United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
case is about the H-2A temporary agricultural labor program,
which permits agricultural employers that face a shortage of
domestic workers to meet their labor needs by hiring foreign
workers on a temporary or seasonal basis (“H-2A
workers”). To ensure that the employment of temporary
foreign workers under this program does not adversely affect
the wages of similarly employed domestic workers, the
Department of Labor (the “Department”) must
publish an annual notice setting forth the next year's
Adverse Effect Wage Rates (AEWRs). AEWRs set a wage floor
that employers participating in the H-2A program must pay to
all agricultural workers.
& Sons Farms, Inc., and the National Council of
Agricultural Employers (NCAE) (collectively,
“Plaintiffs”) have sued the Secretary of Labor
and two Department officials (“Defendants”),
alleging that the Department violated the Administrative
Procedure Act (APA) in two ways. First, Plaintiffs contend
that the Department lacked statutory authority to promulgate
AEWRs without first making a finding on whether the
employment of H-2A workers adversely effected the wages of
domestic agricultural workers. Second, Plaintiffs allege that
the Department acted arbitrarily and capriciously when it
disregarded certain factors, such as differences in
workers' geographic area, occupation, skills, and
experience, in assessing any such adverse effect.
the Court is Plaintiffs' motion for a preliminary
injunction. The parties have agreed to consolidate that
motion with the merits, and to allow the Court to rule on the
merits based on the current briefing and record. Defendants
argue in their opposition that the Court does not have
subject-matter jurisdiction over Plaintiffs' claims. As
explained in more detail below, the Court agrees.
Plaintiffs' claims present challenges to the 2010
regulation that established the methodology for determining
AEWRs. Thus, because they fall outside the statute of
limitations set forth in 5 U.S.C. § 2401(a), and because
Plaintiffs have not shown that a narrow exception to that
statute applies, the Court must dismiss the case for lack of
Statutory and Regulatory Background
H-2A visa program was created by the Immigration and
Nationality Act of 1952 (INA) and amended by the Immigration
Reform and Control Act of 1986. 8 U.S.C. § 1101 et
seq. Under the program, employers seeking to hire H-2A
workers must first receive certification from the Department
that (1) there are insufficient domestic workers available to
perform the needed labor or services and (2) the employment
of the H-2A workers “will not adversely affect the
wages and working conditions of workers in the United States
similarly employed.” 8 U.S.C. § 1188(a)(1). To
meet the second requirement, the Department sets annual
AEWRs-wage floors for workers employed by an H-2A
participating employer. 20 C.F.R. § 655.120. The stated
purpose of the AEWR is “to neutralize any
‘adverse effect' resultant from the influx of
temporary foreign workers.” See Labor
Certification Process for the Temporary Employment of Aliens
in Agriculture and Logging in the United States, 52 Fed. Reg.
20496-01, 20502 (June 1, 1987) (quoting Williams v.
Usery, 531 F.2d 305, 306 (5th Cir. 1976)).
Department last updated the methodology by which it
calculates AEWRs through notice-and-comment rulemaking in
February 2010. See Temporary Agricultural Employment
of H-2A Aliens in the United States; Final Rule, 75 Fed.Reg.
6884 (Feb. 12, 2010) (“2010 Rule”). Under the
2010 Rule, the Department determined that AEWRs are to be set
at the “annual weighted average hourly wage for field
and livestock workers, ” depending on the relevant
state or region, based on the Department of Agriculture's
“quarterly wage survey” (“USDA Average
Wage”). 29 C.F.R. § 655.103(b). In accordance with
§ 655.120(c), the Department publishes annual notices in
the Federal Register setting forth the upcoming year's
AEWRs for each state. The Department published the AEWRs for
2019 through a notice in the Federal Register on December 26,
2018 (“2019 AEWR Notice”). See 83 Fed.
Reg. 66306-01 (Dec. 26, 2018). On January 9, 2019, it went
into effect. Id.
& Sons is a farming operation with about 15, 000 acres in
and around Yerington, Nevada, where it grows onions and leafy
greens. Compl., Ex. 4 ¶ 3. Peri & Sons participates
in the H-2A program to meet its need for agricultural
laborers. Id., Ex 4 ¶ 5. During its growing
season in 2018, Peri & Sons employed 1, 768 H-2A workers.
Id., Ex. 4 ¶ 6. When Peri & Sons filed its
complaint, it employed 240 H-2A workers. Id., Ex. 4
¶ 7. As an H-2A participating employer, Peri & Sons
is subject to the 2019 AEWR Notice, which set the 2019 AEWR
for Nevada at $13.13 per hour. Id., Ex. 4 ¶ 13.
This rate for Nevada represented a 23% increase above the
2018 AEWR of $10.69 per hour. Id., Ex. 4
¶¶ 10, 13. And in compliance with H-2A regulations,
Peri & Sons pays additional expenses for its H-2A
workers, including transportation and subsistence costs, as
well as the cost of housing for the workers. Id.,
Ex. 4 ¶ 12. Peri & Sons estimates that the costs of
housing and transportation for its H-2A workers adds $2.15 in
costs for each hour worked, which, it asserts,
“translates to an effective hourly wage of $15.28 per
hour” for 2019. Id., Ex. 4 ¶¶ 12-13.
By its own estimations, Peri & Sons predicts that the
2019 AEWR will cause its labor costs to increase from
approximately $45 million to $49 million, which will cause it
to experience a net loss of around $3 million, compared to
receiving net profits of $974, 755 in 2018. Pls.' Supp.
PI Br., Ex. 1 ¶ 7.
a national association founded in 1964 that represents the
interests of agricultural employers before Congress and
federal agencies, with an exclusive focus on labor issues.
Compl., Ex. 5 ¶ 3. NCAE's membership comprises
around 85% of all employers in the United States that
participate in the H-2A program. Id., Ex. 5 ¶
4. At the peak of growing season, NCAE's members employ
about 204, 000 H-2A workers. Id., Ex. 5 ¶ 6.
NCAE brings its claims on behalf of its H-2A participating
employers and the H-2A participating employers of its member
associations. Id. Ex. 5 ¶ 9. Those employers,
NCAE contends, face millions of dollars in increased labor
costs because of the 2019 AEWRs, which will threaten the
viability of some of its member farms. Id., Ex. 5
¶ 14. For example, Cedar Farms in Idaho-an NCAE member
participating in the H-2A program-declared that the 2019 AEWR
increase is “catastrophic” to its operations and
threatens the “sustainability and continued
longevity” of the company. Pls.' Supp. PI Br., Ex.
7 ¶ 8. Similarly, Petrocco Farms in Colorado contends
that the 2019 AEWR increase will cause it to “suffer
significant harm” and lead to
“unsustainable” losses that will force it
“to cease operations.” Id., Ex. 3.
Farm Workers (UFW), which joined this action as a
Defendant-Intervenor, is the largest farmworkers' union
in the United States with a membership of over 9, 000 in
2018, including both domestic and H-2A workers. 1st Mot. to
Intv., Romero Decl. ¶¶ 2, 6. UFW is headquartered
in California and represents farmworkers in over 30 states.
Id., Romero Decl. ¶¶ 3, 4. UFW seeks to
protect the rights and interests of farmworkers by advocating
for higher wages and greater workplace safety protections.
Id., Romero Decl. ¶ 5. UFW contends that the
enjoinment of the 2019 AEWRs would harm its members, many of
whom would be paid at lower wage rates and would face
difficulty recovering earned backpay if the 2019 AEWRs were
to be reinstated at a later date. Id., Romero Decl.
individual farmworkers also joined this action as
Defendant-Intervenors. Arnoldo Charles is an experienced
farmworker and U.S. citizen who has worked at farms in Ohio,
Indiana, and Mississippi from 2009 through 2015. 2d Mot. to
Intv., Ex. 1 ¶ 5. When he moved to intervene, Charles
was prepared to accept seasonal agricultural work in Ohio and
Indiana over the course of 2019. Id., Ex. 1 ¶
7. Olegario Lopez is also an experienced farmworker and a
lawful permanent resident of the U.S. who has performed
agricultural work in Illinois, Michigan, Nebraska, and the
southeastern U.S. since 2001. Id., Ex. 2
¶¶ 4, 5. When he moved to intervene, Lopez planned
to perform agricultural work in Illinois and in the
southeastern U.S. in 2019. Id., Ex. 2 ¶¶
5, 10. Michael Cortez is a U.S. citizen residing in
Harlingen, Texas. Id., Ex. 3 ¶¶ 2, 3. He
plans to seek agricultural work in 2019 with an H-2A employer
in Texas. Id., Ex. 3 ¶ 10. All three individual
intervenors assert an interest in preventing the enjoinment
of the 2019 AEWRs because of the higher wages they expect to
be paid under those rates. Id., Ex. 1 ¶ 8;
id., Ex. 2 ¶ 11; id., Ex. 3 ¶ 10.
January 7, 2019, Plaintiffs filed their complaint, as well as
a motion for a temporary restraining order and preliminary
injunction. Plaintiffs bring two counts under the APA. Compl.
¶¶ 39-46. First, Plaintiffs allege that in setting
the 2019 AEWRs, Defendants acted “not in accordance
with law” and “in excess of statutory
jurisdiction, authority, or limitations” by increasing
the rates without finding that the use of H-2A workers had an
“adverse effect” on the wages of U.S. workers.
Id. ¶¶ 39-42 (quoting 5 U.S.C. §
706(2)). Second, Plaintiffs allege that Defendants acted
arbitrarily and capriciously when it did not assess any
potential “adverse effect” without considering
“differences in geographic areas, occupation, skills,
or experience” or the additional costs of H-2A
employment, such as housing and transportation for H-2A
workers. Id. ¶¶ 43-46. Plaintiffs'
motion sought relief in the form of a temporary restraining
order and preliminary injunction that would enjoin Defendants
from (1) implementing the 2019 AEWR Notice; (2) issuing any
further notices without including “a finding of actual
‘adverse effect' or that do not consider geographic
areas, occupation, skills, or experience;” (3) and
enforcing the 2019 AEWRs against any H-2A employer.
Id. ¶ 46; see Pls.' Mot. at 4-5.
January 8, 2019, the Court held a telephonic hearing on
Plaintiffs' motion for a temporary restraining order. The
Court denied that motion because Plaintiffs had not shown
that they faced imminent and irreparable harm between that
time and when Plaintiffs' motion for preliminary
injunction could be resolved. See Docket, Civ. No.
19-34 (January 9, 2019 Order). On January 9 and 15,
respectively, UFW and Michael Cortez, Arnoldo Charles, and
Olegario Lopez filed motions to intervene as Defendants. 1st
Mot. to Intv.; 2d Mot. to Intv. On January 14, Plaintiffs
filed a supplemental memorandum and declarations in ...