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Hispanic Affairs Project v. Perez

United States District Court, District of Columbia

September 9, 2016

HISPANIC AFFAIRS PROJECT, et al., Plaintiffs,
v.
THOMAS E. PEREZ, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge.

         The plaintiffs-an American former sheepherder, two foreign sheepherders currently employed in the United States on temporary H-2A visas, one former H-2A herder who intends to return to the United States to work as a herder on an H-2A visa, and a nonprofit membership organization for Hispanic immigrant workers, Second Amended Compl. (“SAC”) ¶¶ 4-8, ECF No. 58; Pls.' Notice Regarding Pl. John Doe, ECF No. 81-initially filed this lawsuit, on August 18, 2015, against the United States Secretary of Labor, the Department of Labor (“DOL”), and DOL's Assistant Secretary of Employment and Training Administration (collectively, “DOL Defendants”), challenging the DOL's application of two administrative rules set out in Training and Employment Guidance Letters (“TEGLs”) issued in 2011. See generally Compl., ECF No. 2; see also Mendoza v. Perez, 754 F.3d 1002, 1024 (D.C. Cir. 2014). The 2011 TEGLs provided 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.

         At the time of filing the instant lawsuit, the 2011 TEGLs had already been held invalid in the Mendoza litigation and were operating on borrowed time, pending the effective date of a superseding rule, pursuant to a remedial order entered with the agreement of all parties in the Mendoza litigation to avoid disruption in the industry. See Mendoza v. Perez, 72 F.Supp.3d 168, 175 (D.D.C. 2014) (“Remedial Order”). Indeed, less than three months after the instant suit was filed, the 2011 TEGLs were superseded by a new 2015 rule, made effective on November 16, 2015.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 United States (“2015 Rule”), 80 Fed. Reg. 62, 958 (Oct. 16, 2015) (codified at 20 C.F.R. § 655).

         Thereafter, the plaintiffs amended their complaint twice, adding claims as well as defendants, including two federal government defendants, the United States Secretary of Homeland Security and the Department of Homeland Security (“DHS”) (collectively with original defendants, “Federal Defendants”), and two private defendants, the Western Range Association (“WRA”) and the Mountain Plains Agricultural Service (“MPAS”) (collectively, “Association Defendants”), who are alleged to be joint employers of sheepherders subject to the superseded 2011 TEGLS and to the new 2015 Rule. SAC ¶¶ 13-17. The operative complaint now asserts seven claims against the Federal Defendants, challenging DOL's application of the superseded 2011 TEGLs and the substance of the new 2015 Rule, and two additional claims against the Association Defendants, seeking back pay under both the 2011 TEGLs and 2015 Rule, which administrative rules the plaintiffs allege are invalid, thereby entitling the foreign sheepherders “to the difference between the unenforceable wage term and a reasonable wage.” Id. ¶¶ 103-26.

         Pending before the Court are the Federal Defendants' motion to dismiss and the Association Defendants' multiple motions to dismiss, strike, sever, transfer venue, and reconsider the order denying their motion to disallow one of the plaintiffs from proceeding under a pseudonym. See Gov't Defs.' Mot. Dismiss (“Gov't's Mot.”), ECF No. 64; Defs. MPAS and WRA's Mot. Dismiss Pls.' Second Am. Compl. Pursuant to Fed.R.Civ.P. 12 (B)(1) and (6), Motion to Strike Pursuant to Fed.R.Civ.P. 12(f), Mot. to Sever and Transfer Venue, and Motion to Reconsider Order on Motion to Proceed under a Pseudonym (“Ass'n Defs.' Mot.”), ECF No. 63. For the reasons set out below, the Federal Defendants' motion to dismiss is granted in part and denied in part, and the Association Defendants' motions to sever and transfer are granted and their motions to dismiss, strike, and to reconsider the order on motion to proceed under a pseudonym are denied, without prejudice.

         I. BACKGROUND

         The operation of the H-2A visa program and the invalidation of the 2011 TEGLs leading to the Remedial Order have been described in detail in prior opinions of this Court and the D.C. Circuit. See Hispanic Affairs Project v. Perez, 141 F.Supp.3d 60, 63-66 (D.D.C. 2015), vacated and remanded Mendoza v. Perez, 754 F.3d 1002, 1024 (D.C. Cir. 2014); Remedial Order, 72 F.Supp.3d at 169-71. This background is, consequently, only briefly summarized here, followed by a review of the plaintiffs' claims and the pertinent procedural history.

         A. The H-2A Statutory Regime and the Open Range Herder Rules

         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)(A). DHS, upon consultation of DOL's labor certification, ultimately issues the visas. Id. § 1184(c)(1).[1]

         To satisfy the statutory mandate that H-2A workers 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 hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage.” 20 C.F.R. § 655.120(a). The AEWR does not apply 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 on call twenty-four hours a day, seven days a week to protect livestock.” Mendoza, 754 F.3d at 1008-09. Instead, the 2011 TEGLs provided special variances from the default AEWR and imposed different methods of calculating the prevailing wage for each state, which is the minimum that employers are required to pay foreign H-2A open-range herders. Id. at 1008.

         In October 2011, four Americans, who had all stopped working as open-range herders at least one year before the 2011 TEGLs went into effect, sued the Secretary of Labor and the Department of Labor, challenging the procedural validity of the 2011 TEGLs due to their promulgation without notice-and-comment as required under the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq. See Mendoza, 924 F.Supp.2d 307, 310 (D.D.C. 2013).[2] The plaintiffs succeeded in their challenge, and this Court, with the consent of all parties and to minimize disruption in 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 court-ordered time schedule, in April 2015, DOL published notice for comment on 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 53 other groups and 3 individuals, commented on the NPRM, with the general appraisal being 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). Towards Justice stated that they “applaud and appreciate elements of the proposed rule that will greatly benefit both temporary foreign workers and U.S. workers alike, including long-overdue wage increases and other proposed provisions that seek to address the poor working conditions.” Id. Echoing their complaints about the 2015 Rule in this case, however, Towards Justice expressed disagreement with DOL's proposed 44-hour workweek as the basis for the monthly salary because “worker surveys indicate that most workers average in excess of 80 hours per week while on the open range, ” and the lack of distinction “between time spent on the ranch performing ranch duties and time spent on the range.” Id. at 1-2.[3]

         On October 16, 2016, DOL published the final rule, which became effective on November 16, 2015, two weeks earlier than the deadline set by the Remedial Order. See generally 2015 Rule; 20 C.F.R. § 655. The 2015 Rule effectively raised the prevailing wage from $750 per month in most states under the 2011 TEGLs to around $1206 per month, see 80 Fed. Reg. at 62, 987 (former prevailing wage rate), 70, 840-01 (new prevailing wage rate), in addition to requiring employers to provide, free of charge, all necessary tools, supplies and equipment, id. at 62, 977, 62, 980-81; communication arrangements to enable herders working in remote locations, where electronic communications may not operate effectively, to have a method to provide regular updates, id. at 62, 977; and either three sufficient meals per day or free kitchen facilities and adequate food provisions, id. at 62, 981-82.

         B. The Plaintiffs' Claims

         The plaintiffs in this case are (1) the Hispanic Affairs Project (“HAP”), an organization with members who are both current and former H-2A sheepherders, SAC ¶ 4; (2) two current H-2A sheepherders, Alfredo Salcedo and Rafael De La Cruz, who allege they were employed pursuant to DOL certifications issued under both the 2011 TEGLs and the new 2015 Rule, id. ¶¶ 6-7; (3) John Doe, a former H-2A sheepherder, who is currently in his country of origin but who intends to return to the United States to work as an H-2A shepherd in the near future and who also alleges that he was employed pursuant to DOL certifications under both the 2011 TEGLs and the 2015 Rule, id. ¶ 5; Pls.' Notice Regarding Pl. John Doe; and (4) 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, SAC ¶ 8. Overlapping groups of these plaintiffs assert three categories of claims against the Federal Defendants and the Association Defendants.

         First, in Counts One through Four, a group of plaintiffs challenge the already invalid and vacated 2011 TEGLs for authorizing the payment of illegally low wages. Specifically, HAP and the three current and former H-2A sheepherders, on their own behalf, and on behalf of a class of “all persons who worked as shepherds under the United States Department of Labor's 2011 Shepherd TEGL within the relevant statute of limitations” (“2011 Shepherd TEGL Class”), id. ¶ 62, allege that DOL violated the APA by not complying with the 2011 TEGLs when determining the prevailing wage rates applicable to certifications of H-2A sheepherder applications, causing the plaintiffs to be harmed by illegally low wages, see Id. ¶¶ 103-10.

         Second, in Counts Five through Seven, all of the plaintiffs, on their own behalf, and on behalf of a class of “all persons who have worked as herders under the United States Department of Labor's H-2A visa programs and were or are subject [to the] 2015 Rule, ” id. ¶ 63, allege that DHS and DOL violated the APA by issuing H-2A visas and approving labor certifications, pursuant to the new 2015 Rule because this new rule (1) “authoriz[es] the creation of permanent herder jobs, ” in contravention of the statutory mandate; (2) “rel[ies] on data to calculate herder hours and the base-rate of pay that were arbitrarily derived;” and (3) “authoriz[es] an illegally expansive definition of ‘herder' and ‘range, '” id. ¶¶ 111-16.

         Finally, in Counts Eight and Nine, the three current and former H-2A herders seek back pay from the Association Defendants, due to the illegal 2011 TEGLs and the allegedly unlawful 2015 Rule, on their own behalf, and on behalf of a class of “all persons who entered into contracts as H-2A Shepherds with the WRA during any time which H-2A shepherd minimum wages were established by DOL using the H-2A Special Procedures within the relevant statute of limitations, ” id. ¶ 78, and a class of “all persons who entered into contracts as H-2A herders with the MPAS during any time which H-2A shepherd minimum wages were established by DOL using the H-2A Special Procedures within the relevant statute of limitations, ” id. ¶ 91. The amount of back pay sought is the difference between the minimum wages set under the invalid 2011 TEGLs and the current 2015 Rule and a “reasonable wage.” id. ¶¶ 117-26.

         C. Procedural History

         The plaintiffs initially filed the instant lawsuit in the United States District Court for the District of Colorado. After that court denied the plaintiffs' ex parte motion for a temporary restraining order and set a briefing schedule for the plaintiffs' motion for a preliminary injunction, the case was transferred, by joint motion of the parties, to this Court as related to the Mendoza litigation. Joint Motion to Transfer Case to this Court, ECF No. 15; Order, dated September 25, 2015, ECF No. 19; Defs.' Notice of Related Case, dated September 29, 2015, ECF No. 23; Pls.' Notice of Related Case, dated September 30, 2015, ECF No. 24; Order, dated October 5, 2015, ECF No. 25.

         The plaintiffs then sought preliminary injunctive relief “enjoin[ing] DOL from certifying any additional H-2A Applications for Temporary Employment Certifications (“H-2A Applications”) for H-2A sheepherders at the illegal wage floor.” Pls.' Mem. Supp. Prelim. Injunction at 2. Following a hearing, the Court denied the plaintiffs' motion for a preliminary injunction, despite finding that “[t]he plaintiffs have persuasively pointed out the deficiencies in the wage rates implemented under the authority of the 2011 [] TEGL.” Hispanic Affairs Project, 141 F.Supp.3d at 67. The extraordinary relief of a preliminary injunction was not warranted because the plaintiffs failed to demonstrate they would otherwise suffer irreparable harm or that the balance of equities and the public interest weighed in favor of the relief sought. Id. at 68. The Court noted that the “timing of the plaintiffs' lawsuit undermines their argument that they are suffering irreparable harm, ” since “the plaintiffs have had ample notice that the challenged wage rates issued under the 2011 Sheepherder TEGL were problematic but failed to bring a lawsuit until just a few months before that rule will be vacated.” Id. at 68-69. Moreover, the Court rejected the plaintiffs' argument that a preliminary injunction enjoining new labor certifications was necessary to obtain back pay in the future from employers, who were not then parties to the litigation, explaining that in other cases, “the key issue [] was not whether a preliminary injunction was issued, but whether” the employers “reasonably relied upon DOL's approvals . . . after they were put on notice, by the complaint, that the regulation may be found invalid later.” Id. at 73-74 (discussing Frederick Cty. Fruit Growers Ass'n v. Martin, 968 F.2d 1265, 1274 (D.C. Cir. 1992) and Morrison v. Dep't of Labor, 713 F.Supp. 664, 671 (S.D.N.Y. 1989)). At the same time, the Court found that the requested preliminary injunction would “bring the H-2A program to a halt, harming American employers who rely on H-2A workers[, ] . . . the communities that rely on those industries, [] participants in the larger market for goods and services derived from sheep and goats, as well as foreign workers who seek work through the H-2A program.” Id. at 74 (internal quotations omitted).

         Less than three weeks after the denial of preliminary injunctive relief, the 2015 Rule went into effect, superseding the 2011 TEGLs, pursuant to which the plaintiffs brought their initial complaint. See generally 2015 Rule. The plaintiffs continue, however, to press their challenge to DOL's application of the 2011 TEGLs in order to bolster their claims for back pay against the Association Defendants. See generally SAC.

         Ripe for resolution are the Federal Defendants' motion to dismiss for lack of standing and for failure to state a claim, and the Association Defendants' motions to dismiss, or, in the alternative, to sever and transfer, to strike, and to reconsider the Colorado court's order permitting the plaintiff John Doe to proceed pseudonymously.[4]

         II. LEGAL STANDARDS

         A. Motion to Dismiss Under 12(b)(1)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiffs bear the burden of demonstrating the court's subject-matter jurisdiction over their claims. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). “‘Federal courts are courts of limited jurisdiction, ' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts are “forbidden . . . from acting beyond our authority, ” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the constitutional and statutory authority exist for us to hear each dispute, '” James Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case, the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); Fed.R.Civ.P. 12(h)(3).

         When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint, Am. Freedom Law Center v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016), and “‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged, '” Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

         Moreover, in evaluating subject matter jurisdiction, the court, when necessary, may “‘undertake an independent investigation to assure itself of its own subject matter jurisdiction, '” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107-08 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir. 1987)), and “consider[] facts developed in the record beyond the complaint, ” id.; see also Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992) (disposing of a motion to dismiss for lack of subject matter jurisdiction and explaining that, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts”). To do so, “the district court may consider materials outside the pleadings.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Belhas v. Ya'alon, 515 F.3d 1279, 1281 (D.C. Cir. 2008) (examining materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction); Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (noting that courts may consider materials outside the pleadings in ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction).

         B. Motion to Dismiss Under 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the “‘complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Wood v. Moss, 134 S.Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely consistent with' a defendant's liability, ” but “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment] to relief, ” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the] claims across the line from conceivable to plausible, ” id. at 570. Thus, “a complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557).

         In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555; Sissel v. U.S. Dep't of Health and Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014) (in considering a Rule 12(b)(6) motion, explaining that “[t]he court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct”) (internal quotations and citation omitted)). In addition, courts may “ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also English v. D.C., 717 F.3d 968, 971 (D.C. Cir. 2013) (“We may consider attachments to the complaint as well as the allegations contained in the complaint itself.”).

         III. DISCUSSION

         The Federal Defendants and the Association Defendants move separately to dismiss the three groups of claims asserted by the plaintiffs: (1) claims in Counts One through Four challenging DOL's application of the 2011 TEGLs; (2) claims in Counts Five through Seven challenging the 2015 Rule; and (3) claims in Counts Eight and Nine against the Association Defendants for back pay under the 2011 TEGLs and the 2015 Rule. The Association Defendants further move, in the alternative, to sever and transfer the two claims for back pay against them. Since the alleged injuries and causes of action implicated by each group of claims are different, the Court considers the defendants' motions as to each of the three groups of claims seriatim below.

         A. Counts One Through Four-Claims Arising from the 2011 TEGLS

         The plaintiffs allege that DOL failed to apply properly the now-superseded 2011 TEGLs to determine the prevailing wage rates for H-2A herders, in violation of the APA, during virtually the entire period these administrative rules were in effect. See SAC ¶¶ 47-48. This failure by DOL led to widespread wage stagnation within the herding industry, a fact acknowledged by DOL in the NPRM for the 2015 Rule, and resulted in the exclusion of American citizens who otherwise would have worked as sheepherders, but for the illegally low wages and the exploitation of foreign H-2A workers. See Id. ¶¶ 5-8, 47; NPRM, 80 Fed. Reg. 20, 300, 20, 307-08 (admitting that “for many years, the Department has been unable to determine a statistically valid prevailing wage rate each year in each State in which one is needed, ” and consequently, wages “effectively have not increased since 1994” in states without higher mandatory minimum wages).

         Though the 2011 TEGLs have now been superseded by the 2015 Rule, the plaintiffs- HAP, two current H-2A herders, one former H-2A herder who intends to work as an H-2A herder again soon, and the putative class of H-2A herders who worked under certifications pursuant to the 2011 TEGLs-seek a declaratory judgment that the prevailing wage determinations under the 2011 TEGLs were invalid because DOL did not apply the methodology outlined in those administrative rules, and an order directing DOL “to promptly issue a wage determination that accords with the regulatory framework of the 2011 [TEGLs].” SAC ¶ 127. The plaintiffs have made clear here, and in their prior motion for injunctive relief, that they seek this declaratory judgment for the purpose of “pursu[ing] the separate back-pay claims . . . against their employers-now parties to this case.” Pls.' Unified Resp. to Defs.' Mots. (“Pls.' Opp'n”) at 1, ECF No. 73.

         As the Court indicated in its preliminary injunction opinion, in light of DOL's own admissions in the NPRM, 80 Fed. Reg. at 20, 307-09, and the government counsel's concession that the 2011 TEGLs “didn't work, ” resulting in stagnating wages since 1994, the question of the legality of the wages determined under the authority of the 2011 TEGLs would not appear to be a difficult one. Hispanic Affairs Project, 141 F.Supp.3d at 68 (quoting Prelim. Injunction Hrg. Tr. at 28:19-25). Nonetheless, as the DOL Defendants point out, the Court may not resolve the merits of plaintiffs' claims about the ...


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