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Garcia v. Acosta

United States District Court, District of Columbia

June 24, 2019

MIGUEL GARCIA, et al., Plaintiffs,
v.
R. ALEXANDER ACOSTA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., permits employers to hire temporary foreign workers “to perform agricultural labor or services” in the United States. 8 U.S.C. § 1101(a)(15)(H)(ii)(a). To hire a temporary foreign worker under this program-known at the H-2A visa program-an employer must petition the Secretary of Labor “for a certification that [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 work, 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). As required by the INA, the Secretary of Labor has promulgated implementing regulations to govern the “process by which the Department of Labor” issues such certifications. 20 C.F.R. § 655.103(a); see also id. § 655, subpart B (regulations governing H-2A visa program). These regulations require, among other things, that “employer[s] . . . offer, advertise in [their] recruitment, and pay a wage that is the highest of” four wage measures specified in the regulations. Id. § 655.120(a); see also Id. § 655.122(1)(1). At issue in this case is one of those four measures known as “the prevailing hourly wage.” Id. § 655.120(a).

         Plaintiffs-four agricultural workers and a farmworkers labor union-bring this action against the Secretary of Labor and the Department of Labor (collectively, “the Secretary”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. They allege that the Secretary has a policy and practice of certifying employers to hire H-2A workers at wages lower than the applicable prevailing wages, see, e.g., Dkt. 1 at 15 (Compl. ¶ 57), and they challenge the grant of five specific certifications, see Id. at 14-15 (Compl. ¶¶ 51-53). Plaintiffs contend that the Secretary's policy and practice of granting certifications that fail to comply with the existing regulations constitutes a de facto amendment to the regulations, without observance of the APA's notice and comment procedures, and that this policy and practice and the Secretary's decision to issue the five specific certifications is arbitrary and capricious and contrary to the Department's own regulations.

         The matter is before the Court on Defendants' motion to dismiss for lack of subject-matter jurisdiction, or, in the alternative, to transfer the case to the U.S. District Court for the Northern District of Illinois or to stay the case. Dkt. 9. Defendants argue that the case should be dismissed because Plaintiffs' challenges to the five specific certifications are moot and their policy and practice claims are unripe. Id. at 17-22. If the Court declines to dismiss the action, Defendants request that the Court transfer the case to the Northern District of Illinois-where the Department of Labor's Chicago National Processing Center is located-or, at the very least, stay the case to provide the Secretary with time to initiate a rulemaking to “modernize” the H-2A visa program. Id. at 22-26. For the reasons explained below, the Court will grant in part and deny in part Defendants' motion to dismiss. The Court will grant the motion to dismiss with respect to Plaintiffs' wrongful certification claims and will deny the motion with respect to Defendants' policy and practice claims. The Court will also deny Defendants' motion to transfer or to stay the case.

         I. BACKGROUND

         A. Statutory and Regulatory Background

         Congress created the H-2A visa program to address temporary shortages of agricultural labor in the United States. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). The program, named after the INA provision authorizing its existence, is jointly administered by the Department of Labor and the United States Citizenship and Immigration Services, a component of the Department of Homeland Security. See Mendoza v. Perez, 754 F.3d 1002, 1007 (D.C. Cir. 2014). Before hiring H-2A workers, an employer must obtain a certification from the Secretary of Labor establishing that (1) there is a shortage of U.S. workers who are “able, willing, and qualified” to “perform the labor or services” at issue and that (2) “the employment of [foreign workers] in such labor or services will not adversely affect the wages and working conditions” of similarly situated U.S. workers. 8 U.S.C. § 1188(a)(2); see also 20 C.F.R. § 655.103(a). “Only after obtaining [the Secretary's] certification may the employer petition the United States Citizenship and Immigration Services to classify a specific foreign worker as an H-2A temporary worker.” Mendoza, 754 F.3d at 1007.

         The Secretary has promulgated regulations governing the H-2A visa certification process. Id. at 1008 (citing 20 C.F.R. § 655, subpart B). Those regulations assign the authority to issue temporary foreign labor certifications to the Department of Labor's Office of Foreign Labor Certifications (“OFLC”). See 20 C.F.R. § 655.101 (“The determinations [shall be] made by the OFLC Administrator who, in turn, may delegate this responsibility to designated staff members; e.g., a Certifying Officer (CO).”). To “ensure that the employment of H-2A workers does not ‘adversely affect the wages and working conditions' of domestic workers, ” the regulations specify “minimum wages and working conditions” for jobs under the H-2A visa program. Hispanic Aff. Project v. Perez, 141 F.Supp.3d 60, 64 (D.D.C. 2015) (citing Mendoza, 754 F.3d at 1008)); see also 20 C.F.R. § 655.122. The regulations were last amended in 2016. See, e.g., 20 C.F.R. § 653.501 (effective Oct. 18, 2016).

         At issue in this case is the “Offered Wage Rate” provision of the regulations, which requires employers participating in the H-2A visa program to “offer, advertise in [their] recruitment, and pay” workers the highest of four wages:

[1] the [Adverse Effect Wage Rate] (“AEWR”)], [2] the prevailing hourly wage or piece rate, [3] the agreed-upon collective bargaining wage, or [4] the Federal or State minimum wage, except where a special procedure is approved for an occupation or specific class of agricultural employment.

20 C.F.R. § 655.120(a); see also Id. § 655.161(a) (prohibiting OFLC from certifying an employer who is not in compliance with the Offered Wage Rate provision). Three of the wage measures are not at issue in this case: the “AEWR, ” which is defined as the “annual weighted average hourly wage for field and livestock workers (combined) in the [s]tates or regions” for which it is calculated (as reported by the U.S. Department of Agriculture), id. § 655.103(b), the “agreed-upon collective bargain wage, ” and “[f]ederal or [s]tate minimum wage, ” neither of which is defined.

         This case focuses on the remaining wage measure: “the prevailing hourly wage.” The regulations define “prevailing wage” to mean the “wage established pursuant to 20 C.F.R. [§] 653.501(d)(4).” Id. § 655.103(b). Prior to the 2016 amendments, § 653.501(d)(4) provided that “[n]o local office shall place a job order seeking workers to perform agricultural . . . processing into interstate clearance unless . . . [t]he wages and working conditions offered are not less than the prevailing wages and working conditions among similarly employed agricultural workers in the area of intended employment.” 20 C.F.R. § 653.501(d)(4) (2016). What was once § 653.501(d)(4), however, has now been relocated to § 653.501(c)(2)(i). That provision now asserts, in relevant part, that state workforce agencies (“SWAs”) must ensure that “[t]he wages and working conditions offered are not less than the prevailing wages and working conditions among similarly employed farmworkers in the area of intended employment or the applicable Federal or State minimum wage, whichever is higher.” 20 C.F.R. § 653.501(c)(2)(i) (2019).

         B. Factual Background

         Plaintiffs are four U.S. agricultural workers and an agricultural labor organization. Dkt. 1 at 3 (Compl. ¶ 5). The individual plaintiffs-Miguel Garcia, Alberto Olvera Gomez, Jose Botella Avila, and Gerard Princilus-are lawful permanent residents of Texas, Arizona, and Florida, who travel to “agricultural businesses across the country” to obtain “temporary agricultural employment.” Id. at 4-5 (Compl. ¶¶ 8-12). Each alleges that he would have sought and accepted work from at least one of the five employers whose certifications are at issue if that employer had paid the “prevailing wage, ” instead of the lower wage certified by the Secretary. Id. at 10-13 (Compl. ¶¶ 33, 36, 39, 42, 45). Plaintiff Farm Labor Organizing Committee (“FLOC”) is “a farmworker labor union, with nearly 8, 000 members throughout the eastern half of the United States, ” “[m]any” of whom are “Mexican nationals participating in the H-2A guestworker program.” Id. at 5 (Compl. ¶ 13). FLOC alleges that its members “are being paid a wage lower than that required by the Offered Wage Rate provision” of the H-2A regulations. Id. Together, the individual plaintiffs and FLOC challenge the Secretary's “policy and practice” of disregarding the “prevailing wage” when certifying H-2A employers, and they challenge five specific certifications, which, they say, permitted the employers to “offer[] a wage rate lower than the prevailing wage, ” in violation of the Offered Wage Rate provision. Id. at 3 (Compl. ¶ 4).

         1. Plaintiffs' Policy and Practice Claims

         The complaint asserts five claims under the APA, three of which concern the Secretary's alleged “policy and practice” of disregarding the “prevailing wage” rate when issuing H-2A certifications. Dkt. 1 at 15-17 (Compl. ¶¶ 57-65) (hereinafter the “policy and practice claims”). Plaintiffs allege that the Secretary has adopted “a policy of deferring to surveys conducted by . . . SWAs . . . to determine the prevailing wage” and that, “[w]here an SWA does not conduct a wage survey, or where the SWA issues ‘no finding' as to a prevailing wage rate, ” the Secretary “grants temporary employment certifications without determining the prevailing wage and without applying the prevailing wage element of the Offered Wage Rate provision.” Id. at 8-9 (Compl. ¶¶ 27-28). As a result, in the absence of an SWA's determination of the “prevailing wage, ” the Secretary permits employers to pay workers the highest of three wages: “the legal state or [f]ederal minimum, the agreed-upon collective bargaining wage rate[, ] or the [AEWR].” Id. (Compl. ¶ 29). Plaintiffs allege that, “[p]ursuant to this policy and practice, [the Secretary] has granted hundreds of temporary labor certifications where the offered wage rate is lower than the prevailing wage rate, as calculated by [the Department of Labor's] Bureau of Labor Statistics based on its [Occupational Employment] [S]urvey.” Id. (Compl. ¶ 30).

         Plaintiffs allege (1) that the Secretary's “policy and practice” is “contrary to the Offered Wage Rate provision, ” id. at 15 (Compl. ¶ 57); (2) that the “policy and practice” is “arbitrary and capricious because it reflects a failure to consider an important, relevant, and statutorily-mandated factor, ” id. at 16 (Compl. ¶ 61); and (3) that the “policy and practice . . . constitutes a de facto rule” allowing the Secretary “to grant temporary employment certifications without regard to the prevailing wage, ” id. at 16-17 (Compl. ¶¶ 62-63), which the agency adopted without “comply[ing] with the rulemaking requirements of the APA, ” id. at 17 (Compl. ¶ 64). By way of relief, Plaintiffs ask the Court to declare that the Secretary's policy and practice “violates the APA” and to enjoin the Secretary from granting H-2A certifications that do not comply with “the wage requirements of the INA and its implementing regulations” or that “offer[] a wage lower than the prevailing wage rate.” Id. at 17-18 (Compl. Prayer).

         2. Plaintiffs' Wrongful Certification Claims

         Plaintiffs' remaining two claims challenge the Secretary's certification of five employers for the 2018 season: McCabe Agribusiness, Inc. (Montana), Peri & Sons Farms, Inc. (Nevada), Daniels Produce, LLC (Nebraska), United Agronomy, LLC (North Dakota), and Del Valle Fresh, Inc. (South Carolina). Id. at 9-12 (Compl. ¶¶ 31, 34, 37, 40, 43) (hereinafter “the wrongful certification claims”). Plaintiffs allege that each of these five employers applied for a temporary foreign labor certification with a wage that was lower than the “prevailing wage, ” “as calculated by the Occupational Employment Survey [“OES”] and published on the OFLC's own website.” Id. They further allege that, “[b]y approving each of the five job orders discussed above, [the Secretary] has both caused lower wages to be offered for those jobs and adversely affected the wages for U.S. workers in other jobs in those industries and states.” Id. at 13 (Comp. ΒΆ 46). The individual plaintiffs allege that the lower wages deterred them from applying for and accepting these ...


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