United States District Court, D. Columbia.
REYMUNDO Z. MENDOZA, et al., Plaintiffs,
THOMAS E. PEREZ, in his official capacity, et al., Defendants,
WESTERN RANGE ASSOCIATION, et al., Intervenor-Defendants
For Reymundo Zacarias Mendoza, Francisco Javier Castro, Sergio Velasquez Catalan, Plaintiffs: Gregory A. Beck, LEAD ATTORNEY, Gupta Beck PLLC, Washington, DC USA; Allison Marcy Zieve, Julie A. Murray, PUBLIC CITIZEN LITIGATION GROUP, Washington, DC USA; Edward John Tuddenham, New York, N.Y. USA; Jennifer J. Lee, COLORADO LEGAL SERVICES, Denver, CO USA; Michael T. Kirkpatrick, INSTITUTE OF PUBLIC REPRESENTATION, Washington, DC USA; P. Alex McBean, UTAH LEGAL SERVICES, INC., Salt Lake City, UT USA.
For Alfredo Conovilca Matamoros, Plaintiff: Gregory A. Beck, LEAD ATTORNEY, Gupta Beck PLLC, Washington, DC USA; Edward John Tuddenham, New York, N.Y. USA; Jennifer J. Lee, COLORADO LEGAL SERVICES, Denver, CO USA; Julie A. Murray, PUBLIC CITIZEN LITIGATION GROUP, Washington, DC USA; Michael T. Kirkpatrick, INSTITUTE OF PUBLIC REPRESENTATION, Washington, DC USA; P. Alex McBean, UTAH LEGAL SERVICES, INC., Salt Lake City, UT USA.
For Hilda Solis, in her official capacity as United States Secretary of Labor, United States Department of Labor, Defendants: Geoffrey Forney, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.
For Western Range Association, Intervenor Defendant: Wendel Vincent Hall, LEAD ATTORNEY, Monte B. Lake, C.J. LAKE LLC, Washington, DC.
For Mountain Plains Agriculture Service, Intervenor Defendant: Wendel Vincent Hall, LEAD ATTORNEY, Monte B. Lake, C.J. LAKE LLC, Washington, DC; Carl W. Hampe, FRAGOMEN, DEL REY, BERNSEN & LOEWY LLP, Washington, DC USA.
BERYL A. HOWELL, United States District Judge.
This case is before the Court to determine the appropriate remedy to address the procedural violation of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 553, by the defendants Thomas E. Perez, in his official capacity as Secretary of Labor, and the U.S. Department of Labor (collectively, " Federal Defendants" ). Pending before the Court is the plaintiffs' motion for a remedial order " setting a schedule for the [Federal Defendants] to initiate and complete a rulemaking establishing terms and conditions of employment, including wages and housing benefits, that employers participating in the H-2A visa program must offer to sheepherders and open range livestock workers and a date on which the existing rules will be vacated." Pls.' Mot. for Rulemaking Schedule and Vacatur (" Pls.' Mot." ), ECF No. 49. For the reasons discussed below, this motion is granted in part and denied in part.
The factual and procedural history of this case will not be repeated here since this background is fully set out in this Court's prior Memorandum Opinion dismissing the suit for lack of both Article III and prudential standing, under Federal Rule of Civil Procedure 12(b)(1), and the D.C. Circuit's reversal of that conclusion. See Mendoza v. Solis, 924 F.Supp.2d 307, 310-15 (D.D.C. 2013), rev'd sub nom., Mendoza v. Perez, 754 F.3d 1002, 410 U.S.App.D.C. 210 (D.C. Cir. 2014). In short, the plaintiffs are U.S.
workers, who left their herding jobs by May, 2011, due to " the substandard wages and working conditions they attribute to the easy availability of foreign herders." Mendoza, 754 F.3d at 1007. They challenged two Training and Employment Guidance Letters (" TEGLs" ), which were published, on August 4, 2011, in the Federal Register by the Federal Defendants to implement a foreign worker visa program, under 8 U.S.C. § 1188(a)(1). Id. at 1007-08. The TEGLs " establish[ed] the minimum wages and working conditions employers must offer U.S. sheepherders, goatherders, and open-range (cattle) herders before hiring foreign herders." Id. at 1007.
The plaintiffs successfully argued before the D.C. Circuit that the challenged TEGLs " were subject to the notice and comment requirements [of the APA] because they possess all the hallmarks of a legislative rule," by " chang[ing] the regulatory scheme for herding operations." Id. at 1024-25. Specifically, absent the TEGLs, visa petitions for foreign herders " would be subject to the standards found in 20 C.F.R. part 655, which would, to take only a few examples, require employers to pay herders the higher of the AEWR, the prevailing wage, or the minimum wage, keep track of herders' hours, and pay herders at least twice a month. The TEGLs, on the other hand, require employers to pay only the higher of the prevailing wage rate or minimum wage, exempt employers from recording herders' hours actually worked, and allow employers to pay employees once monthly upon mutual agreement between employer and worker." Mendoza, 754 F.3d at 1024-25 (citing TEGL No. 15-06, 76 Fed.Reg. at 47, 244-46; TEGL No. 32-10, 76 Fed.Reg. at 47, 257-59).
The D.C. Circuit held that " the Department of Labor violated the Administrative Procedure Act by promulgating [the TEGLs] without providing public notice and an opportunity for comment," and remanded the case to this Court " to craft a remedy to the APA violation." Id. at 1025. To fashion an appropriate remedy, the Court directed consideration of " various factors including whether vacating the TEGLs would have a disruptive effect on the herding industry and how quickly the Department of Labor might be able to promulgate, pursuant to the procedural requirements of the APA, new H-2A regulations for herding operations." Id. (citing, for comparison, Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 8, 397 U.S.App.D.C. 313 (D.C. Cir. 2011) (where agency " failed to conduct a notice-and-comment rulemaking," remand was necessary, but " [b]ecause vacating the present rule would severely disrupt an essential security operation," rule was not vacated and agency was admonished " to act promptly on remand to cure the defect in its promulgation" ).
Following the D.C. Circuit's issuance of its opinion, and even before the mandate issued remanding the case, this Court directed the parties to " submit a joint status report . . . that either: (1) proposes an agreed upon remedy for the APA violation or (2) proposes a briefing schedule that will address the various factors the Court should consider in crafting a remedy." Minute Order, September 2, 2014. In response, the parties indicated that, although they agreed " that the Department of Labor must undertake notice-and-comment rulemaking to replace the [TEGLs] ...