The opinion of the court was delivered by: Gladys Kessler, United States District Judge.
Plaintiffs are the United Farmworkers of America, AFL-CIO; Farm Labor
Organizing Committee, AFL-CIO; and Juan Flores and Juan Ramirez, who are
temporary foreign agricultural workers. They bring this action under the
Administrative Procedures Act ("APA"), 5 U.S.C. § 553, 706(1),
706(A), to enjoin Defendants, Elaine Chao, Secretary of Labor, and the
U.S. Department of Labor ("DOL") from adopting an interpretation of a
regulation concerning announcement of the minimum
rates that must be paid to foreign agricultural workers.
This matter is before the Court on the parties' motions for summary
judgment. Upon consideration of the motions, oppositions, replies, the
Motions Hearing held in this matter on August 19, 2002, and the entire
record herein, for the reasons stated below, the Court finds that
Defendants' Motion for Summary Judgment is granted in part and denied in
part, and Plaintiffs' Motion is granted in part and denied in part.
This case concerns a dispute over DOL's interpretation of its
regulation setting forth the minimum wage at which foreign temporary
agricultural workers may be employed. That wage is known as the "adverse
effect wage rate" or ("AEWR") and is published annually for each state by
DOL issues AEWRs under the Immigration and Naturalization Act of 1952
("INA"), as amended by the Immigration Reform and Control Act of 1986
("rRCA"), 8 U.S.C. § 1188(a).
The INA establishes the "H-2A program," which governs admission of
temporary foreign agricultural workers. Before an employer may hire
foreign agricultural workers, the INA requires the Secretary of Labor to
"certify" that: "(A) 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 services involved in the petition, and (B)
the employment of the alien in such labor or services will not adversely
affect the wages and working conditions of workers in the United States
similarly employed."*fn3 Id.
DOL has adopted regulations to implement Congress's mandate prohibiting
"adverse effects" on domestic wage rates. One of those regulations is the
AEWR regulation in dispute in this case.
The AEWR regulation provides in full:
(a) Computation and publication of AEWRs. Except as
otherwise provided in this section, the AEWRs for all
agricultural employment (except for those occupations
deemed inappropriate under the special circumstances
provisions of § 655.93 of this part) for which
temporary alien agricultural labor certification is
being sought shall be equal to the annual weighted
average hourly wage rate for field and livestock
workers (combined) for the region as published
annually by the U.S. Department of Agriculture (USDA)
based on the USDA quarterly wage survey. The Director
shall publish, at least once in each calendar year, on
a date or dates to be determined by the Director,
AEWRs for each State (for which USDA publishes
regional data), calculated pursuant to this paragraph
(a) as a notice or notices in the Federal Register.
20 C.F.R. § 655.107(a) (emphasis added)
B. Plaintiffs' Challenge to DOL's AEWR Policy
Plaintiffs' challenge to DOL's interpretation of the AEWR regulation
concerns when during the year AEWRs must be published. Since the
regulation was first adopted in 1987, DOL has always published the rates
prior to commencement of the H-2A employment period, which begins in April
and ends in October.
In 2001, DOL published AEWRs on August 2. DOL acknowledged that the
publication was later than usual, but explained that the regulation does
not require publication of the wage rates before December 31. See
Declaration of Christopher T. Spear, Assistant Secretary for Policy,
DOL, ¶ 5 ("Spear Decl."). DOL also explained that its delay was based
on a Memorandum from the then-new Administration, and on the urging of
certain Congress persons reviewing the H-2A program.*fn4
Plaintiffs contend that DOL essentially changed its AEWR wage policy in
2001 by publishing AEWRs in August and by insisting that it may continue
in future years to publish them as late as December 31. Specifically,
Plaintiffs argue that the December 31 publication deadline is a change in
policy because until new AEWRs for a given year are published, workers
receive only the AEWRs for the previous year. Plaintiffs emphasize that
as a result, the AEWRs paid for a given year will not "be equal to" the
USDA rates for that year, as required by the regulation. ...