United States District Court, District of Columbia
A. HOWELL Chief Judge
Immigration and Nationality Act authorizes the issuance of
temporary work visas, also known as H-2A visas, to foreign
agricultural laborers. 8 U.S.C. § 1101(a)(15)(H)(ii)(a).
This case concerns the special procedures and conditions
under which American employers bring temporary foreign
laborers into the United States to perform shepherding work.
The plaintiffs, Rodolfo Llacua, a U.S. citizen originally
from Peru, who labored as a shepherd in the United States on
an H-2A visa from 1999 through 2011, and Hispanic Affairs
Project ("HAP"), brought this lawsuit against the
United States Department of Labor ("DOL"); the
Secretary of Labor in his official capacity; DOL's
Assistant Secretary, Employment and Training Administration,
in her official capacity; the United States Department of
Homeland Security ("DHS"); and the Secretary of DHS
in his official capacity (collectively, "the
government"); as well as the Western Range Association
and the Mountain Plains Agricultural Service, which employ
shepherds (collectively, "the association
defendants"). The plaintiffs' claims against the
government arising out of invalid Training and Employment
Guidance Letters ("TEGLs") were previously
dismissed, and the claims for back pay against the
association defendants, predicated on the invalid TEGLs, were
severed and transferred to the District of Colorado. See
generally Order, ECF No. 82; Mem. Op., ECF No.
Counts V, VI, and VII now remain, each of which challenges
aspects of DOL's 2015 Rule, Temporary Agricultural
Employment of H-2A Foreign Workers in the Herding or
Production of Livestock on the Range in the United
States ("Final Rule"), 80 Fed. Reg. 62, 958
(Oct. 16, 2015) (codified at 20 C.F.R. §§
655.200-655.235), which supplanted the 2011 TEGLs. To be
precise, the plaintiffs contend that the 2015 Rule
"allows [H-2A] shepherds ... to: (1) conduct work on a
permanent basis, (2) for a wage that falls to as low as $3
per hour, and (3) in accord with definitions contained in the
Rule for 'range' and the type of work shepherds can
perform that are illegally broad." Pls.' Mot. Summ.
J. at 1, ECF No. 93. Each remaining Count challenges these
same three aspects of the 2015 Rule under a different AP A
subsection. Count V asserts three claims under §
706(2)(A) of the AP A, which prohibits arbitrary and
capricious agency action. Compl. ¶¶ 111-12. Count
VI asserts three claims under § 706(2)(C), which
proscribes agency action in excess of the agency's
statutory authority. Id. ¶¶ 113-14.
Finally, Count VII alleges three claims under §
706(2)(D), which prohibits agency action taken "without
observance of procedure required by law." Id.
before the Court are four motions, which became ripe on May
19, 2017, with the filing of the parties' Joint
Appendix: (1) the plaintiffs, the government
defendants, and the association defendants have each moved
for summary judgment, see generally Pls.' Mot.
Summ. J.; Defs.' Opp'n Pls.' Mot. Summ. J. &
Cross-Mot. Summ. J. ("Gov't's Cross-Mot. Summ.
J."), ECF No. 101; Ass'n Defs.' Cross-Mot. Summ.
J., ECF No. 99, and (2) the government has moved to strike
the exhibits attached to the plaintiffs' summary judgment
motion, citing the long-standing principle that judicial
review of agency action under the AP A must be limited to the
administrative record. See generally Defs.' Mot.
Strike Extra-Record Materials ("Gov't's Mot.
Strike"), ECF No. 100. For the reasons set out below,
the government's Motion to Strike is granted in part and
denied in part; the plaintiffs' Motion for Summary
Judgment is denied in full; and the government's and
intervenors' Cross-Motions for Summary Judgment are
granted in full.
the factual and regulatory background has been set out in
prior opinions in this and related cases. See, e.g.,
Mendoza v. Perez, 754 F.3d 1002, 1007-10 (D.C. Cir.
2014); Hispanic Affairs Project v. Perez, 206
F.Supp.3d 348, 354-57 (D.D.C. 2016); Hispanic Affairs
Project v. Perez, 141 F.Supp.3d 60, 63-66 (D.D.C. 2015).
Thus, only a brief overview of the particular challenges at
issue is necessary here.
H-2A visa program, established by the Immigration and
Nationality Act of 1952, 8 U.S.C. § 1101 et
seq., and amended by the Immigration Reform and Control
Act of 1986, Pub. L. 99-603, sec. 301, 100 Stat. 3359 (1986),
allows employers to hire "an 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 ... of a temporary or
seasonal nature." 8 U.S.C. § 1101(a)(15)(H)(ii)(a).
As the government explains, "the admission of foreign
workers pursuant to [the H-2A visa program] involves a
multi-step process before three [f]ederal agencies."
Defs.' Mem. Supp. Opp'n Pls.' Mot. Summ. J. &
Cross-Mot. Summ. J. ("Gov't's Mem. Supp.
Cross-Mot. Summ. J.") at 2, ECF No. 101-1. An employer
seeking to hire H-2A workers must first obtain a
"certification from [DOL] that (1) there are not
sufficient qualified and willing U.S. workers to fill open
positions and (2) hiring foreign workers will not adversely
affect the wages and working conditions of similarly employed
U.S. workers." Mendoza, 754 F.3d at 1007
(citing 8 U.S.C. § 1188(a)(1)). After securing the DOL
certification, the employer must file an 1-129 Petition to
Import a Nonimmigrant Worker ("1-129 Petition")
with the United States Citizenship and Immigration Services
("USCIS"), a component of DHS. See 8 U.S.C. §
1184(c)(1); see also United States v. Ramirez, 420
F.3d 134, 137 (2d Cir. 2005) (explaining that after engaging
with DOL, an employer "then files with [DHS] a Form
1-129 Petition"). Upon approval of an 1-129 Petition, the
foreign worker identified in that petition may apply for and
obtain a visa at a Department of State consulate overseas.
See Id. §§ 1184(c), 1225, 1182(a),
The Mendoza Litigation
H-2A visa program applies to a wide range of foreign
agricultural workers hired for temporary work in the United
States. Recognizing "[t]he unique occupational
characteristics" of herders, who "spend extended
periods of time with grazing herds of sheep in isolated
mountainous terrain [and] being on call to protect flocks
from predators 24 hours a day, 7 days a week, " DOL has
long prescribed special rules for this class of agricultural
workers. Training and Employment Guidance Letter No.
32-10: Special Procedures: Labor Certification Process for
Employers Engaged in Sheepherding and Goatherding Occupations
Under the H-2A Program ("2011 TEGL"), 76 Fed.
Reg. 47, 256, 47, 256-57 (Aug. 4, 2011); see also
Temporary Agricultural Employment of H-2 A Foreign Workers in
the Herding or Production of Livestock on the Range in the
United States ("NPRM"), 80 Fed. Reg. 20, 300,
20, 301 (proposed Apr. 15, 2015) (20 C.F.R. pt. 655). For
many years, the special rules governing H-2A visas for
herders were set out in Field Memoranda and Training and
Guidance Employment Letters ("TEGLs"). See 2011
TEGL, 76 Fed. Reg. at 47, 257; NPRM, 80 Fed. Reg. at 20, 300,
20, 302. In a 2014 case challenging the procedural validity
of the 2011 TEGLs, however, the D.C. Circuit held that
"the Department of Labor violated the Administrative
Procedure Act by promulgating [the TEGLs- one for sheep and
goat herders and the other for open range production of other
types of livestock] without providing public notice and an
opportunity for comment." Mendoza, 754 F.3d at
1025. The D.C. Circuit remanded the case to this Court
"to craft a remedy to the APA violation."
Id. On remand, this Court ordered the government to
publish a Notice of Proposed Rulemaking by March 1, 2014, and
a final rule by November 1, 2015, and set the new rule's
effective date as "30 days after the rule's
publication or December 1, 2015, whichever is earlier."
Mendoza v. Perez, 72 F. Supp. 3d 168, 175
(D.D.C. 2014). The 2011 TEGLs were ordered vacated as of the
effective date of the new rule. Id.
The 2015 Final Rule
accordance with a Court authorized extension, see
Memorandum and Order at 5, Mendoza v. Perez, Civ.
No. 11-1790 (BAH), ECF No. 61, on April 15, 2015, DOL issued
a Notice of Proposed Rulemaking ("NPRM") in the
Federal Register "proposing to amend its regulations
governing certification of the employment of nonimmigrant
workers in temporary or seasonal agricultural employment
under the H-2A program to codify certain procedures for
employers seeking to hire foreign temporary agricultural
workers for job opportunities in sheepherding, goat herding
and production of livestock on the open range." NPRM, 80
Fed. Reg. at 20, 300. After a comment period, DOL published
the challenged Final Rule on October 16, 2015. See
Final Rule, 80 Fed. Reg. at 62, 958.
plaintiffs advance three challenges to the Final Rule. First,
the plaintiffs contend that the Final Rule effectively allows
herders to work on a permanent basis because it does not
restrict "the timing or frequency of renewals."
Pls.' Mem. Supp. Mot. Summ. J. at 6, ECF No. 93. Second,
the plaintiffs assert that the Final Rule prescribes herder
wages "that fall as low as $3 per hour, "
Pls.' Mot. Summ. J. at 1, since the Final Rule, 20 C.F.R
§ 655.211(c)(1), specifies that the minimum wage
applicable to H-2A shepherds, phased in over a two-year
period, will be $7.25 per hour, multiplied by 48 hours per
week, multiplied by 4.333 weeks per month, see Pls.' Mem.
Supp. Mot. Summ. J. at 2, 26-36. Finally, the plaintiffs
argue that the Final Rule "create[s] an illegally
expansive definition of 'range' .. . and has
illegally broadened the scope of shepherd work, which now
includes ever-more ranch-based work." Id. at
37. The plaintiffs maintain that these three aspects of the
Final Rule violate the APA, 5 U.S.C. §§ 706(2)(A)
(proscribing agency action that is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law"), 706(2)(C) (proscribing agency
action that is "in excess of statutory .. .
authority"), and 706(2)(D) (proscribing agency action
that is "without observance of procedure required by
relief, the plaintiffs seek a "declaratory judgment that
DOL and DHS have violated the APA by adhering to the
permanent work-visa, the subminimum wage, and
shepherd-as-ranch-hand policies, " and "ask the
Court to set aside and vacate the portions of the 2015 Rule
that allow for these policies, which will have the effect of
enjoining both DOL and DHS from authorizing H-2A visas to
shepherds." Pls.'Mem. Supp. Mot. Summ. J. at
II. LEGAL STANDARD
cases such as this one, involving cross-motions for summary
judgment, "the district judge sits as an appellate
tribunal. The 'entire case' on review is a question
of law." Am. Bioscience, Inc. v. Thompson, 269
F.3d 1077, 1083 (D.C. Cir. 2001) (collecting cases). Thus,
this Court need not and ought not engage in lengthy fact
finding, since "[g]enerally speaking, district courts
reviewing agency action under the APA's arbitrary and
capricious standard do not resolve factual issues, but
operate instead as appellate courts resolving legal
questions." James Madison Ltd. by Hecht v.
Ludwig, 82F.3d 1085, 1096 (D.C. Cir. 1996); see also
Lacson v. U.S. Dep 't of Homeland S'ec, 726 F.3d
170, 171 (D.C. Cir. 2013) (noting, in an APA case, that
"determining the facts is generally the agency's
responsibility, not ours"). As a general rule, judicial
review is limited to the administrative record, since
"[i]t is black-letter administrative law that in an
[Administrative Procedure Act] case, a reviewing court should
have before it neither more nor less information than did the
agency when it made its decision." CTS Corp. v.
EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal
citations and quotation marks omitted; alteration in
original); see also 5 U.S.C. § 706 ("[T]he
Court shall review the whole record or those parts of it
cited by a party"); Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 743 (1985) (noting, when applying
the arbitrary and capricious standard under the APA, that
'"[t]he focal point for judicial review should be
the administrative record already in existence
....'" (quoting Camp v. Pitts, 411 U.S.
138, 142 (1973))).
the APA, a reviewing court must set aside a challenged agency
action that is found to be, inter alia,
"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, " 5 U.S.C. §
706(2)(A); "in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right,
" id. § 706(2)(C); or "without
observance of procedure required by law, " id.
§ 706(2)(D); Otis Elevator Co. v. Sec'y of
Labor, 762 F.3d 116, 120-21 (D.C. Cir. 2014) (citing
Fabi Constr. Co. v. Sec'y of Labor, 370 F.3d 29,
33 (D.C. Cir. 2004)). The arbitrary or capricious provision,
under subsection 706(2)(A), "is a catchall, picking up
administrative misconduct not covered by the other more
specific paragraphs" of the APA. Ass 'n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed.
Reserve Sys., 745 F.2d 677, 683 (D.C. Cir. 1984)
arbitrary and capricious muster, "the agency must
examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made." Motor
Vehicle Mfrs. Ass 'n, Inc. v. State Farm Mut. Auto. Ins.
Co. ("State Farm"), 463 U.S. 29, 43 (1983)
(internal quotation marks omitted). As the D.C. Circuit has
explained, a party challenging agency action as arbitrary and
capricious "must show the agency action is not a product
of reasoned decisionmaking." Van Hollen, Jr. v.
FEC, 811 F.3d 486, 495 (D.C. Cir. 2016). "This is
'a heavy burden, ' since State Farm entails
a 'very deferential scope of review' that forbids a
court from 'substitut[ing] its judgment for that of the
agency.'" Id. (citing Transmission
Access Policy Study Grp. v. FERC, 225 F.3d 667, 714
(D.C. Cir. 2000)); see also Judulang v. Holder, 565
U.S. 42, 52-53 (2011) (same); Fogo De Chao (Holdings)
Inc. v. U.S. Dep't of Homeland Sec., 169 F.3d 1127,
1135 (D.C. Cir. 2014) (same); Agape Church, Inc. v.
FCC, 738 F.3d 397, 408 (D.C. Cir. 2013) (same). When
"an agency has acted in an area in which it has
'special expertise, ' the court must be particularly
deferential to [the agency's] determinations."
Sara Lee Corp. v. Am. Bakers Ass 'n Ret. Plan,
512 F.Supp.2d 32, 37 (D.D.C. 2007) (quoting Bldg. &
Constr. Trades Dep't AFL-CIO v. Brock, 838 F.2d
1258, 1266 (D.C. Cir. 1988)). That said, "courts retain
a role, and an important one, in ensuring that agencies have
engaged in reasoned decisionmaking." Judulang,
565 U.S. at 53. Simply put, "the agency must explain why
it decided to act as it did." Butte Cty. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010).
D.C. Circuit has summarized the circumstances under which an
agency action would normally be "arbitrary and
capricious" to include "if the agency has relied on
factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise." Pharm.
Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 209
(D.C. Cir. 2015). Thus, when an agency '"fail[s] to
provide a reasoned explanation, or where the record belies
the agency's conclusion, [the court] must undo its
action.'" Cty. of Los Angeles v. Shalala,
192 F.3d 1005, 1021 (D.C. Cir. 1999) (quoting BellSouth
Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999));
see Select Specialty Hosp.-Bloomington, Inc. v.
Burwell, 757 F.3d 308, 312 (D.C. Cir. 2014) (noting that
when '"an agency's failure to state its
reasoning or to adopt an intelligible decisional standard is
[ ] glaring [ ] we can declare with confidence that the
agency action was arbitrary and capricious'"
(quoting Checkosky v. SEC, 23 F.3d 452, 463 (D.C.
Cir. 1994))); Amerijet Int'l, Inc. v. Pistole,
753 F.3d 1343, 1350 (D.C. Cir. 2014) ("[A] fundamental
requirement of administrative law is that an agency set forth
its reasons for decision; an agency's failure to do so
constitutes arbitrary and capricious agency action."
(internal quotation marks and citation omitted)).
"[C]onclusory statements will not do; an agency's
statement must be one of reasoning.'" Amerijet
lnt'l Inc., 753 F.3dat 1350 (internal quotation
marks omitted; emphasis in original).
parties' cross-motions for summary judgment are addressed
after considering the government's motion to strike
exhibits appended to the plaintiffs' motion.
The Government's Motion to Strike
plaintiffs attached eighteen exhibits to their motion for
summary judgment, see generally Pls.' Mot. Summ.
J., Exs. A-R, ECF Nos. 93-1 to 93-18, sixteen of which were
not submitted to, or otherwise considered by, DOL during its
notice-and-comment rulemaking and are consequently not part
of the administrative record. The government seeks to strike
those sixteen exhibits,  arguing that "judicial review of
agency action, except in rare circumstances . .., is limited
to the administrative record." Gov't's Mot.
Strike at 3; see also Id. at 6 (arguing that
"the problem of which [the plaintiffs] complain is .. .
one of their own making" because they did not present
these exhibits to DOL during the rulemaking process). The
government points out that the plaintiffs "file[d]
extra-record materials contemporaneously with their summary
judgment brief, " without first seeking leave of court.
Id. at 4. This, in turn, "places the burden on
[the government] to move to strike, . . . [and] leaves some
uncertainty about the documents and arguments to which [the
government] must respond." Id. at 4. The
government's points are well taken, since, as another
Judge on this Court has observed, "[a]sking the Court
for permission to consider additional materials on the very
day on which the dispositive motions are filed is simply too
late. Doing so meant that Plaintiffs precluded Defendant from
effectively objecting to the inclusion of these materials
before Plaintiffs relied on them in their briefing."
Banner Health v. Burwell, 126 F.Supp.3d 28, 60
(D.D.C. 2015). Due to this awkward procedural posture, the
government requests an opportunity to file supplemental
briefing in the event that any of the plaintiffs'
exhibits are accepted for review. See
Gov't's Mot. Strike at 7. The plaintiffs, on the
other hand, maintain that "[their] submission of these
[exhibits] should not delay a decision in this case."
Pls.' Opp'n Mot. Strike at 10, ECF No. 108. Thus, a
determination as to whether the exhibits attached to the
plaintiffs' motion for summary judgment is necessary.
See CTS Corp., 159 F.3d at 64 (observing that the
plaintiff "did not even move to supplement the
record" and instead "simply attached. .. new
evidence to its brief but nevertheless addressing whether
supplementation would be appropriate).
Standards Governing Supplementation and Extra-Record
the APA, "the court shall review the whole record or
those parts of it cited by a party." 5 U.S.C. §
706; accord, e.g., Hill Dermaceuticals, Inc. v. FDA,
709 F.3d 44, 47 (D.C. Cir. 2013) ("[I]t is black-letter
administrative law that in an AP A case, a reviewing court
'should have before it neither more nor less information
than did the agency when it made its decision.'"
(quoting Walter O. Boswell Mem'l Hosp. v.
Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). "The
administrative record includes all materials compiled by the
agency . .. that were before the agency at the time the
decision was made." James Madison Ltd. by
Hecht, 82 F.3d at 1095 (internal quotation marks and
citations omitted). Otherwise, the reviewing court would
consider de novo material not included in the agency
record and "reach its own conclusions based on such an
inquiry, " Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985), which is inconsistent
with AP A standards of review, under which "the focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in
the reviewing court, " Camp, 411 U.S. at 142.
of the administrative record is appropriate only in
exceptional or "unusual" circumstances. City of
Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)
("[W]e do not allow parties to supplement the record
'unless they can demonstrate unusual circumstances
justifying a departure from this general rule.'"
(quoting Tex. Rural Legal Aid v. Legal Servs. Corp.,
940 F.2d 685, 698 (D.C. Cir. 1991))). The D.C. Circuit has
recognized three narrow instances in which supplementation of
an administrative record may be appropriate before reaching
the merits of an AP A challenge to agency action: "(1)
if the agency 'deliberately or negligently excluded
documents that may have been adverse to its decision, '
(2) if background information was needed 'to determine
whether the agency considered all the relevant factors, '
or (3) if the 'agency failed to explain administrative
action so as to frustrate judicial review.'"
City of Dania Beach, 628 F.3d at 590 (quoting
Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002
(D.C. Cir. 2008)). Underlying these exceptions, however, is
the "strong presumption" that an agency has
properly compiled the entire record of materials that it
considered, either directly or indirectly, in making its
decision. Dist. Hosp. Partners, L.P. v. Sebelius,
971 F.Supp.2d 15, 20 (D.D.C. 2013) (quoting Pac. Shores
Subdiv., Cal. Water Dist. v. U.S. Army Corps of
Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006)),
affirmed sub nom. Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46 (D.C. Cir. 2015); accord United
States v. Chem. Found., Inc., 212 U.S. 1, 14-15 (1926)
("In the absence of clear evidence to the contrary,
courts presume that [public officers] have properly
discharged their official duties."); Bar MK Ranches
v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)
("[T]he designation of the Administrative Record, like
any established administrative procedure, is entitled to a
presumption of administrative regularity.").
addition to supplementing administrative records with
material that an agency considered but failed to include,
courts have in certain circumstances departed from the
general rule of limiting judicial review to the
administrative record and permitted the introduction of
extra-record information." Safari Club Int'l v.
Jewell, 111 F.Supp.3d 1, 5 (D.D.C. 2015). In a case
involving a "serious question" about "the
procedural validity" of the challenged agency action,
the D.C. Circuit identified eight circumstances in which
consideration of extra-record evidence may be appropriate.
Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.
1989). More recently, however, the D.C. Circuit
has cautioned that the exceptions announced in Esch
are "narrow" and that, "at most
[Esch] may be invoked to challenge gross procedural
deficiencies- such as where the administrative record itself
is so deficient as to preclude effective review."
Hill Dermaceuticals, Inc., 709 F.3d at 47 (citing
Theodore Roosevelt Conservation P 'ship v.
Salazar, 616 F.3d497, 514 (D.C. Cir. 2010) ("The
APA limits judicial review to the administrative record
except when there has been a strong showing of bad faith or
improper behavior or when the record is so bare that it
prevents effective judicial review.") (internal
quotations omitted))); see also Axiom Res. Mgmt. v.
United States, 564 F.3d 1374, 1380-81 (Fed. Cir. 2009)
(rejecting Esch because (1) the Esch
exceptions originated in a law review article that predated
the Supreme Court's decision in Florida Power &
Light Company, (2) the Esch exceptions
"are so broadly-worded as to risk being incompatible
with the limited nature of arbitrary and capricious review,
particularly if construed to allow the introduction of new
evidence or theories not presented to the deciding agency,
" and (3) "Esch's vitality even within
the D.C. Circuit is questionable in light of more recent
opinions by that court which demonstrate a more restrictive
approach to extra-record evidence" (internal quotation
marks and citations omitted)).
the plaintiffs do not take issue with the general proposition
that a court reviewing an agency's action under §
706 of the APA is limited to the administrative record.
Instead, the plaintiffs respond that "most of the
materials in question are offered not to supplement the
record but rather for a different, permissible
purpose-namely: (1) to establish standing [Exhibits B, C, J,
K, and L], (2) as records subject to judicial notice offered
for demonstrative purposes [Exhibits G, H, Q, and R], (3) as
quasi-judicial authorities binding on DHS [Exhibits M and N],
and (4) as a streamlined compendium of materials actually in
the administrative record [Exhibit E]." Pls.'
Opp'n Mot. Strike at 1. The plaintiffs concede that four
exhibits were submitted as extra-record material-Exhibits D,
F, I, and P-but that supplementation is "permissible ..
. because of the [government's failure to consider issues
that it was duty-bound to consider in the 2015 Rule."
Id. Each group of exhibits and the associated
justification asserted by the plaintiffs is addressed in
Exhibits B, C, J, K, and L
B, C, J, K, and L are offered to help establish the
plaintiffs' standing. Those exhibits are, respectively,
declarations by (1) Ricardo Perez, the Executive Director of
HAP; (2) former plaintiff John Doe; (3) plaintiff Rodolfo
Llacua; (4) Magdaleno Diaz, a member of HAP; and (5) Fidel
Medina, also a HAP member. See generally Pls.'
Mot. Summ. J., Ex. B, Decl. of Ricardo Perez, ECF No. 93-2;
id., Ex. C, Decl. of John Doe, ECF No. 93-3;
id., Ex. J, Decl. of Rodolfo Llacua, ECF No. 93-10;
id, Ex. K, Decl. of Magdaleno Diaz, ECF No. 93-11;
id., Ex. L, Decl. of Fidel Medina, ECF No. 93-12.
The plaintiffs are correct to point out that they may
introduce extra-record evidence to establish their standing,
and that the Court may rely on that evidence in evaluating
whether standing exists. See Sierra Club v. EPA, 292
F.3d 895, 899 (D.C. Cir. 2002) (citing Amfac Resorts, LLC
v. Dep 't of Interior, 282 F.3d 818, 830 (D.C. Cir.
2002) ("[The petitioners] are not confined to the
administrative record. .. . Beyond the pleading stage, they
must support their claim of injury with evidence."));
accord, e.g., Mass. v. EPA, 415 F.3d 50, 55 (D.C.
Cir. 2005) ("[T]o establish standing, a petitioner
challenging agency action has the same burden of production
as a plaintiff moving for summary judgment in the district
court: it must support each element of its claim to standing
by affidavit or other evidence." (internal quotation
marks omitted)), rev 'd on other grounds, 549
U.S. 497 (2007); Chesapeake Climate Action Network v.
Export-Import Bank of the U.S., 78 F. Supp. 3d
208, 217 (D.D.C. 2015) ("Although judicial review of
agency action is typically confined to the administrative
record, where there is not sufficient evidence of standing in
the record because the question was not before the agency,
plaintiffs may submit extra-record evidence to establish
standing."); Otay Mesa Prop., L.P. v. U.S. Dep't
of Interior, 144 F.Supp.3d 35, 57 (D.D.C. 2015)
("[E]ven if [the plaintiff's] standing in this
matter was not evident from the administrative record, [the
plaintiff] has clearly cured any evidence-related deficiency
by submitting a declaration ....").
however, the topics addressed in the relevant declarations
here exceed the scope of any standing inquiry, see,
e.g., Perez Decl. ¶9 (explaining that HAP members
have communicated to HAP that they "are generally paid
the monthly salary of $1206.33 per month and that they work
on a permanent basis in this country pursuant to continually
renewed H-2A contracts that last around three years"),
and the plaintiffs' summary judgment brief cites those
declarations principally for purposes other than establishing
standing, see, e.g., Pls.' Mem. Supp. Mot. Summ.
J. at 5 n.4, 6 n.5, 23, 40. The plaintiffs may not smuggle in
extra-record evidence relevant to the merits of this AP A
action by contending that the evidence pertains to standing,
particularly where standing was previously addressed in
detail at the motion to dismiss stage and is no longer at
issue. Accordingly, the Court will disregard
Exhibits B, C, J, K, and L, as well as the arguments
predicated on those exhibits.
Exhibits G, H, Q, and R
plaintiffs next argue that the Court may take judicial notice
of Exhibits G, H, Q, and R, which are "labor
certifications accessible through the Department of
Labor's website." Pls.' Opp'n Mot. Strike at
3. More precisely, Exhibit G is an H-2A application for DOL
certification for harvesters, and Exhibits H, Q, and R are
similar applications for shepherds. The plaintiffs cite
Exhibits G and H in their summary judgment brief to argue
that "[t]he lack of a temporary or seasonal need for
H-2A shepherds stands in striking contrast to typical H-2A
workers." Pls.' Mem. Supp. Mot. Summ. J. at 8. The
plaintiffs use Exhibits Q and R (H-2A applications for
shepherds in Hawaii and on the border of Alabama and Florida,
respectively) to contend that "the broader new
definitions of 'range' and 'shepherd' now
employed by DOL allow for a race to the bottom for all
workers that could be classified as 'shepherds' and
be paid the H-2A shepherd minimum of $3 per hour."
Id. at 35.
plaintiffs' position that the Court may take judicial
notice of documents on an agency's website does not find
support in the caselaw. To the contrary, to take judicial
notice in a § 706 APA case, the materials must still
come within one of the judicially delineated exceptions to
the rule against supplementation and consideration of
extra-record documents. See Riffin v. Surface Transp.
Bd., Civ. No. 16-1147, 2016 WL 6915552, *1 (D.C. Cir.
Oct. 6, 2016) (unpublished) (summarily rejecting a
plaintiff's effort to supplement the administrative
record via judicial notice, with an application filed with
the agency, explaining that none of the three exceptions to
the rule against supplementation obtained); Banner
Health, 126 F.Supp.3d at 61 ("Insofar as Plaintiffs
seek to base their challenge upon these extra-record
materials, even those available to the public of which the
Court could take judicial notice, the Court concludes that it
is necessary to apply the standard for considering
extra-record evidence."); Dist. Hosp. Partners, L.P.
v. Sebelius, 971 F.Supp.2d 15, 32 n.14 (D.D.C. 2013)
("[T]aking judicial notice is typically an inadequate
mechanism for a court to consider extra-record evidence when
reviewing an agency action. . .. [A] court may only consider
an adjudicative fact subject to judicial notice that is
not part of the administrative record if it
qualifies for supplementation as extra-record evidence under
Esch." (emphasis in original)), aff'd
sub nom. Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d
46 (D.C. Cir. 2015); Silver State Land, LLC v.
Beaudreau, 59 F.Supp.3d 158, 172 (D.D.C. 2014)
(same). The plaintiffs here make no effort to
argue that evaluation of Exhibits G, H, Q, and R is proper
under the narrow exceptions to the general rule forbidding
supplementation of the administrative record or extra-record
review of materials. Accordingly, the Court will not take
judicial notice of those exhibits and will not consider them
in evaluating the plaintiffs' motion for summary
M and N
plaintiffs argue that Exhibits M and N may properly be
considered as "quasi-judicial authorities" because
they are memoranda prepared by the Office of Legal Counsel
("OLC") within the Department of Justice. Pls.'
Opp'n Mot. Strike at l. Exhibit M is an OLC memorandum
entitled "Meaning of 'Temporary' Work Under 8
U.S.C. § 1101(a)(15)(H)(ii)(b) [i.e., the H-2B
visa provision" and was prepared in 2008 for the
acting general counsel of DHS. Pls.' Mot. Summ. J., Ex. M
at 1, ECF No. 93-13. This 2008 OLC memorandum discussed
USCIS's proposed rule that "employment is of a
temporary nature" for purposes of H-2B visas "when
the employer needs a worker for a limited period of time,
" generally one year or less, but not to exceed three
years, and concluded the proposed rule is "based on a
permissible reading of the statute." Id. at
1-2. Exhibit N is an OLC memorandum entitled "Temporary
Workers Under § 301 of the Immigration Reform and
Control Act, " which was prepared over 20 years earlier
than Exhibit M, in 1987, for the Commissioner of the
Immigration and Naturalization Service. Pls.' Mot. Summ.
J., Ex. N at 1, ECF No. 93-14. This 1987 OLC memorandum
concluded that "temporary work refers to any job where
the employer's need for the employee is temporary,
regardless of whether the underlying job can be described as
permanent or temporary, " id., and that
"the basic rule for H2 petitions is that a
'temporary' job means one for a year or less, "
id. at 3. The plaintiffs argue that the two OLC
memoranda were pertinent to the DOL's rulemaking in this
case and maintain that "it is unclear how the OLC
opinions to DHS are not the equivalent of judicial authority
from this circuit and should not be accorded precedential
weight from DHS (and DOJ)." Pls.' Opp'n Mot.
Strike at4.Essentially, the plaintiffs seek to
piggyback on the legal reasoning set out in the OLC
memoranda, and would prefer to cite the memoranda as
authority rather than claim the legal analysis as their own.
See Pls.' Opp'n Mot. Strike at 4
("Plaintiffs would have been happy to have copied and
pasted without attribution the same arguments on
'temporary' into the MSJ, but giving OLC the
attribution and paraphrasing good arguments that Defendants
are desperate to ignore seemed the more appropriate
government argues that the Court should not consider the two
OLC memoranda because neither was prepared for DOL, and one
"discusses 'temporary' for purposes of the H-2B
nonimmigrant classification for n on agricultural labor or
services, not the H-2A nonimmigrant classification for
agricultural work at issue in this case."
Gov't's Reply Supp. Mot. Strike at 9. While the
government's differentiation between the OLC memoranda
and the 2015 rulemaking are correct, these distinctions go to
the weight or force of the memoranda rather than whether they
should be considered at all. The plaintiffs are correct to
point out that such memoranda are akin to legal authority for
an agency engaging in rulemaking on a related subject and
therefore may now be considered by the Court, even if the
agency elected not to consider such materials. See
Carlton v. Babbitt, 26 F.Supp.2d 102, 107 (D.D.C 1998)
(considering documents not previously considered by the
agency "[b]ecause all of these documents were publicly
available at the time the [agency] compiled its . ..
statistics, and all but two were official records from court
proceedings . .. ."). Indeed, the agency's
non-consideration of the OLC memoranda-whether deliberate or
inadvertent-is all the more reason to consider them in
reviewing the agency's action. A contrary result would
permit agencies to toss aside OLC memoranda that contain
legal conclusions contrary to the agency's preferred
policy choices. See Arthur H. Garrison, The
Opinions by the Attorney General and the Office of Legal
Counsel: How and Why They Are Significant, 16 Alb. L.
Rev. 217, 238 (2013) ("The exclusive authority held by
the OLC to determine the interpretation of the law for the
executive branch is based on the authority historically and
statutorily bestowed upon the Attorney General-'because
the Attorney General's opinions are treated as final and
conclusive they necessarily become the executive branch
interpretation of the law.'" (quoting Randolph D.
Moss, Executive Branch Legal Interpretation: A
Perspective from the Office of Legal Counsel, 52 Admin.
L. Rev. 1303, 1321 (2000)). Accordingly, it would be
appropriate for the Court to account for Exhibits M and N in
addressing the pending motions for summary
judgment. As explained below, however, the Court
ultimately does not reach the merits of the plaintiffs'
argument that the 2015 Rule enables H-2A shepherds to work in
non-temporary positions, and, thus, Exhibits M and N have no
practical effect in this case.
plaintiffs contend that Exhibit E is properly before the
Court because it is "mainly a compilation of authorities
from the administrative record." Pls.' Opp'n
Mot. Strike at 4. Exhibit E is a 39-page document that begins
with a 3-page cover memorandum prepared by the
plaintiffs' counsel entitled "Additional
Authorities, " which provides an overview of the
materials that follow and explains how they relate to the
arguments advanced in the plaintiffs' motion for summary
judgment. See Pls.' Mot. Summ. J., Ex. E at 2-4,
ECF No. 93-5. The cover memorandum states that the balance of
Exhibit E "provide[s] additional authorities mainly from
a selection of the approximately five-hundred comments
submitted as part of the administrative record" during
the rulemaking underlying this case. Id. at 2. The
government does not take issue with judicial consideration of
the vast majority of the material comprising Exhibit E but
instead notes that "the memorandum and two newspaper
articles that it cites" must be ignored. Gov't's
Reply Supp. Mot. Strike at 10 (emphasizing that the
plaintiffs "cannot rely on evidence or argument that was
not before DOL during the rulemaking process"). The
Court agrees and will not consider the cover memorandum or
the two referenced news articles as evidence but will
otherwise consult the materials in Exhibit E, which even the
government acknowledges are part of the extant administrative
Exhibits D, F, I, and P
the government has moved to strike Exhibits D, F, I, and P.
Exhibit D is a declaration by Ignacio Alvarado, a HAP member,
who worked as a shepherd for 15 years, both in Chile and in
Colorado. See Pls.' Mot. Summ. J., Ex. D, Decl.
of Ignacio Alvarado ("Alvarado Decl.")¶¶
1-2, ECF No. 93-4; see also Pls.' Opp'n Mot.
Strike at 8 (describing Mr. Alvarado as "an expert on
H-2A shepherds"). Mr. Alvarado's declaration
addresses the different types of work that shepherds perform
during discrete herding seasons and states that "[t]he
work of an H-2A shepherd lasts through these different
seasons and normally for many years, " and that
"the custom with the shepherds ... is that they work for
three-year contracts, return home for a brief period of time,
and begin another three-year contract." Alvarado Decl.
¶ 35. Exhibit F is a notice published on February 12,
2014, on the intervenor-defendant WRA's website. See
Pls.' Mot. Summ. J., Ex. F, WRA Membership Notice at 1,
ECF No. 93-6. The notice states that members "should be
aware that one of our assurances to the Department of Labor
is that travel for each herder, to and from their home
country, is provided" and that WRA "purchases these
tickets and prorates the cost thereof over 36 months (the
maximum time a man could stay)." Id. at 1. The
plaintiffs cite this notice as evidencing a quasi-permanent
work policy. Exhibit I reflects DOL wage data for lambers,
which the plaintiffs use to argue that "the new
definition of 'shepherd' completely envelopes any
separate work performed by a 'lamber.'"
Pls.' Opp'n Mot. Strike at 8. Finally, Exhibit Pls a
declaration by the plaintiffs' attorney, which analyzes a
2014 "data set providing information across a number of
fields about each H-2A Visa Certification, " which he
downloaded from DOL's website. Pls.' Mot. Summ. J.,
Ex. P, Decl. of Dermot Lynch ¶¶ 2-3, ECF No. 93-16.
plaintiffs contend that Exhibits D, F, I, and P are offered
to "supplement or clarify the record" because DOL
and DHS ignored relevant evidence in crafting the Final Rule
and in "rubber stamping visa petitions, "
respectively. Pls.' Opp'n Mot. Strike at 5
("[T]he [g]overnment, including in its rulemaking (and
in this litigation), takes a stance on some of the problems
with the 2015 Rule and in rubber stamping visa petitions that
amounts to 'see no evil, hear no evil, speak no evil'
about the reality of H-2A shepherd work."); see also
Id. at 6 ("[I]t is permissible to supplement the
record on review of an agency action, 'when the agency
failed to consider factors which are relevant to its final
decision.'" (quoting Esch, 876 F.2d at
991)). Although the plaintiffs use the word "supplement,
" they seem to argue in substance that the exhibits are
properly before the Court as extra-record evidence because
the agencies should have, but did not, consider these
documents. See Safari Club Int'l, 111 F.Supp.3d
at 4 ("Supplementing the administrative record in an APA
case means adding material to the volume of documents the
agency considered, while admitting extra-record evidence
means adding material outside of or in addition to the
administrative record that was not necessarily considered by
the agency."); see also Silver State Land, LLC,
59 F.Supp.3d at 165, 170 (distinguishing between
"supplementation of the administrative record" and
"extra-record review"). As such, the plaintiffs
must make "a strong showing of bad faith or improper
behavior" or show that "the record is so bare that
it prevents effective judicial review." Theodore
Roosevelt Conservation P'ship, 616 F.3d at 514.
respect to Exhibit D, the declaration by Mr. Alvarado, and
Exhibit F, the notice issued on WRA's website, there is
no basis to conclude that the agency deliberately ignored
these documents in engaging in rulemaking-indeed, Mr.
Alvarado's declaration was prepared over one year
after the rulemaking was completed as part of this
litigation. Nor do Exhibits D and F add to the extant record
in any meaningful way, since record evidence, cited by the
plaintiffs, indicates that H-2A shepherds tend to stay as
long as an H-2A visa allows, for more than one season, and
return many times working for the same rancher for up to
twenty years. See Pls.' Mem. Supp. Mot. Summ. J.
at 7 n.5 (citing Exhibits D and F, as well as the Federal
Register, as indicating that the same shepherds are
reemployed over time). Accordingly, Exhibits D and F will not
be considered. See Safari Club Int'l, 111
F.Supp.3d at 7 ("Plaintiffs have not met the
requirements for admitting the email as extra-record evidence
[because] [t]hey do not allege bad faith nor improper
behavior by the agency, and the Court finds that this email
is not necessary to make judicial review effective in this
case."). Regarding Exhibit I, which discloses lamber
wages, the plaintiffs present no reason to believe that this
document was overlooked in bad faith by the agency. Further,
as with Exhibits D and F, Exhibit I does not meaningfully add
to the plaintiffs' argument and evidence that DOL's
wage determination for H-2A shepherds is unlawful. See
Pls.' Mot. Summ. J. at 9-11. Thus, Exhibit I will not be
P is a declaration by the plaintiffs' attorney, Mr.
Lynch, which analyzes data culled from employers' Form
ETA-9142A filings, which H-2A employers submit to DOL to
obtain a certification allowing them to hire H-2A workers.
Lynch Decl. ¶ 2; Final Rule, 80 Fed. Reg. at 62, 974.
This is the same data set relied on by attorney and commenter
Edward Tuddenham to conclude that herders work, on average,
48 hours per week. See Oct. 30, 2014 Letter from
Edward Tuddenham to DOL Acting Deputy Associate Solicitor, AR
at 264-68. DOL "relied upon" the data underlying
Mr. Tuddenham's comment "in reasoning that H-2A
shepherds work an average of 48 hours per week." Lynch
Decl. ¶ 2; see also Final Rule, 80 Fed. Reg. at
62, 995-96 (citing data submitted by employers in "Form
ETA-9142A filings" as justifying the 48-hour workweek).
In his declaration, Mr. Lynch concludes that
defendant-intervenor WRA "always says shepherds work 40
hours a week" in its Form ETA-9142A filings and MP AS
"always says that H-2A shepherds work 60 hours a
week" in its filings. Lynch Decl. ¶ 8. Particularly
because the agency did not set out the data set Mr. Tuddenham
relied upon, Mr. Lynch's declaration is helpful to
understanding whether reliance on that data set-as opposed to
other sources, as urged by some commenters during the
rulemaking process-was appropriate. Cf. Izaak Walton
League of Am. v. Marsh, 655 F.2d 346, 368 (D.C. Cir.
1981) ("Appellants are clearly correct in suggesting
that the administrative record must disclose the studies and
data used in compiling environmental impact
statements."). As such, Mr. Lynch's declaration-and
the data set it cites-is properly before the Court. The
declaration helps effectuate judicial review in pointing out
potential flaws in the data relied upon by the agency, at
least indirectly, in setting a 48-hour work week. Cf.
Western Watersheds Project v. U.S. Forest Serv., Civ.
No. 05-189, 2006 WL 292010 (BLW), *4 (D. Idaho Feb. 7, 2006)
(unpublished) (relying on an extra-record declaration
analyzing a data set utilized by the agency where the agency
did not include the data in the certified administrative
record and "d[id] not quarrel" with the analysis
set out in the declaration); Friends of the Earth v.
Hall, 693 F.Supp. 904, 921 (W.D. Wash. 1988)
("[T]he extra-record evidence explains the data and
factors on which the Navy and the Corps relied, and thus can
be relied upon by the court.").
Exhibits A, M, N, O, and P, as well as Exhibit E, except for
the cover memo, attached to the plaintiffs' summary
judgment motion are properly before the Court. All other
exhibits will be disregarded.
The Cross-Motions for Summary Judgment
plaintiffs argue that three aspects of the Final Rule violate
the APA. These three challenges are taken up
The "Permanent Work-Vis ...