Comite' De Apoyo Trabajadores Agricolas v. Perez
| Decision Date | 05 December 2014 |
| Docket Number | No. 14–3557.,14–3557. |
| Citation | 774 F.3d 173 |
| Parties | COMITE' DE APOYO A LOS TRABAJADORES AGRICOLAS; Pineros Y Campesinos Unidos Del Noroeste; Northwest Forest Worker Center; Jesus Martin Sauceda Pineda; Juan Doe, Appellants, v. Thomas E. PEREZ, in his official capacity as United States Secretary of Labor; United States Department of Labor; Eric M. Seleznow, in his official capacity as Acting Assistant Secretary for Employment and Training. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Sarah M. Classen Centro de los Derechos del Migrante, Inc., Baltimore, MD, Vanessa A. Coe, Gregory S. Schell, Florida Legal Services, Inc., Lake Worth, FL, D. Michael Dale, Northwest Workers' Justice Project, Portland, OR, Arthur N. Read, Friends of Farmworkers, Inc., Philadelphia, PA, Meredith B. Stewart, Southern Poverty Law Center, New Orleans, LA, Edward J. Tuddenham, (argued), New York, NY, Attorneys for Appellants.
Stuart F. Delery, Assistant Attorney General, Glenn M. Girdharry, Senior Litigation Counsel, Geoffrey Forney, (argued), Senior Litigation Counsel, United States Department of Justice, Washington, DC, Attorneys for Appellees.
Before: FUENTES, GREENBERG, and COWEN, Circuit Judges.
This appeal is concerned with the ripeness doctrine, a constitutional mandate derived from Article III's requirement that federal courts hear only cases or controversies. U.S. Const., Art. III, § 2. The doctrine assists courts in avoiding the need to address speculative cases, in deferring to administrators with subject matter expertise, and in deciding cases on the basis of fully-developed records. The Supreme Court has explained that the question of whether a controversy is “ripe” for judicial resolution has two aspects that require a court to evaluate both the fitness of the issues for judicial decision and the possible hardship to the parties if it withholds consideration of a case presented to it. To some extent these inquiries require a court to exercise judgment, rather than to apply a black-letter rule. Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).
In this case involving rules applying to the admission of certain foreign workers into the United States for temporary employment, we are mindful of the foregoing considerations and give due regard to the expertise exercised by the Department of Labor (“DOL”), the implicated agency principally involved in this case, and the historical shifts and political compromises underlying the DOL's adoption of the rules at issue. Furthermore, in view of the subject matter of this litigation, we are concerned with the congressional policy to protect American workers from a depression of their wages attributable to the entry of foreign workers into the domestic labor market.
Plaintiffs appeal from an order of the District Court dismissing their challenge to 20 C.F.R. § 655.10(f), a DOL regulation applicable in the administration of the H–2B visa program that authorizes the Department of Homeland Security (“DHS”) to admit certain unskilled foreign workers into this country for temporary employment. On this appeal, we are concerned with an aspect of the H–2B program, the 2009 Wage Guidance, which authorizes employers to use privately-funded wage surveys to set the prevailing market wage for certain occupations. The Court at the outset of its consideration of the case invoked the ripeness doctrine when it made a determination that the matter was not at that time justiciable and, accordingly, the Court would not consider the merits of plaintiffs' challenge to the regulation. Comité de Apoyo a Los Trabajadores Agricolas v. Perez, No. 14–2657, 2014 WL 4100708 (E.D.Pa. July 23, 2014) ( CATA III). We determine that this case is ripe for judicial review, render judgment for plaintiffs, and hold that 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious and in violation of the APA. We order vacatur of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. 1
Plaintiffs based their complaint challenging 20 C.F.R. § 655.10(f) and DOL's 2009 Wage Guidance on the Administrative Procedure Act (“APA”). This case is another step in a long-running controversy concerning the administration of the H–2B program. Resolution of discrete disputes arising from the controversy have led to this Court and district courts setting out the factual background and procedural history of the controversy in previous opinions. See Comité de Apoyo a los Trabajadores Agrícolas v. Solis, No. 2:09–240 LP, 2010 WL 3431761 (E.D.Pa. Aug. 30, 2010) ( CATA I); Comité de Apoyo a los Trabajadores Agrícolas v. Solis, 933 F.Supp.2d 700 (E.D.Pa.2013) ( CATA II); La. Forestry Ass'n, Inc. v. Solis, 889 F.Supp.2d 711 (E.D.Pa.2012), aff'd sub nom. La. Forestry Ass'n Inc. v. Secretary, U.S. Dep't of Labor, 745 F.3d 653 (3d Cir.2014). Thus, though the issues we now address are new, we are not writing on a blank slate.
The H–2B visa program—named for the statutory section which authorized its creation 2—allows United States employers to arrange for the admission of foreign workers (“H–2B workers”) into the United States to perform temporary unskilled non-agricultural work. The governing criteria of the program were established through a process requiring the accommodation of political interests; the program balances employers' temporary need for unskilled foreign workers against the need to protect United States workers' employment, salaries, and working conditions. In furtherance of these considerations, the Immigration and Nationality Act (“INA”) authorizes the issuance of H–2B visas only in cases in which employers demonstrate that the employment of foreign workers admitted under the program will not adversely affect the wages and working conditions of United States workers. 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1182(a)(5)(A)(i)(I)-(II).
DHS and DOL currently administer the H–2B program. The INA confers broad authority on DHS to admit aliens into this country and to promulgate regulations governing the issuance of nonimmigrant visas. 8 U.S.C. § 1184(a)(1). The H–2B program establishes a method for the issuance of visas differing from the ordinary practice by which a person seeking to be admitted into the United States applies for a visa because under the H–2B program the putative employer, not the person seeking to be admitted, makes the application. Prior to filing an H–2B petition with DHS, an employer must obtain a temporary labor certification from the Secretary of Labor. 8 C.F.R. § 214.2(h)(6)(iii) (2011). That certification constitutes DOL's “advice” that DHS should grant the requested H–2B visa and must confirm that: (1) qualified workers are not available in the United States to perform the employment for which foreign workers are sought, and (2) the aliens' employment will not adversely affect wages and working conditions of similarly employed United States workers. 8 C.F.R. § 214.2(h)(6)(iii)(A), (iv)(A). DHS regulations provide for DOL to “establish procedures” for issuing labor certifications within these confines. 8 C.F.R. § 214.2(h)(6)(iii)(D). Inasmuch as the availability of workers is related to the wage offered for the employment because the higher the wage the greater the likelihoodthat domestic workers can be found for the employment, DOL issues labor certifications that certify that the employment is not being filled by United States workers at the occupation's “prevailing wage.” Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H–2B Workers), and Other Technical Changes, 73 Fed.Reg. 78,020–01, 78,056 (Dec. 19, 2008) (codified at 20 C.F.R. § 655.10(b)(2)).
DOL through its H–2B procedures long has sought to avoid causing adverse effects on American workers' wages and working conditions from the admission of foreign workers by requiring H–2B employers to offer and pay at least the prevailing wage both to the H–2B workers and to the United States workers engaged for the employment opportunity. To facilitate compliance with this requirement, DOL has from time to time published specific guidelines governing the system by which it will determine the prevailing wage for the employment that an employer is seeking to fill with foreign workers.
Over the years, DOL has changed its method for calculating prevailing wages on several occasions, often without giving interested parties notice of its intent to make the changes or the opportunity to comment on the contemplated changes, and has made the changes without explanation. Initially, DOL advised state workforce agencies that became involved in the administration of the program to calculate a single prevailing wage for any given occupation in the area of intended employment.3 In 1995, DOL altered its methodology to determine the level of prevailing wages by creating multiple prevailing wages for each H–2B occupation. DOL initially divided each H–2B occupation into two skill levels—“entry level” (“Level I”) or “experienced level” (“Level II”)—and calculated a prevailing wage for each level.4 But in 2005, DOL went further in the “2005 Wage Guidance” and divided H–2B occupations into four skill and wage levels, “specialty occupations,” borrowing from a system that Congress created to calculate prevailing wages for the separate H–1B program dealing with the admission of skilled workers. The DOL effectuated these changes through guidance letters without public notice or seeking comment comparable to the procedure followed when rules are adopted in an APA formal rulemaking process.
Prior to 2005, DOL required the use of wage rates established on the basis of government programs such as those under the Service Contract Act (“SCA”) or the Davis...
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