Bayou Lawn & Landscape Servs. v. Perez

• Decision Date: 18 December 2014
• Docket Number: Case No. 3:12cv183/MCR/CJK.
• Citation: 81 F.Supp.3d 1291
• Parties: BAYOU LAWN & LANDSCAPE SERVICES, et al., Plaintiffs, v. Thomas E. PEREZ, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

81 F.Supp.3d 1291

BAYOU LAWN & LANDSCAPE SERVICES, et al., Plaintiffs

v.Thomas E. PEREZ, et al., Defendants.

Case No. 3:12cv183/MCR/CJK.

United States District Court, N.D. Florida, Pensacola Division.

Signed Dec. 18, 2014.

Laura Metcoff Klaus, Robert Phillip Charrow, Greenberg Traurig LLP, Washington, DC, Laura Foote Reiff, Michael R. Sklaire, Greenberg Traurig PA, McLean, VA, Monte Benton Lake, Wendel Vincent Hall, CJ Lake LLC, Washington, DC, for Plaintiffs.

Geoffrey Forney, Glenn Matthew Girdharry, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

M. CASEY RODGERS, Chief Judge.

The Plaintiffs in this case challenge a regulation issued by the United States Department of Labor (“DOL”) in connection with the H–2B visa program on grounds that DOL had no authority to issue the regulation.¹ See Temporary Non–Agricultural Employment of H–2B Aliens in the United States, Final Rule, 77 Fed.Reg. 10,038 (Feb. 21, 2012). The parties have filed cross-motions for summary judgment. For the reasons set forth below, the Court finds that Plaintiffs' motion should be granted and Defendants' motion should be denied.

Background²

The Immigration and Nationality Act of 1952 (“INA”) established a comprehensive statutory framework for the regulation of immigration in this country. See Immigration and Nationality Act of 1952 (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. In relevant part, the INA included provisions for permanent and temporary foreign workers and provided a means through which those workers could enter the United States for employment purposes as long as certain conditions were met. Prior to 1986, a single program existed for all temporary foreign workers. Congress decided, however, that the earlier program did not “fully meet the need for an efficient, workable and coherent program that protect[ed] the interests of agricultural employers and workers alike” and therefore amended the INA as part of the Immigration Reform and Control Act of 1986 to provide for two separate programs: the H–2A program for agricultural workers and the H–2B program for non-agricultural workers. H.R.Rep. No. 99–682, pt. 1, at 80; see also Immigration Reform and Control Act of 1986, Pub. Law No. 99–603, § 301(a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(ii)(a) ).

Under the H–2B program, which is the program relevant to this case, an employer may hire an individual “having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country ....”³ See 8 U.S.C. § 1101(a)(15)(H)(ii)(b). Congress vested authority for implementation of the INA's provisions in the Attorney General, but at the same time, directed the Attorney General to consult with other appropriate governmental agencies when considering applications for admission of H–2B workers. See 8 U.S.C. §§ 1184(a)(1) and (c)(1). Under the Homeland Security Act of 2002, Congress transferred enforcement of the immigration laws from the Attorney General to the Secretary of the Department of Homeland Security (“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107–296, § 402, 116 Stat. 2135, 2178 (2002). Although DHS is charged with deciding whether to grant or deny applications for H–2B visas, it delegated to the Secretary of Labor the authority to “separately establish ... procedures for administering th[e] temporary labor certification program under his or her jurisdiction.” 8 C.F.R. § 214.2(h)(6)(iii)(D). Consistent with this delegation of authority, DHS requires an employer seeking to petition for an H–2B visa to first apply for and receive a temporary labor certification from the Secretary of Labor. 8 C.F.R. §§ 214.2(h)(6)(iii)(A), (C). The certification constitutes “advice ... on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers.” 8 C.F.R. § 214.2(h)(6)(iii)(A).

DOL first issued formal regulations establishing standards and procedures for certifying employers' requests to import H–2 workers in 1968. See 33 Fed.Reg. 7,570 –01 (May 22, 1968). DOL later supplemented the regulations with informal, non-binding guidance letters. It was not until 2008 that DOL published another formal regulation governing the labor certification process. See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture (H–2B Workers), 73 Fed.Reg. 78,020 (Dec. 19, 2008) (codified at 20 C.F.R. pts. 655–56). On February 21, 2012, DOL issued the regulation at issue in this case (“2012 Rule”) and, in doing so, significantly changed the manner in which the H–2B program would be administered. See Temporary Non–Agricultural Employment of H–2B Aliens in the United States, 77 Fed.Reg. 10,038 (Feb. 21, 2012).⁴

In April 2012, Plaintiffs filed this lawsuit, seeking to invalidate the 2012 Rule based primarily on DOL's lack of rulemaking authority.⁵ Following a hearing on Plaintiffs' motion for a preliminary injunction, the undersigned determined that Plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim that DOL lacked rulemaking authority in connection with the H–2B program and preliminarily enjoined DOL from enforcing the 2012 Rule. DOL appealed the Court's order to the Eleventh Circuit, which in turn affirmed. See Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir.2013). The parties later filed the pending cross-motions for summary judgment. Plaintiffs continue to maintain that DOL lacked authority to promulgate the 2012 Rule. In response, DOL argues that it had authority to issue the 2012 Rule under the Wagner–Peyser Act, 29 U.S.C. § 49 et seq.⁶ DOL further argues that the Court lacks subject matter jurisdiction to proceed, an issue the Court will address first.

Discussion⁷

1. Standing

DOL argues, as it did in response to Plaintiffs' motion for a preliminary injunction, that Plaintiffs lack standing to bring the claims asserted in this lawsuit. This time, DOL bases its standing argument on the constitutional principle of redressability, which is designed to ensure that the plaintiff's injury will likely, as opposed to merely possibly, be redressed by a favorable court decision.⁸ See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal marks omitted); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ; Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1266 (11th Cir.2011) (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted)); Fla. Family Policy Council v. Freeman, 561 F.3d 1246, 1253 (11th Cir.2009) (quoting Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 ). The Eleventh Circuit has recognized that “[r]edressability is established when a favorable decision would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Hollywood Mobile Estates, 641 F.3d at 1266 (internal marks omitted).

On this issue, DOL argues that even assuming the Court decides the agency lacked authority to issue the 2012 Rule, the Plaintiffs still will not receive the relief they request in this case because DHS nonetheless will continue to consult with DOL and can effectuate the essential terms of the 2012 Rule—albeit under a different rule—based on DOL's advice (see 8 U.S.C. § 1101(a)(15)(H)(ii) ), and thus, according to DOL, Plaintiffs will remain subject to the 2012 Rule's substantive terms, even if the 2012 Rule can no longer be implemented. The Court disagrees. The relief Plaintiffs seek is invalidation of the 2012 Rule, plain and simple. In the event the Court grants that relief, the 2012 Rule cannot be enforced by any agency, including DHS. Whether DHS elects to publish another rule that says and does the same thing as the 2012 Rule is beside the point. The only question to be decided in this case is whether DOL had legislative rulemaking authority under the H–2B program when it promulgated the 2012 Rule. To be sure, this decision is more than academic. The Court thus rejects DOL's standing challenge.

2. Subject Matter Jurisdiction

DOL also argues that the Court “lacks jurisdiction over Plaintiffs' challenge to DHS's decision to grant controlling weight to the advisory opinions of DOL regarding labor market determinations in the H–2B program.” According to DOL, “[b]ecause the consultation process between the Secretary of Homeland Security and the Secretary of Labor is committed to agency discretion by law, there is no judicially manageable standard by which the Court may review this consultation.” DOL also asserts that “Congress specifically exempted the ... consultation process from judicial review under the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, as amended by the REAL ID Act of 2005.” DOL misconstrues Plaintiffs' position. Plaintiffs do not challenge or seek to compel any action by DHS. Instead, Plaintiffs challenge DOL's authority to issue the 2012 Rule, which plainly is subject to judicial review under the APA. See Motion Picture Ass'n of Am. v. F.C.C., 309 F.3d 796, 801 (D.C.Cir.2002) (“An agency may not promulgate even reasonable regulations that claim a force of law without delegated authority from Congress.”); Real v. Simon, 510 F.2d 557, 564 (11th Cir.1975) (“There can be no doubt that the authority of an administrative agency to promulgate regulations is limited by the statute authorizing the regulations. Thus, an administrative agency has no power to create a rule or regulation that is out of harmony with the statutory grant of its authority.”) (internal marks omitted); see also 5...