Hispanic Affairs Project v. Acosta

• Decision Date: 07 July 2017
• Docket Number: Civil Action No. 15–cv–01562 (BAH)
• Parties: HISPANIC AFFAIRS PROJECT, et al., Plaintiffs, v. Alexander ACOSTA, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants.
• Court: U.S. District Court — District of Columbia

263 F.Supp.3d 160

HISPANIC AFFAIRS PROJECT, et al., Plaintiffs,

v.Alexander ACOSTA, in his official capacity as Secretary of U.S. Department of Labor, et al.,¹ Defendants.

Civil Action No. 15–cv–01562 (BAH)

United States District Court, District of Columbia.

Signed July 7, 2017

Alexander Hood, Nina E. DiSalvo, Denver, CO, Dermot Lynch, William W. Taylor, III, Zuckerman Spaeder LLP, Washington, DC, for Plaintiffs.

Erez Reuveni, Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, Heather G. Sokolower, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION

Chief Judge Beryl A. Howell

The 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").² 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. 83.³ 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 APA subsection. Count V asserts three claims under § 706(2)(A) of the APA, 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. ¶¶ 115–16.⁴

Pending before the Court are four motions, which became ripe on May 19, 2017, with the filing of the parties' Joint Appendix:⁵ (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 APA 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.

I. BACKGROUND

Much of 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.

The 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 I–129 Petition to Import a Nonimmigrant Worker ("I–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 I–129 Petition").⁶ Upon approval of an I–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), 1221(h).⁷

A. The Mendoza Litigation

The 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–2A 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.

B. The 2015 Final Rule

In 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.

The 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...