H-2A program under the predecessor H-2 program. In fact, a "prevailing" standard aimed at protecting farmworker conditions was in effect as early as 1946, 11 Fed.Reg. 11278 (October 3, 1946), §§ 23.1(k), 21.12, an even more clear "prevailing practice" approach was fixed by regulations by 1959, 24 Fed.Reg. 9367 (November 20, 1959), and the "prevailing practice" approach was applied in early H-2 program regulations in the 1960s. See 32 Fed.Reg. 4570 (March 28, 1967). Apparently, however, "prevailing practice" has never been defined in the INA, in IRCA or in published regulations.
Defendants point to no evidence that the "double majority" was ever utilized by anyone in the Department until 1985 -- many years after adoption of the "prevailing practice" concept.
Defendants claim that the Handbook's disputed definition merely repeats a definition contained in previous "interpretive letters," dating back to 1979, that were issued by the Department without notice and comment. But these previous letters do not contain the disputed definition. The letters advise H-2A program staff that past farm employer practices should "be examined both in terms of the number of employers and the number of workers involved" but immediately thereafter instruct staff to "identify the number of orders containing the majority of workers who either were or were not offered a specific benefit. . . ." This language is far from a directive to strictly apply a "double majority" rule; it appears instead to be an instruction simply to take into account both employers and employees in making a discretionary choice as to whether a practice is "prevailing." In sharp contrast, when questioned by the Court at oral argument, agency counsel stated categorically that the handbook definition is mandatory, binding Department policy, not simply a factor to guide the discretion of regional administrators. See Batterton, 648 F.2d at 701-02 (binding nature of an agency policy indicates that it is a legislative rule).
The Department also points to a 1985 letter from the Acting Administrator for Regional Management in response to a query from the Philadelphia regional administrator. This letter clearly does state that a "double majority" is required in order to find a "prevailing practice." But the only authority for the "double majority" cited in the letter is one of the inconclusive interpretative letters discussed supra. Moreover, this single piece of correspondence to a single official is the only evidence offered that the "double majority" was mandatory prior to publication of the 1988 handbook. The Department has produced no evidence that the "double majority" approach was a policy made clear to other regional authorities charged with identifying prevailing practices. In addition, the fact that the Philadelphia official sought guidance as to the meaning of "prevailing practice" in 1985 belies the Department's claim that the "double majority" rule had been in effect since 1979.
The Department also claims that a 1987 letter sent to it by plaintiffs' counsel in this action complained of an instance in which the Department applied a "double majority." In fact, the letter makes clear the attorney's view that the Department had not applied a consistent definition of "prevailing practice"; the letter suggests that the attorney was concerned not about a "double majority" requirement but rather about an incident involving an allegedly result-oriented switch from a "number of employees" test to a "number of employers" test.
On the other hand, plaintiffs call to the Court's attention a 1987 ruling by a District of Columbia-based Labor Department Administrative Law Judge that "prevailing practice" meant majority of employers only -- an indication that the Department's supposedly fixed policy was not well-known at the time. In the Matter of Azor v. Hepburn Orchards, Inc. (J.S. Case Nos. 4630-83-17, 4630-83-50 December 14, 1987).
Defendants, moreover, have not produced a single affiant who can attest from personal knowledge to the longevity of the disputed definition. In the single affidavit provided, a high-ranking Department official states that "upon review of the Department's information and files on this matter, I have determined that this definition is not a departure. . . ." But this official cites the same unconvincing documents previously discussed.
In sum, the record indicates that the disputed definition effected a substantive policy change in that it imposed a mandatory "double majority" test on what was previously a less guided and more discretionary inquiry by decisionmakers at the regional level. Moreover, the "double majority" standard appears not to be a simple interpretation of the INA or IRCA but rather appears to add substantive content to laws aimed at protecting domestic farmworkers while permitting entry of temporary foreign workers.
Defendants, faced with the relatively straightforward task of proving the existence of a mandatory policy, came up almost empty-handed. The plaintiffs faced a greater challenge, i.e. proving that such a policy did not exist. By questioning the significance of each piece of defendants' evidence, they have met this task to reasonable certainty, demonstrating to the Court's satisfaction that the "double majority" was not a long-established mandatory policy at the time of publication of the 1988 H-2A handbook.
Accordingly, defendants are not entitled to dismissal or summary judgment. Nor are plaintiffs correct that further "substantial discovery efforts" are required to resolve this case. Undisputed facts in the record, i.e. the Labor Department documents discussed supra, indicate that the "double majority" is a legislative rule. Therefore, "no useful purpose would be served by delaying the entry of summary judgment" for the non-moving party, and a sua sponte grant of summary judgment to the plaintiffs is required on their notice and comment claim. Kennedy v. Whitehurst, 509 F. Supp. 226 (D.D.C. 1981), aff'd, 223 U.S. App. D.C. 228, 690 F.2d 951 (D.C.Cir. 1982).
The Department is directed to engage in informal notice and comment rulemaking with respect to the definition of "prevailing practice" under the H-2A visa program.
Given the failure of plaintiffs to allege with specificity any ongoing harm from the disputed definition, and the deference generally owed to an agency's interpretation of its own regulations, see Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965); cf. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (deference to agency interpretation of a statute), the Court will not enjoin operation of the rule during the pendency of the rulemaking, but it will direct that the rulemaking proceed promptly. The Department may set its own reasonable schedule, but the rulemaking shall be completed and a final rule published with dispatch.
Plaintiff's second claim, that the disputed definition is unreasonable, is premature. Notice and comment procedures pursuant to informal rulemaking will permit growers as well as worker representatives to comment on the definition and propose alternatives and will permit the Department to explain, based on materials in the rulemaking record, the reasons for the result it ultimately reaches.
A separate Order accompanies this Memorandum.
ORDER - February 27, 1990, Filed
Upon consideration of the pending motions, the opposition thereto and the entire record herein, and for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that defendants' motion to dismiss or alternatively for summary judgment is denied in part and granted in part; and it is further
ORDERED that plaintiffs Burgos and Quiros are dismissed from the case for lack of standing; and it is further
ORDERED that summary judgment is entered by the Court sua sponte for plaintiff CATA on the complaint's first cause of action; and it is further
ORDERED that the Department of Labor shall undertake informal notice and comment rulemaking pursuant to the Administrative Procedures Act with respect to the definition of "prevailing practices" for purposes of the H-2A visa program, such rulemaking to culminate in publication of a final rule with dispatch; and it is further
ORDERED that the definition of "prevailing practices" in the June 1988 H-2A handbook shall remain in effect pending completion of the rulemaking; and it is further
ORDERED that the complaint's second cause of action is dismissed without prejudice for lack of ripeness; and it is further
ORDERED that defendants' unopposed motion to file a reply to plaintiffs' surreply on defendants' motion is granted; and it is further
ORDERED that plaintiffs' unopposed motion for oral argument is granted nunc pro tunc.