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September 10, 2002


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.*fn2

1. Statutory Context

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. ...

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