall harvest. Complaint at para. 42. According to H-2A regulations, applications for these workers must be filed with the Department at least 60 days before the harvest begins. Id. at P 43. Thus, sometime this summer, these growers will be filing H-2A applications offering employment at adversely affected wage rates. Id. Although the Department has seven days to approve or disapprove of these offers, 8 U.S.C. § 1186(c)(2)(A), recruitment of American workers can begin immediately upon filing of the H-2A application. Complaint at para. 45. Therefore, in the very near future "plaintiffs and other U.S. workers must accept work at the adversely affected wage rates authorized by the new DOL wage regulations or they will forfeit these job opportunities to temporary foreign workers." Id. at P 46. Even if they turn down these jobs, American workers will be immediately injured by the wage deflation that will result if employers can begin importing workers at these depressed wage rates. Id. at P 47.
Plaintiff's documented injury is a direct result of the adverse action of the defendants (promulgating regulations which do not protect American workers) and this injury can be redressed through a favorable decision of this Court (striking down the regulations and ordering that new ones be issued). Accordingly, I find there is a case or controversy.
The defendants' second objection to review at this time is that the case is not ripe for adjudication. They point to the language of the statutory provision at issue which directs the Department to ensure that employment of aliens "will not adversely affect the wages . . ." 8 U.S.C. § 1186(a)(1)(B). Their argument is that because Congress used the words "will not," IRCA "speaks only in terms of the effects of the future use of H-2A workers on U.S. workers; it does not provide that wage rates under the H-2A program are to be designed to eliminate supposed past 'wage depression.'" Fed. Def. Br. at 9.
This argument is without merit. It ignores Congressional intent and it turns this important Congressional enactment on its head. Indeed, it is inconceivable to me that Congress would pass a statute codifying, approving of, and thus continuing the consistent past practice of the Department in protecting U.S. workers' wage rates, but at the same time want that mandate and protection to lay dormant until some future date at which it could be shown anew that there are depressed wages of U.S. workers to address. It is clear that in passing the statute Congress recognized the present depressed wages caused by alien labor and it is clear Congress wanted to rectify that wage depression immediately, by the passage of this very statute, not at some date in the future. Thus, I find that regulations passed this year must comply with the mandate set forth by Congress at 8 U.S.C. § 1186(a)(1)(B), notwithstanding the use of the word "will" in that section. The issue of whether these regulations promulgated as of June 1, 1987, (which are final and currently in effect) do indeed comply with the law is, therefore, an issue ripe for adjudication.
The defendants' third argument against review is that the mandate to the Secretary in IRCA is so broad as to be completely discretionary and thus beyond the review of a Court. See 5 U.S.C. § 701(a)(2) (judicial review of agency action is available except to the extent that "agency action is committed to agency discretion by law."). Defendants analogize the mandate of IRCA to statutes which are drawn so broad that "there is no law to apply and no issues capable of judicial resolution." Fed. Def. Br. at 12 (citations omitted). See, e.g., Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985) (judicial review precluded when "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion").
I find that in this case there is a meaningful standard against which to judge the agency's action. Specifically, IRCA requires the Department to ensure that the importation of foreign workers "will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1186(a)(1)(B). The regulations at issue can be judged to determine whether, in setting the AEWR at average wage rates, they protect the wages and working conditions of American workers as required by Congress. Moreover, despite defendants' argument that this issue is not capable of review, the reasonableness of DOL's AEWR has been the subject of judicial review on numerous occasions in the past. See, e.g., Florida Fruit & Vegetable Asso. v. Brock, 771 F.2d 1455 (11th Cir. 1985), cert. denied, 475 U.S. 1112, 106 S. Ct. 1524, 89 L. Ed. 2d 921 (1986); Production Farm Management v. Brock, 767 F.2d 1368 (9th Cir. 1985); NAACP v. Donovan, 247 U.S. App. D.C. 24, 765 F.2d 1178 (D.C. Cir. 1985); Shoreham Cooperative Apple Producers Asso. v. Donovan, 764 F.2d 135 (2nd Cir. 1985); Florida Sugar Cane League, Inc. v. Usery, 531 F.2d 299 (5th Cir. 1976); Limoneira v. Wirtz, 225 F. Supp. 961 (S.D.Ca. 1963) aff'd. 327 F.2d 499 (9th Cir. 1964).
The simple issue plaintiffs present is, once again, whether the regulations promulgated by the Department will sufficiently protect the U.S. workers so as to ensure that the importation of alien workers "will not adversely affect the wages and working conditions of workers in the United States similarly employed." 8 U.S.C. § 1186(a)(1)(B). I find that DOL has failed to demonstrate that the regulations it promulgated do anything to protect the wages and working conditions of workers in the United States and thus these regulations are contrary to law.
The Department argues that the passage of IRCA justifies its abandonment of the old AEWR methodology. See, e.g., 52 Fed. Reg. 20504 (June 1, 1987); Fed. Def. Br. at 1, 39. The Department contends that this is so because "the universe of employers who may seek H-2A workers could expand considerably as a result of IRCA." 52 Fed. Reg. 20504 (June 1, 1987). Accordingly, the Department decided to publish AEWRs for 49 states again this year, instead of just for the 14 user-states where depressed wages rates have been found by the Department. Id. Not surprisingly, when applying the traditional methodology to states without depressed wages as well as to the traditional user-states, DOL found "there would be wide variations between States in terms of the relationship of the AEWR to average hourly earnings . . ." Id. Thus, the Department simply decided to abandon the traditional methodology -- which had yielded AEWRs 20% above average hourly wage rates in user-states - and to set the so-called AEWR equal to average hourly earnings.
The Department's reliance on IRCA to justify this 20% reduction in American workers' wages is misplaced. Nothing in IRCA changes the mandate to the Secretary of Labor that he must protect American wages.
As noted above, see supra at slip op. 3-5, the new statutory provision adopts almost word for word the same mandate that DOL had been operating under pursuant to the INS regulations. Contrary to DOL's argument, Congress's codification of this language indicates an acceptance of the manner in which the Department had been implementing the INS regulations and the codification is a mandate from Congress to continue that same policy. See Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S. Ct. 1620, 1629 and n. 15, 84 L. Ed. 2d 674 (1985); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-82, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982); Lorillard v. Pons, 434 U.S. 575, 580-81, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978); Allen v. United States, 625 F. Supp. 841, 847 (D.D.C. 1986). Indeed, these cases hold that:
Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change . . . . So too, where . . . Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.