697 F.Supp.2d 5 (D.D.C. 2010), C. A. 09-0062 (RMU), United Farm Workers v. Solis

• Docket Nº: Civil Action 09-0062 (RMU).
• Citation: 697 F.Supp.2d 5
• Opinion Judge: RICARDO M. URBINA, District Judge.
• Party Name: UNITED FARM WORKERS et al., Plaintiffs, v. Hilda L. SOLIS, in her official capacity as Secretary of the U.S. Department of Labor, et al., Defendants.
• Attorney: Bruce Goldstein, Virginia E. Ruiz, Farmworker Justice, Lillian Howard Potter, Wilmer Hale, Washington, DC, for Plaintiffs. Geoffrey Forney, Theodore W. Atkinson, U.S. Department of Justice, Washington, DC, for Defendants.
• Case Date: March 22, 2010
• Court: United States District Courts, United States District Court (Columbia)

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697 F.Supp.2d 5 (D.D.C. 2010)

UNITED FARM WORKERS et al., Plaintiffs,

v.

Hilda L. SOLIS, in her official capacity as Secretary of the U.S. Department of Labor, et al., Defendants.

Civil Action No. 09-0062 (RMU).

United States District Court, District of Columbia.

March 22, 2010

Bruce Goldstein, Virginia E. Ruiz, Farmworker Justice, Lillian Howard Potter, Wilmer Hale, Washington, DC, for Plaintiffs.

Geoffrey Forney, Theodore W. Atkinson, U.S. Department of Justice, Washington, DC, for Defendants.

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MEMORANDUM OPINION

DENYING THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This action is before the court on the plaintiffs' motion for partial summary judgment. The plaintiffs, two farm workers' unions and eight individual farm workers, contend that the defendant, Department of Labor (" DOL" ) violated the Administrative Procedure Act (" APA" ), 5 U.S.C. §§ 701 et seq., when it promulgated the most recent adverse effect wage rate (" AEWR" ) provisions of the H-2A foreign agricultural-worker program. The court denies the plaintiffs' motion for partial summary judgment because the plaintiffs have failed to demonstrate that the DOL's actions were arbitrary, capricious, an abuse of discretion or not in accordance with any law. The court also orders further briefing on the status of the plaintiffs' claims addressed in this motion.

II. FACTUAL & PROCEDURAL BACKGROUND

A. Statutory Framework

Under the Immigration and Nationality Act (" INA" ), foreign workers hired to perform temporary agricultural work in the United States can be granted H-2A non-immigrant status, through a program that extends temporary visas to nonimmigrant foreign workers who " hav[e] a residence in a foreign country which [they] ha[ve] no intention of abandoning [and] who [are] coming [ ] 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). Congress delegated the certification of H-2A petitions to the Secretary of Labor. Id. § 1188. Agricultural employers may bring foreign H-2A workers into the United States to perform agricultural labor for a period of up to ten months, id. § 1101(a)(15)(H)(ii)(a), but must certify that there are insufficient U.S. workers " who are able, willing, and qualified" to perform the work for which the foreign workers are being recruited to perform, id. § 1188(a)(1)(A), and that the employment of H-2A workers " will not adversely affect the wages and working conditions of workers in the United States similarly employed," id. § 1188(a)(1)(B). An employer who wishes to hire H-2A workers must submit an application to the DOL specifying, among other information, the description of the work to be performed, the number of workers to be hired and the dates for which the H-2A workers will be hired to work. 20 C.F.R. § 655.101. To ensure that the wages of U.S. workers will not be adversely affected by H-2A workers, the DOL utilizes AEWRs,¹54 Fed. Reg. 28,037 (July 5, 1989), which, until 2009, were calculated using the Department of Agriculture's Farm Labor Survey (" FLS" ), id. at 28,040.

On February 13, 2008, the DOL proposed changes to the rules governing the H-2A program. Defs.' Opp'n at 2; see also 73 Fed. Reg. 8,538 (Feb. 13, 2008). The DOL invited comments on alternative methods of calculating AEWRs and ultimately chose to change the methodology to use data garnered by the Bureau of Labor Statistics's Occupational Employment Survey (" OES" ) rather than the FLS data. 73 Fed. Reg. at 8,550. The DOL also established a four-level system for the calculating AEWRs based on the skill level of

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the particular job. Id. at 77,176-77. The DOL noted that the new four-level system would " add further precision to the AEWRs." Id. On December 18, 2008, the DOL issued a final rule (" the December 2008 Rule" ) revising the H-2A program. See 73 Fed. Reg. 77,110 (Dec. 18, 2008). The AEWR methodology and the changes thereto were addressed in detail in the preamble to the December 2008 Rule. Id. at 77,170-76.

B. The Parties

Plaintiffs United Farm Workers and Pineros y Campesinos Unidos del Noroeste (" PCUN" ) are farm workers' unions that advocate for and promote the employment rights of farm workers. Compl. ¶ 4-5. The individual plaintiffs comprise two distinct groups of farm workers: U.S. citizens and non-citizens who hold H-2A visas. Id. ¶ ¶ 6-14. The defendants are the DOL and the Department of Homeland Security and their respective Secretaries. Intervenor, North Carolina Growers' Association, Inc. (" NCGA" ) " is a non-profit association whose sole purpose is to process H-2A applications and related paperwork for its members, provide assistance to its members in complying with the H-2A program, and to serve as a political advocate, where needed, for its members' interests." NCGA Mot. to Intervene at 3. NCGA has " more than 700 member farmers who employ approximately 6,500 H-2A workers per year." Id.

C. Procedural History

On January 12, 2009, the plaintiffs filed a complaint in this court along with a motion for a temporary restraining order and preliminary injunction to enjoin the implementation of the December 2008 Rule. See generally Compl.; Pls.' Mot. for Prelim. Inj. The court denied the plaintiffs' motion for a temporary restraining order and preliminary injunction, concluding that the plaintiffs had failed to demonstrate irreparable harm. See generally Mem. Op., 593 F.Supp.2d 166 (D.D.C.2009).

On May 29, 2009, the DOL announced that it was suspending the December 2008 Rule, to potentially reconsider a number of provisions, including the changes to the AEWR methodology. 74 Fed. Reg. 25,972-73 (May 29, 2009). The DOL explained that it had " encountered a number of operational challenges which ... prevent[ed] the full, effective and efficient implementation of the [December 2008 Rule]." Id. ; see also Pls.' Mot. at 3. The suspension was scheduled to go into effect on June 29, 2009, but the District Court for the Middle District of North Carolina preliminarily enjoined the DOL from implementing the suspension. See N.C. Growers' Ass'n v. Solis, 644 F.Supp.2d 664 (M.D.N.C.2009).

On June 21, 2009, the plaintiffs filed this motion for partial summary judgment on their claim challenging the DOL's use of the OES data to calculate the AEWR and the implementation of the four-level system. See generally Pls.' Mot. The plaintiffs allege that the DOL's use of the OES data to set the AEWR and utilization of the four-level system violates the INA and the APA. See generally id. As the motion is now fully briefed,² the court turns to the

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applicable legal standard and the parties' arguments.

III. ANALYSIS

A. Legal Standard for Judicial Review of Agency Actions

The APA entitles " a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof." 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). In making this inquiry, the reviewing court " must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations omitted). At a minimum, the agency must have considered relevant data and articulated an explanation establishing a " rational connection between the facts found and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986); Tourus Records, 259 F.3d at 736. An agency action usually is arbitrary or capricious if

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Veh. Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also County of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999) (noting that " [w]here the agency has failed to provide a reasoned explanation, or where the record belies the agency's conclusion, [the court] must undo its action" ).

As the Supreme Court has explained, however, " the scope of review under the ‘ arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Veh. Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856. Rather, the agency action under review is " entitled to a presumption of regularity." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

B. The Court Denies the Plaintiffs' Motion for Partial Summary Judgment

The plaintiffs contend that the DOL violated the APA when it chose to rely on the OES instead of the FLS data in calculating the AEWR. See Pls.' Mot. at...