Morales v. Lyng, 87 C 20522.

• Decision Date: 26 September 1988
• Docket Number: No. 87 C 20522.,87 C 20522.
• Citation: 702 F. Supp. 161
• Parties: Heriberto MORALES, Sadot Fabian, Miguel Sanchez, Abraham Ortiz, Emiliano Celaya, Felipe Morales, Arturo Casteneda, Fernando Ortiz, Julio Carbajal, H & E Sod Nursery, Inc., Sodgrowers Association of Mid-America, and American Sod Producers Association, Plaintiffs, v. Richard E. LYNG, Secretary of Agriculture, Edwin Meese III, Attorney General of the United States of America; Alan C. Nelson, Commissioner, Immigration and Naturalization Service, United States Department of Justice, and George P. Schultz, Secretary of State, Defendants.
• Court: U.S. District Court — Northern District of Illinois

702 F. Supp. 161

Heriberto MORALES, Sadot Fabian, Miguel Sanchez, Abraham Ortiz, Emiliano Celaya, Felipe Morales, Arturo Casteneda, Fernando Ortiz, Julio Carbajal, H & E Sod Nursery, Inc., Sodgrowers Association of Mid-America, and American Sod Producers Association, Plaintiffs, v. Richard E. LYNG, Secretary of Agriculture, Edwin Meese III, Attorney General of the United States of America; Alan C. Nelson, Commissioner, Immigration and Naturalization Service, United States Department of Justice, and George P. Schultz, Secretary of State, Defendants.

No. 87 C 20522.

United States District Court, N.D. Illinois, W.D.

September 26, 1988.

Vincent H. Beckman, Jean Agathen, Illinois Migrant Legal Assistance Project, Jeffrey J. Baker, John J. Gasparovic, Thomas F. Gardner, Jones, Day, Reavis & Pogue, Manuel Sanchez, Kate Collins, Sanchez & Daniels, Chicago, Ill., for plaintiffs.

James G. Hoofnagle, Asst. U.S. Atty., Chicago, Ill., for defendants.

ORDER

ROSZKOWSKI, District Judge.

This action comes before the court on the defendants' objections to the Magistrate's report and recommendation that the court enter judgment in favor of the plaintiffs as to Count II of their complaint. For the reasons set forth below, the court adopts the Magistrate's recommendation with modification.

DISCUSSION

The defendants presently have a variety of objections to the Magistrate's recommendations. In the interest of efficiency and to avoid duplication, the court will not here recite the history of the SAW program and the instant case, but defers to the Magisrate's "Nature of the Case" section in his Report and Recommendation. In short, the instant case involves various sod workers, growers and sod grower's associations challenging the Secretary's exclusion of the commodity sod from the "Special Agricultural Worker's" ("SAW") program. The plaintiffs contend that the Secretary acted arbitrarily and capriciously when he excluded sod from the definition of "other perishable commodities" — a critical definition for inclusion in the SAW program. In addition, the plaintiffs assert that the defendants' violated § 553 of the A.P.A., 5 U.S.C. § 553.

In sum, the Magistrate found that the Secretary of Agriculture ("Secretary") acted arbitrarily and capriciously by excluding sod from the definition of "other perishable commodities." Secondly, the Magistrate found that the Secretary's statement of basis and purpose violated Section § 553 of the Administrative Procedure Act ("A.P. A."). Finally, the Magistrate fashioned relief consistent with his findings.

The court will address the substance of the defendants' various objections.

I. Exclusion of Sod from "Other Perishable Products."

A. Seasonal

The defendants argue "contrary to the Magistrate's conclusion, sod's characteristic of taking `multi-years to reach maturity' is highly relevant because it indicates that planting, cultural practices, cultivating, growing, and harvesting of sod are not performed exclusively at certain times of the year." The court finds this objection unpersuasive. First, the fact that a commodities' growth cycle is multi-annual does not directly lead to the conclusion that certain activities occur year round. Second, even if certain activities do occur year round like "growing", there is no reason to believe that certain employment practices such as harvesting and planting occur continuously and not during certain times of year requiring extra help. Accordingly, the court adopts the Magistrate's recommendation.

B. Critical and Unpredictable Labor Demands

The defendants contend that the Secretary reasonably determined that sod is not subject to "critical and unpredictable" labor demand. The Secretary also asserts that the Magistrate concentrated unduly on the volume of the comments and not their contents. The defendants also argue that the comments relied upon by the Secretary were factual in nature as opposed to the pro forma conclusory statements found in a majority of the comments. Also, the defendants find fault in the comments that include "consumer demand" as a factor in the unpredictability of labor demand. Finally, the defendants reason that the comments relied upon by the Secretary were against the interest of the commentators and thus more credible than the other comments.

In finding that the Secretary acting arbitrarily and capriciously in excluding sod, the Magistrate found that the Secretary had failed to consider important aspects of the administrative record and hence the issue itself. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983).

The key to determining if labor demand is "critical and unpredictable" is simply understanding that if a farmer cannot predict the initiation of field work with any certainty 60 days in advance, then labor demand is unpredictable. The Secretary found that labor demand with regard to sod was not unpredictable and based this determination, according to his basis of purpose statement, entirely on one paragraph found in approximately eleven comments. The court does not challenge the Secretary's prerogative to base his determination on even one comment if that comment sufficiently persuades the Secretary as to the logic of its content. The court, however, is concerned that the Secretary dismissed the other comments without any good reason. Again, the court does not begrudge the Secretary his right to summarily dismiss frivolous and repetitive comments. However, the court finds that such is not the case here.

To begin, the defendants make much of the difference between the comments relied on by the Secretary and those rejected. The defendants state that the accepted comments are factually based on past experience and admissions against interest and that the other comments are endless clones of conclusory statements. After reviewing the comments, the difference between the comments rejected and those accepted is not so great. The eleven comments accepted are in the same pattern as many of the rejected comments. Additionally, the defendants' vaunted factual statements are merely two sentences long, while other comments describing the unpredictability of labor demands are at least as detailed. Compare Comment No. 26 with No. 36. Is the comment: "The sod business uses seasonal workers to mow the product during certain times of the year. These times are often related to weather conditions which cause demand for sod to fluctuate and that makes sod difficult to predict the amount of labor needed from time to time." any less factual than "Based on past experience, we can forecast our labor requirements both in terms of dates and number of workers."? The defendants' characterization of one comment as factual and the other as conclusory is not enough to permit one set of comments to be summarily dismissed without mention.

The court also takes issue with the defendants objection to the Magistrate recognizing consumer demand as a factor in the unpredictability of sod's labor demand. "Consumer demand" was mentioned in the Magistrate's comments asserting the "critical and unpredictable" nature of sod's labor demand. The defendant pledges that the critical and unpredictable nature of a commodities' labor demand only involves the natural effect of the growth cycle on the commodity and not consumer demand. The defendant cites Senator Wilson's statement that provides: "When we say perishable crops ... we are talking about those that must be harvested immediately when ripe or the crop risks being lost." Statement of Senator Wilson, Cong.Rec. S11606 (September 17, 1985). The definition of "critical and unpredictable", however, is void of a requirement for "perishability" per se. Indeed the entire definition of "other perishable commodities" does not include a per se "perishability" requirement. See 52 Fed.Reg. 20376 § 1d.3, 7.

Finally, the court finds it curious that defendants term the eleven "accepted" comments as admissions against interest. Informal rulemaking is not an adversary proceeding and...