Comité De Apoyo Trabajadores Agricolas v. Perez

• Decision Date: 23 July 2014
• Docket Number: Civil Action No. 13–7213.
• Citation: 46 F.Supp.3d 550
• Parties: COMITÉ DE APOYO A LOS TRABAJADORES AGRICOLAS, et al. v. Thomas E. PEREZ, Secretary of the Department of Labor, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

46 F.Supp.3d 550

COMITÉ DE APOYO A LOS TRABAJADORES AGRICOLAS, et al.

v.Thomas E. PEREZ, Secretary of the Department of Labor, et al.

Civil Action No. 13–7213.

United States District Court, E.D. Pennsylvania.

Signed July 23, 2014.

Arthur N. Read, Friends of Farmworkers, Inc., Philadelphia, PA, Edward Tuddenham, Law Office of Edward Tuddenham, New York, NY, D. Michael Dale, Northwest Workers' Justice Project, Portland, OR, Elizabeth D. Mauldin, Sarah Rempel Claassen, Centro De Los Derechos Del Migrante, Inc., Baltimore, MD, Meredith B. Stewart, New Orleans, LA, Gregory Scott Schell, Florida Legal Services Inc., Lake Worth, FL, for Comité De Apoyo A Los Trabajadores Agricolas, et al.

Geoffrey Forney, United States Department of Justice, Washington, DC, Judith A. Amorosa, U.S. Attorney's Office, Philadelphia, PA, for Thomas E. Perez, et al.

MEMORANDUM

LEGROME D. DAVIS, District Judge.

Plaintiffs sue for judicial review of certain actions, decisions, and regulations in regard to the agency's administration of wage benefits for foreign and United States workers under the “H–2B program,” Immigration and Nationality Act of 1952(INA), 8 U.S.C. §§ 1101(a)(15)(H)(ii)(b) (2014), and regulations promulgated thereunder, 8 C.F.R. § 214.2 and 20 C.F.R. Part 655, Subpart A. Plaintiff associations—Comité de Apoyo a los Trabajadores Agricolas, Pineros y Campesinos Unidos del Noroeste, the Northwest Forest Worker Center, formerly known as the Alliance of Forest Workers and Harvesters—sue on behalf of their members. Plaintiffs—Saul Arreguin Ruiz, Jesus Martin Sauceda Pineda, and Héctor Hernández Gomez—sue on their own behalf and as representatives of a putative class of H–2B workers.¹ Defendants are the Secretary of Labor, Thomas E. Perez, Department of Labor (DOL), and Assistant Secretary for Employment and Training Administration (ETA), Eric M. Seleznow.² Jurisdiction is 28 U.S.C. § 1331.

Here, the scope and limitations of review are defined by the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 –583, 701 –706, 801 –808, 3105, 3344, 6362, 7562. Chehazeh v. Att'y Gen. of U.S., 666 F.3d 118, 125 & n. 11 (3d Cir.2012). The APA “provides the statutory structure on which federal administrative law is built.”³ 1 Richard J. Pierce, Jr., Administrative Law Treatise, § 1.1 at 2 (5th ed.2010).

Plaintiffs (“CATA”) move for summary judgment (Doc. No. 17). Fed.R.Civ.P. 56. The motion challenges the decision by the Board of Alien Labor Certification Appeals (BALCA) in Islands Holdings, LLC, No. 2013–PWD–00002 (Dec. 3, 2013) (en banc ). Administrative Record (“AR”), 1–15; Pls. Ex. E (Doc. No. 17–2 at 58–75). That decision, it is asserted, should be held “unlawful and set aside” as not authorized by law and as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA.⁴ 5 U.S.C. § 706(2)(A).

In Island Holdings, BALCA reviewed three supplemental prevailing wage determinations (SPWDs) that had been issued by the DOL on May 6, 2013, to a Massachusetts employer, Island Holdings LLC. The SPWDs were issued under the April 24, 2013 Interim Final Rule (IFR). See Wage Methodology for the Temporary Non–Agricultural Employment H–2B Program, Part 2, 78 Fed.Reg. 24047, 24047–48 (Apr. 24, 2013) (codified at 8 C.F.R. § 214.2, 20 C.F.R. § 655.10(b)(2) ) (the “2013 IFR”). The 2013 IFR was promulgated to comply with this Court's March 21, 2013 Order, which permanently enjoined use of the “skill level” methodology for determining prevailing wages under 20 C.F.R. § 655.10(b) (2008) and vacated the text, “at the skill level,” from that subsection of the regulation. See Comité de Apoyo a los Trabajadores Agricolas, et al. v. Solis (“CATA I”), No. 09–240, 2010 WL 3431761 (E.D.Pa. Aug. 30, 2010) (Pollak, J.); Comité de Apoyo a los Trabajadores Agricolas, et al. v. Solis (“CATA II”), No. 09–240, 933 F.Supp.2d 700 (E.D.Pa.2013) (Davis, J.).

In October and November, 2012, the DOL approved the labor applications submitted by the employer, Island Holdings LLC. Also, the DOL determined the prevailing wages to be paid by that employer for valid periods of employment that extended into November, 2013. The prevailing wages were set under the 2008 H–2B regulation using 2008 wage rates. See Labor Certification Process, 73 Fed.Reg. 78020 (Dec. 19, 2008) (codified at 20 C.F.R., Part 655) (the “2008 Wage Rule”). However, the SPWDs issued on May 6, 2013, retroactively increased the prevailing wages to be paid by that employer. See Summary of 2012–2013 PWDs, AR 129. In Island Holdings, BALCA invalidated the SPWDs, ruling broadly that Defendant the Secretary of Labor's policies, rules, and procedures for issuing SPWDs to H–2B employers, as set forth in the preamble to the 2013 IFR, were invalid and unenforceable.

Importantly, BALCA ruled that Defendants lacked the authority to issue SPWDs in cases where the DOL has already approved an application for labor certification and determined a prevailing wage. Island Holdings , AR 11–14. In addition, BALCA ruled that Defendants lacked the authority to require H–2B employers to pay “the highest of the most recent prevailing wage that is or will be issued” to the employer, despite the employer's agreement on ETA Form 9142, Appendix B.1,⁵ to pay an adjusted supplementary prevailing wage rate. Id., AR 12–13.

Plaintiffs' position is that BALCA erred in so ruling and did so in excess of the authority delegated to it under the DOL's intra-agency review and appeal provisions.See 20 C.F.R. § 655.10(g) (Apr. 24, 2013); § 655.11(e), (h)(2)(ii) (Apr. 23, 2012); § 655.61(e) (Apr. 23, 2012), formerly codified at § 655.33. See also 29 C.F.R. § 18.58.⁶ Specifically, it is submitted that BALCA erred by declaring invalid and unenforceable:

(1) The requirement that employers whose H–2B temporary labor applications were certified prior to April 24, 2013, pay increased wages upon receipt of a supplemental prevailing wage determination calculated under the April 24, 2013 IFR.

(2) The promise made by every H–2B employer in the ETA Form 9142 Appendix B.1, as amended April 14, 2011, to pay the highest of the most recent prevailing wage that is or will be issued by the Department. Pls. Mot. ¶ 1 at 2 (Doc. No. 17).

Plaintiffs say that BALCA ruled in Island Holdings “on behalf of” Defendants. The intended meaning of that phrase is not so clear, however. The record shows only that BALCA en banc considered the SPWDs issued on May 6, 2013, to the employer, Island Holdings LLC. BALCA did so at the request of both parties. The DOL's Certifying Officer (CO) explained:

This, admittedly unprecedented, request[ ] is warranted because this appeal involves a matter of exceptional importance which could impact a significant number of additional cases and expose the Department to sanctions from a U.S. District Court.

CO's Request at 1, and BALCA's Order, dated 6/20/13, granting en banc review, Pls. Exs. D–1, D–2 (Doc. No. 17–2 at 51–57).

In this case, the parties' respective positions are closely aligned. Both sides agree that Island Holdings does not represent the legal or policy position of Defendant the Secretary of Labor as reflected in the preamble to the 2013 IFR. See 78 Fed.Reg. 24047, 24049, 24051–55 (Apr. 24, 2013). See also Pls. Reply at 1–2 (Doc. No. 47); Defs. Resp. at 2, 12–13, 16–17 (Doc. No. 31) (expressing agreement). For example, Defendants' position is:

The BALCA's Island Holdings decision represents a resolution of that individual case which is not subject to further administrative review ..., but the BALCA's decision does not represent the legal position of the Secretary of Labor.

Defs. Resp. at 12 (Doc. No. 31) (citing 20 C.F.R. § 655.11(e) (Apr. 23, 2012)). As to whether BALCA's rulings in Island Holdings are valid and should be applied by the DOL in future adjudications, apparently both sides would answer “no.” Moreover, it is not contested that Defendant the Secretary of Labor is authorized to make policy and law for the DOL, and that BALCA—which is composed of Administrative Law Judges who are subordinate agency employees—is not so empowered. Defs. Resp. at 12–13 (Doc. No. 31); Pls. Reply Br. at 1, 2 (Doc. No. 47) (“BALCA has no legal authority to review, let alone strike down, the regulations and policies of the Secretary of Labor.”). Neither side suggests that the Secretary is forever bound by Island Holdings as to future rulemaking and adjudications in the H–2B program.

Both sides propose the same remedy for resolution of this controversy—that this Court vacate BALCA's decision in Island Holdings, remanding that case to the DOL. The parties initially diverged as to the reasons proffered for vacating BALCA's decision in Island Holdings. However, they reached consensus⁷ on a narrow ground for decision suggested by Defendant the Secretary of Labor—that is, this Court's March 21, 2013 vacatur order issued in CATA II:

Because the Court's vacatur order required DOL to replace the invalid 2008 wage rates, the BALCA's decision allowing employers to continue using the vacated 2008 wage rates after the issuance of the [April 24, 2013] Interim Final Rule was contrary to this Court's order.

Defs. Resp. at 2, 13 (Doc. No. 31).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background and procedural history of this case have been set out in previous memoranda issued in related cases. See CATA I, No. 09–240, supra ; CATA II, No. 09–240, supra. See also La. Forestry Ass'n, Inc. v. Sec'y U.S. Dept. of Labor, 889 F.Supp.2d 711 (E.D.Pa.2012) (Davis, J.), aff'd, 745 F.3d 653 (3d Cir.2014). Only information most relevant to this motion for summary judgment is recited here.

A. Administrative Record

The parties agree that the record created before the agency as to the three SPWDs issued on May 6, 2013, to the employer, Island Holdings LLC, for respectively, housekeepers, cooks, and servers, comprises the administrative record here. See Def. Secretary's Notice, dated 2/13/14 (Doc. No. 34). See also SPWDs, dated 5/6/13, AR 44–54; id., Pls....