Florida Sugar Cane League, Inc. v. Usery

• Decision Date: 10 May 1976
• Docket Number: No. 75--3286,75--3286
• Citation: 531 F.2d 299
• Parties: FLORIDA SUGAR CANE LEAGUE, INC., Plaintiff-Appellant, v. W. J. USERY, in his capacity as Secretary of Labor, United States Department of Labor, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

531 F.2d 299

FLORIDA SUGAR CANE LEAGUE, INC., Plaintiff-Appellant, v. W. J. USERY, in his capacity as Secretary of Labor, United

States Department of Labor, et al., Defendants-Appellees.

No. 75--3286.

United States Court of Appeals, Fifth Circuit.

May 10, 1976.

Charles Kelso, Atlanta, Ga., Joseph W. Beasley, Miami, Fla., for plaintiff-appellant.

Carl W. Gerig, Jr., Counsel for Manpower Litigation, U.S. Dept. of Labor, Washington, D.C., with whom William J. Kilberg, Sol. of Labor, Craig A. Berrington, Associate Sol., Washington, D.C., Beverley R. Worrell, Regional Sol., Atlanta, Ga., and Steven M. Guttell, U.S. Dept. of Labor, Washington, D.C., were on brief for defendants-appellees.

Michael Masinter, Fla. Rural Legal Serv., Inc., Homestead, Fla., Katherine Gruenheck, Migrant Legal Action Program, Inc., Washington, D.C., William L. Botts, III, Fla. Rural Legal Serv., Inc., Belle Glade, Fla., amicus curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before DYER and CLARK, Circuit Judges, and KRAFT ^*, District Judge.

DYER, Circuit Judge:

The Florida Sugar Cane League appeals the district court's denial of an injunction against the Secretary of Labor's publication of an 'adverse effect wage rate' for sugar cane in Florida. 40 FR 20750, June 26, 1975, notice proposing annual revision of 20 C.F.R. § 602.10b(a)(1). Within the contours of our review of administrative rule-making, we find no error in the denial of an injunction.

The League Represents Florida sugar cane growers, who import temporary foreign workers to harvest the Florida sugar cane crop. Over the years the Florida sugar cane industry has used nonimmigrant aliens from the West Indies to work as temporary agricultural laborers. This employment practice is regulated by a

complex statutory structure designed to facilitate the employment of domestic workers for seasonal agricultural labor, and to permit the use of foreign nationals temporarily admitted to the United States to work for a specific employer if domestic workers are unavailable.

Elton Orchards, Inc. v. Brennan, 1 Cir. 1974, 508 F.2d 493, 495.

Aliens are permitted by statute to enter the country as 'nonimmigrants' to work only 'if unemployed persons capable of performing such service or labor cannot be found in this country.' The Immigration and Nationality Act, § 1101 et seq., 8 U.S.C.A. § 1101(a)(15)(H)(ii). The entry of these nonimmigrants is authorized 'after consultation with appropriate agencies of the Government' by a determination of the Attorney General that this statutory condition precedent has been satisfied. 8 U.S.C.A. § 1184(c). The immigration regulations under this title specify that the requisite 'consultation' be shown in the form of

'(e)ither a certification from the Secretary of Labor . . . stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed, or a notice that such certification cannot be made . . .' 8 C.F.R. § 214--2(h)(3).

Thus, from this multi-tiered scheme of delegated statutory authority, ultimately it is the Secretary of Labor who is responsible for whatever fact finding and evaluation are necessary to effectuate the statutory purpose of protecting domestic workers' right to work. The procedures and requirements pertinent to requests for certification are thus governed by regulations rather than by statute. Labor Department regulations outline the general certification procedure to be performed whenever requested by an employer seeking to employ temporary foreign workers. 20 C.F.R. § 602.10.

The central conclusion to be contained in the certification is 'that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed . . .' 20 C.F.R. § 602.10(a). The Secretary insures that domestic workers will not be adversely affected, by means of setting an annually revised 'adverse effect wage rate' for specific states. 20 C.F.R. § 602.10b(a)(1). Agricultural employers seeking certification to import foreign workers must first file with the state employment service an offer of employment to U.S. workers at a wage rate not less than these 'adverse effect wage rate'. 20 C.F.R. § 602.10(b), § 602.10(a)(j). Neither the statute nor the regulations establish a formula for the Secretary's computation of the 'adverse effect wage rate.' However, the regulations do require that

Where the prevailing rate for a crop activity in an area of employment is higher than the wage rate otherwise applicable under paragraph (a)(1) of this section, such higher prevailing rate shall be offered and paid.

20 C.F.R. § 602.10b(b).

The League objects to the manner of determination of the adverse effect wage rate used by the Secretary of Labor for the 1975--76 harvest year as arbitrary and capricious. The League makes two main arguments to support its contention that the $2.84 rate designated by the Secretary as the 1975 rate was too high: (1) the rate is the result of the Secretary's deviation from the historically applied customary formula, adopted without any explanation of reasons for the deviation; (2) that rate could be reached only through the improper consideration of a base rate derived from criteria of other statutes, thus exceeding the Secretary's authority under the Immigration and Nationality Act.

No one disputes that there are insufficient domestic workers available to harvest the Florida sugar cane crop. There is no dispute before us as to the need for certification. Rather, we are asked to review the reasonableness of the method by which the Secretary calculated the wage rate prerequisite to certification. At least since 1968 the Secretary has computed an annual revision of the adverse effect wage rates by means of the application of a mathematical formula to the prior year's adverse effect wage rates ('the formula rate'). By this customary formula the prior year's rate is increased by the percentage change in that state's hourly farm wage reported by the United States Department of Agriculture (the USDA rate). ¹

However, even before the current controversy over the 1975 rate, the method of its calculation had been necessarily varied. For, overlaid on the Labor Secretary's ongoing annual determinations (of the formula rate) was a distinctly separate, parallel wage rate determination made by the Secretary of Agriculture. The Sugar Act of 1948 provided for a minimum wage to be paid all sugar cane workers as a quid pro quo condition for such employers to receive the benefit of federal subsidy payments. 7 U.S.C.A. §§ 1100 et seq.; 7 C.F.R. Part 863. ²

For some years, the Secretary of Labor published its adverse effect wage rate (the formula rate) even though the Sugar Act 'fair and reasonable' wage rate was always higher than the formula rate. Because the specific statutory rate governing sugar alone was 'higher than the wage rate otherwise applicable', the Sugar Act wage rate, as 'the prevailing rate for a crop activity' became the legal minimum wage required to 'be offered and paid.' 20 C.F.R. § 603.10b(b). In 1971 the Secretary of Labor determined there was no longer any need to publish an adverse effect wage rate: that it had become superfluous because the Sugar Act rate was always the higher of the two. There is no dispute that the Secretary has not published adverse effect wage rates for Florida since 1971, until the contested rate of 1975, although the unpublished formula rate for the year of 1975 would have been $2.31.

With the expiration of the Sugar Act at the end of the 1974--75 crop year the Secretary had to determine a wage rate which would continue to avoid creating an adverse effect on American workers. As his base for computation, the Secretary used the legal wage rate from 1974 ('the prevailing rate' of 20 C.F.R. § 602.10b(b)) which for that year was the Sugar Act rate, namely $2.45 hourly. The 1975 adverse effect rate calculated from this base, $2.84, was reached through adjusting that base by the percentage change in the USDA hourly farm wage for Florida, of 16%. This method of computation of the 1975 adverse effect wage rate and the circumstances behind it were stated by the Secretary in the Federal Register. ³

The League objects that the use of the 1974 Sugar Act rate by the Secretary as a base for 1975 calculations clearly exceeded his statutory authority because the Act had expired.

We find however that the Secretary's adoption of the $2.84 rate was proper, and that the League's objections to the Secretary's determination are unfounded. We, of course, are bound by the distinction that '(w)hen promulgating a rule, an agency is not required to abide by the same stringent requirements of fact findings and supporting reasons which apply to adjudication.' Mobil Oil Corporation v. Federal Power Commission, D.C.Cir. 1972, 152 U.S.App.D.C. 119, 469 F.2d 130, 139, cert. denied, 1973, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 159. Here we review rule-making proceedings, rather than agency adjudication. This is clear from the Administrative Procedure Act's definition of 'rule' as including 'the approval or prescription for the future of rates, wages . . .' 5 U.S.C.A. § 551(4). The League's argument must be measured against the standard of review appropriate to this type of administrative proceeding:

It is clear that the findings required of an agency in its rule-making capacity are of a different nature from those required in adjudication (5 U.S.C. Secs. 556 and 557). (citations omitted) The relevant standard for rule-making is that 'the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.' (5 U.S.C. Sec. 553). In arriving at a policy determination...