of future events. Plaintiffs claim that operation of the emergency procedures will injure them in two ways. First, in years such as 1990, where the Secretaries announce a shortage number of zero despite the existence of a significant labor surplus, the plaintiffs claim that the emergency adjustment will be made to the zero figure rather than to the actual negative shortage number that is derived when supply is subtracted from need. Second, the plaintiffs claim that the regulations promulgated by the Secretaries to implement the emergency procedures violate the statute which they implement by disregarding the shortage number and by permitting easier invocation of the procedures than that authorized in the statute. These aspects of the emergency provisions injure the plaintiffs by permitting the admission of a greater number of additional foreign workers than that permitted by the statute and basing such admission on a more lenient threshold showing. The result of these statutory violations is to create additional competition for domestic laborers like the plaintiffs.
Without considering the merits of the claims raised by the plaintiffs, the Court notes that the emergency provisions of the RAW program have not been invoked to date; therefore, any claims as to how they would operate to injure the plaintiffs are, by their nature, predictions of future conduct.
Moreover, in light of the existence of a significant labor surplus for seasonal agricultural services in 1990 and 1991, it is speculative as to whether the emergency provisions will ever be invoked during the four years in which the RAW program is to operate. Thus, in addition to its concerns about the plaintiffs' standing to raise these claims, the Court is also faced with the question of whether the plaintiffs' claims of threatened injury present a justiciable case or controversy. In this context, the Court is wary to issue what may be no more than an advisory opinion as to how the emergency provisions should be operated. However, the Court finds that should the emergency provisions be invoked at some point in the future, the plaintiffs are afforded adequate opportunity to challenge their operation through the notice and comment procedures required by the emergency provisions. 8 U.S.C. § 1161(a)(7)(B). Accordingly, the Court holds that the plaintiffs' claims of threatened injury are not ripe for judicial consideration.
The Court also bases its dismissal of the plaintiffs' claims as to the operation of the emergency provisions on the plaintiffs' lack of standing. The Court finds that the plaintiffs' allegations concerning the invalid operation of the emergency procedures constitute no more than overly speculative predictions of how the Secretaries will act. The predictions are not supported by the statute or the regulations and have been persuasively contradicted by the defendants.
As to the first allegation, there is no evidence that the secretaries will use zero as a basis for determining the increase in shortage number required by an emergency situation. The defendants have explained that there is a difference between the shortage number calculated and the number of aliens permitted to enter the country in a given fiscal year. The first number is used to determine what number, if any, of aliens will be admitted. The defendants have never suggested that the shortage number was not a negative number, they simply maintain that their duty to report to the public is limited to notice of the number of aliens to be admitted. Therefore, it does not follow, as the plaintiffs seem to assume, that the defendants will ignore the labor surplus and consider the shortage number to be zero for purposes of determining whether an increase in that number is warranted by a request filed under the emergency provisions. In fact, counsel for the defendants stated in oral argument that it is the negative shortage that is referred to and not the zero figure in determining whether to increase the shortage number. Thus, this action predicted by the plaintiffs is not only speculative, but almost certain not to occur.
The plaintiffs' second allegation, that the regulations implementing the emergency provisions violate the RAW statute is not speculative but simply contradicts the plain language of the statute and regulation. The plaintiffs claim that the regulations "permit the granting of emergency increases in the absence of any showing that extraordinary, unusual and unforeseen circumstances have resulted in a significant increase in the shortage number." This allegation is based on the fact that the statute requires a showing that unforeseen circumstances have resulted in "a significant increase in the shortage number," whereas the regulation requires a showing that the unforeseen circumstances resulted in "significant shortage of workers to perform [seasonal agricultural services]." Pl. Memorandum at 35. The Court finds, however, that the language of the regulation refers to the same effect as the language of the statute. The shortage number represents the extent to which the need for labor exceeds the supply available domestically. Thus, it is equivalent to the "shortage of workers to perform seasonal agricultural labor." Moreover, because both the regulation and the statute require a significant shortage (or increase in the shortage number) before the emergency provisions can be invoked, the regulation does not allow the admission of foreign labor beyond that permitted by the statute. Thus, the Court rejects the plaintiffs' claim that it may be subjected to future injury by the operation of the regulation.
Because the Court finds that the plaintiffs have failed to establish standing to assert any of the claims presented in this action, judgment is entered in favor of the defendants.
JUDGMENT ORDER - December 28, 1990, Filed
In accordance with the Memorandum and Opinion filed in the above-captioned case, judgment hereby is entered in favor of the defendants.
December 28, 1990