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Hispanic Affairs Project v. Perez

United States District Court, D. Columbia

October 31, 2015

THOMAS E. PEREZ, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants

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          HISPANIC AFFAIRS PROJECT, Plaintiff, Pro se, Denver, CO.

         For THOMAS E. PEREZ, in his official capacity as United States Secretary of Labor, Defendant: Erez Reuveni, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.

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         BERYL A. HOWELL, J.

         The Court is confronted with a request for a preliminary injunction to halt a government visa program for temporary agricultural workers based on an administrative rule that has already been held invalid after extensive litigation, including an appeal, and is due for replacement in less than one month. The challenged rule is, consequently, operating on borrowed time. Yet, despite belatedly raising their particular objection to the challenged rule several years after the original litigation was begun and over one year after a remedial order was put in place, the plaintiffs nevertheless claim irreparable harm from its continued operation and, further, that imposition of an injunction, which would effectively result in an abrupt modification of

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the remedial order, would serve both equitable and the public interests.

         Specifically, on October 7, 2011, a group of Americans, who were formerly open-range agricultural workers, brought an action against the United States Secretary of Labor and United States Department of Labor (" DOL" ), challenging the validity of two Training and Employment Guidance Letters (" TEGLs" ) issued in 2011 for failing to comply with the notice-and-comment requirements of the Administrative Procedural Act (" APA" ), 5 U.S.C. § 553.[1] Mendoza v. Solis, 924 F.Supp.2d 307, 310 (D.D.C. 2013). These TEGLs provide special procedures for hiring foreign temporary workers on general agricultural H-2A visas to work as cattle, goat and sheep herders on the open range on terms intended to avoid adversely affecting the wages and working conditions of U.S. workers similarly employed. Almost three years later, the D.C. Circuit reversed this Court's finding that the plaintiffs lacked standing and, on the merits, held that the 2011 TEGLs were subject to the APA's notice-and-comment requirements and, thus, were procedurally invalid. Mendoza v. Perez, 754 F.3d 1002, 1024, 410 U.S.App.D.C. 210 (D.C. Cir. 2014). On remand, this Court entered a remedial order, directing the government to promulgate a new rule according to notice-and comment procedures and, with the consent of all parties, required vacatur of the invalid 2011 TEGLS upon the effective date of the new rule. Mendoza v. Perez, 72 F.Supp.3d 168, 175 (D.D.C. 2014) (" Remedial Order" ).

         Nearly a year after entry of the Remedial Order, and less than three months shy of the effective date of the new rule, on August 18, 2015, the plaintiffs--an American former sheepherder, a foreign sheepherder currently employed on a temporary H-2A visa and a nonprofit membership organization for Hispanic immigrant workers, Compl. ¶ ¶ 3-5, ECF No. 2--filed this lawsuit against the defendants United States Secretary of Labor, the Department of Labor, and the Assistant Secretary of Employment and Training Administration, Department of Labor (collectively, " defendants" ), id. ¶ ¶ 6, 8, challenging DOL's application of one component of the soon-to-be-superseded 2011 Sheepherder TEGL.[2]

         The challenged component of the 2011 Sheepherder TEGL outlines the methodology to be used by DOL in determining the minimum offered wage rate required for DOL's certification of employer applications for H-2A visas for foreign sheep and goatherders. This methodology is entirely changed in a new rule, which was published on October 16, 2015, and becomes effective on November 16, 2015. See Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the

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United States (" 2015 Rule" ), 80 Fed.Reg. 62,958 (Oct. 16, 2015) (to be codified at 20 CFR pt 655). Under this new rule, the new monthly prevailing wage rate will be phased in over two years and will be determined by using the base federal minimum wage of $7.25 per hour, multiplied by 48 hours per week, multiplied by 4.333 weeks in a month, multiplied by 80% for the first year, resulting in a new monthly wage of $1206.31 as of the effective date. 2015 Rule, 80 Fed.Reg. at 63,014 n.62.

         The 2015 Rule, when it becomes effective, will replace and vacate both of the invalid 2011 TEGLs. Remedial Order, 72 F.Supp.3d at 175. Now pending before the Court is the plaintiffs' Motion for Preliminary Injunction (" Pls.' Mem." ), ECF No. 1, to enjoin DOL from certifying any new H-2A applications at the current, challenged wage rate. Although DOL has conceded the deficiencies in the methodology provided in the 2011 Sheepherder TEGL and acknowledged that these procedures have resulted in stagnant wages for herders on the open range, see 2015 Rule, 80 Fed.Reg. 62,986, the plaintiffs have not carried their burden of demonstrating that the extraordinary remedy of a preliminary injunction is warranted. Consequently, the plaintiffs' request for preliminary injunctive relief is denied.

         I. BACKGROUND

         Background relating to the operation of the H-2A visa program and the reasons for invalidation of the 2011 TEGLs are fully described by the D.C. Circuit in Mendoza, 754 F.3d at 1007-1010, and, consequently, only briefly summarized here.

         A. The H-2A Statutory Regime

         The Immigration and Nationality Act (" INA" ) authorizes the grant of temporary work visas to any nonimmigrant alien " having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services." 8 U.S.C. § 1101(a)(15)(H)(ii)(a). In order to hire such foreign workers, American employers must first obtain certification from the Secretary of Labor, who may certify, or approve, the temporary work visas, called H-2A visas, when, inter alia, (1) " 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 or services involved in the petition," and (2) " 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." Id. § 1188(a)(1).

         In order to ensure that the employment of H-2A workers does not " adversely affect the wages and working conditions" of domestic workers, DOL has adopted regulations setting minimum wages and working conditions provided to domestic and foreign workers. Mendoza, 754 F.3d at 1008. In particular, DOL requires H-2A employers to pay their hourly workers the highest of what is known as an adverse effect wage rate (" AEWR" ), " the prevailing wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage." 20 C.F.R. § 655.122(l). The AEWR, calculated using the Department of Agriculture's Farm Labor Survey (" FLS" ), is intended to " approximate[ what the prevailing wage would be if not for the hiring of foreign workers." Mendoza, 754 F.3d at 1008 (citing Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed Reg. 6884, 6891-93 (Feb. 12, 2010)).

         DOL does not apply the AEWR to open-range herders, such as cattleherders, sheepherders and goatherders, however, because of the " unique occupational characteristics of herding--including spending extended periods in isolated areas and being

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on call twenty-four hours a day, seven days a week to protect livestock." Mendoza, 754 F.3d at 1008-9 (internal citations omitted). Instead, the 2011 TEGLs provide special variances from the default AEWR and impose different methods of calculating the prevailing wage for each state, which is the minimum the employers are required to pay foreign H-2A open-range herders. Id. at 1008.

         B. The Mendoza Litigation and Remedial Order

         In October 2011, Americans who were formerly open-range herders filed a lawsuit in this Court against the Secretary of Labor and the Department of Labor, challenging the validity of the 2011 TEGLs for lack of notice-and-comment procedures required under the APA. Mendoza, 924 F.Supp.2d at 314. The plaintiffs succeeded in their challenge, and, in June 2014, the D.C. Circuit remanded the case to " craft a remedy to the APA violation," taking into consideration " 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." Mendoza, 754 F.3d at 1025.

         Following ample briefing and consideration of multiple factors, including those expressly cited by the D.C. Circuit, in October 2014, this Court, with the consent of all parties and to minimize disruptive effects on the industry, retained in effect the invalidated TEGLs until the effective date of the new rule, which was set " to be no later than 30 days after the rule's publication or December 1, 2015, whichever is earlier." Remedial Order, 72 F.Supp.3d at 175. In accordance with the time schedule set out by this Court, in April 2015, DOL published notice for comment of a proposed rule to replace the 2011 TEGLs. See Notice of Proposed Rule on Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States (" NPRM" ) (Apr. 15, 2015), 80 Fed.Reg. 20,300. Towards Justice, counsel to the plaintiffs in this case, along with fifty-three other groups and three individuals, commented on the NPRM, noting that the proposed rule " is a welcome change that begins to address the wage stagnation in the industry." Comments of Farmworker Justice, et al. at 1, Docket No. ETA-2015-0004-0460 (June 1, 2015).

         C. The Instant Case

         On August 18, 2015, four months after the publication of the NPRM, and less than three months before publication of the final new rule, the plaintiffs filed the instant action in the United States District Court for the District of Colorado. Compl. ¶ 37. The plaintiffs--Hispanic Affairs Project, an organization with members who are both former and current H-2A sheepherders, Pls.' Mem. Ex. J (" HAP Director Decl." ) ¶ ¶ 4, 13, ECF No. 1-10; Rodolfo Llacua, a former sheepherder and U.S. citizen who avers that he cannot pursue his preferred profession of sheepherding because of the low wages set by DOL, Pls.' Mem. Ex. K (" Llacua Decl." ) ¶ 12, ECF No. 1-11; and John Doe, a current H-2A sheepherder who avers that he is hardly making enough, at the challenged wage rate, to support himself and his family, Pls.' Mem. Ex. L (" Doe Decl." ) ¶ 5, ECF No. 1-12--claim that the defendants did not follow the 2011 Sheepherder TEGL when determining the prevailing wage rates at which it certifies H-2A sheepherder applications, and that they have been harmed by the illegally low wages. See Pls.' Mem. at 1-2.

         After the United States Court for the District of Colorado ...

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