Bayou Lawn & Landscape Servs. v. Johnson

• Decision Date: 25 March 2016
• Docket Number: Case No.3:15cv249/MCR/EMT
• Citation: 173 F.Supp.3d 1271
• Court: U.S. District Court — Northern District of Florida
• Parties: Bayou Lawn & Landscape Services, et al., Plaintiffs, v. Jeh C. Johnson, et al., Defendants.

173 F.Supp.3d 1271

Bayou Lawn & Landscape Services, et al., Plaintiffs,

v.Jeh C. Johnson, et al., Defendants.

Case No.3:15cv249/MCR/EMT

United States District Court, N.D. Florida, Pensacola Division .

Signed March 25, 2016

Wendel Vincent Hall, Hall Law Firm PLLC, Washington, DC, Robert Conrad Palmer, III, Wade Palmer & Shoemaker PA, Pensacola, FL, for Plaintiffs.

Erez Reuveni, Glenn Matthew Girdharry, Sarah Stevens Wilson, US Department of Justice, Washington, DC, for Defendants.

ORDER

M. CASEY RODGERS

, CHIEF UNITED STATES DISTRICT JUDGE

This case involves a challenge to the validity of two regulations promulgated jointly by the Department of Homeland Security and the Department of Labor in 2015 in connection with the H–2B visa program, which allows employers to import temporary, foreign workers for non-agricultural jobs in certain circumstances. See Temporary Non–Agricultural Employment of H–2B Aliens in the United States, 80 Fed.Reg. 24042 (Apr. 29, 2015)

(“2015 Program Rule”); Wage Methodology for the Temporary Non–Agricultural Employment H–2B Program, 80 Fed.Reg. 24146 (Apr. 29, 2015) (“2015 Wage Rule”). The Plaintiffs are Bayou Lawn and Landscaping Services, Superior Forestry Services, National Hispanic Landscape Alliance, National Association of Landscape Professionals, and Small and Seasonal Business Legal Center, and the Defendants are Jeh Johnson, Secretary of the Department of Homeland Security, Leon Rodriguez, Director of the United States Citizenship and Immigration Service, Thomas E. Perez, Secretary of the Department of Labor, and Portia Wu, Assistant Secretary of the Employment and Training Administration. The parties have filed cross Motions for Summary Judgment. ECF No. 21, 24. Having carefully considered the matter, the Court finds that Defendants' Motion is due to be granted, and Plaintiffs' Motion is due to be denied.¹

Background

The Immigration and Nationality Act of 1952 established a comprehensive statutory framework for the regulation of immigration in this country. See Immigration and Nationality Act of 1952 (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101, et seq.

In relevant part, the INA included provisions for permanent and temporary foreign workers and provided a means through which those workers could enter the United States for employment purposes as long as certain conditions were met. Prior to 1986, a single program existed for all temporary foreign workers. Congress decided, however, that the earlier program did not “fully meet the need for an efficient, workable and coherent program that protect[ed] the interests of agricultural employers and workers alike” and therefore amended the INA as part of the Immigration Reform and Control Act of 1986 to provide for two separate programs: the H–2A program for agricultural workers and the H–2B program for non-agricultural workers. H.R.Rep. No. 99–682, pt. 1, at 80; see also Immigration Reform and Control Act of 1986 (“IRCA”), Pub. L. No. 99–603, § 301(a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(ii)(a) -(b) ).

Under the H–2B program, which is the program relevant to this case, an employer may hire an individual “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country ....” See 8 U.S.C. § 1101(a)(15)(H)(ii)(b)

. Initially, Congress vested authority for implementation of the INA's provisions in the Attorney General. 8 U.S.C. § (c)(1). However, Congress later transferred enforcement of the immigration laws to the Secretary of the Department of Homeland Security (“DHS”) under the Homeland Security Act of 2002. Homeland Security Act of 2002, Pub. L. No. 107–296, § 402, 116 Stat. 2135, 2178 (2002). Although DHS is charged with deciding whether to grant or deny applications for H–2B visas, Congress directed it to consult with other appropriate governmental agencies when considering applications for admission of H–2B workers. See 8 U.S.C. §§ 1184(a)(1). Consistent with this directive, DHS requires an employer petitioning for an H–2B visa to first apply for and receive a temporary labor certification from the Secretary of Labor. 8 C.F.R. §§ 214.2(h)(6)(iii)(A), (C). The certification constitutes “advice ... on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers.” 8 C.F.R. § 214.2(h)(6)(iii)(A).

The Department of Labor (“DOL”) first issued formal regulations establishing standards and procedures for certifying employers' requests to import H–2 workers in 1968. See 33 Fed.Reg. 7570 (May 22, 1968)

. DOL later supplemented the regulations with informal, non-binding guidance letters. It was not until 2008 that DOL published another formal regulation governing the labor certification process. See

Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture (H–2B Workers), 73 Fed.Reg. 78020 (Dec. 19, 2008). The 2008 regulations provided rules governing, inter alia, the wages that employers were required to pay H–2B workers. 73 Fed.Reg. at 78056–57. These regulations spawned a long-running controversy over administration of the H–2B program that continues to the present day.

Since 2008, opponents of various aspects of the H–2B program have filed a series of successful court challenges, see Comité de Apoyo a los Trabajadores Agrícolas v. Solis, No. 2:09–240 LP, 2010 WL 3431761 (E.D.Pa. Aug. 30, 2010)

; Comité de Apoyo a los Trabajadores Agrícolas v. Solis, 933 F.Supp.2d 700 (E.D.Pa.2013) ; Bayou Lawn & Landscape Servs. v. Sec'y of Labor (Bayou I), 713 F.3d 1080 (11th Cir.2013) ; Comité de Apoyo a los Trabajadores Agrícolas v. Perez, 774 F.3d 173, 191 (3d Cir.2014) ; Bayou Lawn & Landscape Servs. v. Perez (Bayou II), 81 F.Supp.3d 1291 (N.D.Fla.2014) ; Perez v. Perez (Bayou III), Case No. 3:14–cv–00682–MCR–EMT (N.D.Fla. Mar. 4, 2015), and DHS and DOL have continually revised the H–2B regulations in response to these legal setbacks, see

Wage Methodology for the Temporary Non-agricultural Employment H–2B Program, 76 Fed.Reg. 3452 (Jan. 19, 2011) ; Temporary Non–Agricultural Employment of H–2B Aliens in the United States, 77 Fed.Reg. 10038 (Feb. 21, 2012) ; Wage Methodology for the Temporary Non–Agricultural Employment H–2B Program, Part 2, 78 Fed.Reg. 24047 (Apr. 24, 2013). The instant case involves a challenge to the latest of these regulations, which were promulgated jointly by the DHS and DOL in 2015. See 2015 Program Rule, 80 Fed.Reg. 24042 ; 2015 Wage Rule, 80 Fed.Reg. 24146.²

On June 1, 2015, Plaintiffs filed their Complaint in this case along with a Motion for a Temporary Restraining Order and Preliminary Injunctive Relief. The Court denied Plaintiffs' request for a temporary restraining order, and Plaintiffs subsequently withdrew their request for preliminary injunctive relief in exchange for Defendants' assent to expedited discovery. The parties then filed competing motions for summary judgment, which are now before the Court.

Discussion

In their motion for summary judgment, Plaintiffs argue: (1) DHS violated the APA, 5 U.S.C. § 553

, by promulgating the 2015 Program Rule without prior notice and comment; (2) DHS and DOL violated the APA by promulgating the 2015 Wage Rule without prior notice and comment; (3) the 2015 Program Rule and Wage Rule's provision for administering the H–2B program in a way that does not “adversely affect” United States workers impermissibly alters Congress's statutory scheme for that program under the IRCA, 8 U.S.C. § 1101(a)(15)(H)(ii)(b), and is an arbitrary and capricious “per se” rule; and (4) the 2015 Wage Rule is arbitrary and capricious under the APA, 5 U.S.C. § 706, because its formula for determining whether a particular H–2B wage level would adversely affect United States workers is not rational.³ Defendants respond that they lawfully skipped notice and comment in regard to the 2015 Program Rule under the APA's “good cause” exception, and did in fact provide notice and comment in connection with the 2015 Wage Rule. They argue that DHS and DOL may consider whether admitting H–2B workers will “adversely affect” United States workers under their broad authority to determine the appropriate criteria for importation of foreign labor under the INA and IRCA. Finally, Defendants attack Plaintiffs' standing to bring this suit based on the lack of a cognizable injury.

As a preliminary matter, the Court observes that Plaintiffs have explicitly “move[d] for entry of summary judgment on each count of their Complaint.” Plaintiffs' Complaint contains four counts, alleging: (1) DHS and DOL violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 553

, in promulgating the 2015 Program Rule and Wage Rule without prior notice and comment; (2) the 2015 Program Rule and Wage Rule are unlawful under the APA, 5 U.S.C. § 706, because they are arbitrary and capricious;⁴ (3) DHS and DOL violated the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 601, et. seq.,

by failing to conduct a new regulatory flexibility analysis in connection with the 2015 Program Rule and Wage Rule; and (4) a writ of mandamus is appropriate to compel DHS and DOL to continue processing H–2B visa requests in the event that the 2015 Program Rule and Wage Rule are invalidated. Plaintiffs, however, have completely failed to argue any grounds for summary judgment on two of these counts in their Motion for Summary Judgment⁵ or Response in Opposition to Defendants' Motion for Summary Judgment. Specifically, Plaintiffs do not mention the DHS and DOL's alleged failure to conduct a regulatory flexibility analysis (Count III), or the propriety of issuing a writ of mandamus (Count IV) in support of or in...