Comité De Apoyo Trabajadores Agricolas v. Perez

• Decision Date: 10 September 2014
• Docket Number: Civil Action No. 09–240.
• Citation: 45 F.Supp.3d 477
• 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

45 F.Supp.3d 477

COMITÉ DE APOYO A LOS TRABAJADORES AGRICOLAS, et al.

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

Civil Action No. 09–240.

United States District Court, E.D. Pennsylvania.

Signed Sept. 10, 2014.

Filed Sept. 11, 2014.

Arthur N. Read, Liz Maria Chacko, Friends of Farmworkers, Inc., Philadelphia, PA, Clermont L. Fraser, Raleigh, NC, Mary C. Bauer, Southern Poverty Law Center, Montgomery, AL, Meredith B. Stewart, New Orleans, LA, Michelle R. Lapointe, Southern Poverty Law Ctr., Atlanta, GA, Sarah Rempel Claassen, Centro De Los Derechos Del Migrante Inc., Baltimore, MD, D. Michael Dale, Northwest Workers' Justice Project, Portland, OR, Edward Tuddenham, Law Office of Edward Tuddenham, New York, NY, for Plaintiff.

Jessica W.P. D'Arrigo, U.S. Dept of Justice, Washington, DC, for Defendant.

MEMORANDUM

LEGROME D. DAVIS, District Judge.

Plaintiffs sue for judicial review of the agency's rules governing applications for the employment of foreign 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.¹ 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. Plaintiff Salvador Martinez Barrera sues on his own behalf.² Defendants are the Secretary of Labor, Hilda Solis (now Thomas E. Perez), the Department of Labor (DOL), Alexander J. Passantino, Acting Administrator of DOL's Wage and Hour Division, Secretary of Homeland Security, Janet Napolitano (now Jeh Johnson), and the Department of Homeland Security (DHS). See Fed.R.Civ.P. 25(d) (successor of a public officer who is a party in an official capacity, but ceases to hold office while the action is pending, is automatically substituted as a party). 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 (collectively, “CATA”) move to vacate regulations previously held invalid by this Court and remanded to the agency. See Order & Mem., dated August 30, 2010 (Doc. Nos. 80, 81); Comité de Apoyo a los Trabajadores Agricolas, et al. v. Solis, et al. (“CATA I”), No. 09–240, 2010 WL 3431761, at *8–16, *25–26 (E.D.Pa. Aug. 30, 2010) (Pollak, J.). In effect, the motion is tantamount to a petition for rulemaking. 5 U.S.C. §§ 553(e), 555(e) (procedural right to file for such relief).⁴ It aims at compelling Defendants to engage in rulemaking to fill regulatory gaps that would be created by the Court's grant of the requested vacatur. See Pls. Mot. (Doc. No. 194); Pls. Br. (Doc. No. 194–1 at 5, 12); Pls. Reply (Doc. No. 46 at 4, 15–16).

This Court's decision, dated August 30, 2010, invalidated four regulatory provisions governing applications by employers for certification of the employment of H–2B workers:

(1) 20 C.F.R. § 655.15(g), concerning when and how H–2B employers must contact unions as a potential source of domestic labor; (2) the portion of 20 C.F.R. § 655.4 defining “full time”; (3) the portion of 20 C.F.R. § 655.4 defining “job contractor”; and (4) 20 C.F.R. § 655.22(k), insofar as that provision permits the clients of job contractors to hire H–2B workers without submitting an application to the Department of Labor. The provisions described in (1)-(3) were remanded without vacatur; the provision described in (4) was vacated and remanded.

Comité de Apoyo a los Trabajadores Agricolas, et al. v. Solis, et al. (“CATA II”), No. 09–240, 2011 WL 2934995, *1 (E.D.Pa. July 20, 2011) (Pollak, J.). The invalidated provisions are contained in the H–2B regulation that was published in the Federal Register on December 19, 2008, and took effect on January 18, 2009. See “Labor Certification Process ...,” 73 Fed.Reg. 78,020 (Dec. 19, 2008), codified at 20 C.F.R., Part 655 (“2008 Regulation”). Each of the three provisions remanded without vacatur was ruled procedurally invalid because “DOL provided no rational explanation for its policy choices.” CATA I, 2010 WL 3431761, at *12–16, *25.

On remand, the agency amended the rules governing certification of the employment of H–2B workers, promulgating through notice and comment procedures a replacement regulation. See Notice of Proposed Rulemaking (“NPRM”), “Temporary Non–Agricultural Employment of H–2B Aliens in the United States,” 76 Fed.Reg. 15,130 (Mar. 18, 2011). See also final rule, “Temporary Non–Agricultural Employment of H–2B Aliens in the United States, Part II,” 77 Fed.Reg. 10,038 (Feb. 21, 2012) (“2012 Regulation”). According to Defendants, the 2012 Regulation “corrected the procedural defects” of each of the invalidated provisions described above. Defs. Resp., (Doc. No. 40 at 1) (citing 77 Fed.Reg. 10,038, 10,046 –47, 10,068–69, 10,088 (Feb. 21, 2012)). See also NPRM, 76 Fed.Reg. 15,135 –35, 15,151, 15,137–38 (Mar. 18, 2011). This changed the rules for contacting unions as a source for the recruitment of H–2B workers, and the definitions of full-time work and job contractor.⁵

On April 26, 2012, Bayou Lawn & Landscape Services v. Secretary of Labor (“Bayou I”), No. 12–cv–183 MCR (N.D.Fla.) (M. Casey Rogers, J.) (discussed infra ) granted the plaintiff H–2B employers' request for a preliminary injunction of the 2012 Regulation. At present, that injunction remains in effect, pending adjudication of the Bayou plaintiffs' claims for a permanent injunction of the 2012 Regulation. On May 16, 2012, the DOL notified the regulated public that Bayou enjoined the 2012 Regulation, and the 2008 Regulation has “continuing effectiveness ... until such time as further judicial or other action suspends or otherwise nullifies the order” in Bayou. DOL's Notice and Guidance, 77 Fed.Reg. 28,784 (May 16, 2012).

The instant motion to compel requests that the 2008 regulatory provisions concerning union recruitment, and the definitions of full-time work and job contractor—each of which was remanded without vacatur—be vacated now. See Pls. Br. (Doc. No. 194–1 at 6–11); Pls. Reply (Doc. No. 46 at 4, 15–16). The urgency of the request is said to arise from the serious adverse effect upon U.S. workers created by DOL's present use of the invalidated 2008 rules. For that reason, it is Plaintiffs' position, vacatur is appropriate because these rules are not only procedurally invalid but also, substantively flawed.

But Defendants correctly note that “vacatur would necessarily lead to a regulatory void.” Defs. Resp. (Doc. No. 40 at 15). And Plaintiffs effectively acknowledge that there are neither predecessor nor successor rules to replace the challenged 2008 rules. See Pls. Br. (Doc. No. 194–1 at 5, 12 (citing “lawful,” “viable alternatives,” and regulatory “tools to continue ... the H–2B program without interruption”—i.e., proposing joint rulemaking by DHS and DOL, even though DHS is not a party to this action)). Plaintiffs' strategy in requesting vacatur is clear:

U.S. workers should not have to continue laboring under invalid and substandard ... regulations while they await for the uncertain outcome of that case [Bayou ].

* * *

Realistically, vacatur of the ... rules will simply require DOL to issue new regulations .... Moreover, because DOL has already promulgated such regulations as part of the enjoined 2012 rule-making, issuing new regulations should not pose a major logistical problem for the Department.

* * *

[T]he Bayou litigation has been going on for nearly two years [now more than that] and is still in the district court .... [T]here is no clear end in sight to the Bayou litigation. It could, conceivably, go on for several more years before a final decision is issued by the 11th Circuit and, even then, there is no guarantee that the current injunction will be dissolved. U.S. workers should not have to wait indefinitely to be free from the adverse effects of the substandard 2008 ... regulations simply because DOL hopes that someday it will be successful in the Bayou litigation.

* * *

Given the relative simplicity of the issues involved, and the 2012 rule-making the Department has already completed on these very issues, it should not be difficult to formulate substitute rules in short order.

Pls. Reply (Doc. No. 46 at 3, 4 & n. 3, 15–16). Vacatur of the challenged 2008 regulatory provisions is but the first step towards the preferred remedy—that is, expedited rulemaking now as prescribed by Plaintiffs.⁶

Defendants respond that “vacatur is either unnecessary or harmful” for several reasons. Defs. Resp. (Doc. No. 40 at 2–3). In addition, they request that the motion to compel be denied in deference to the agency's and the government's ongoing efforts to implement the 2012 Regulation by actively defending it in Bayou. Denial of the motion, they submit, would permit the agency to “continue pursuing its legal defense of the [2012] replacement rule” and the government to “continue[ ] to defend the comprehensive [2012] rule and DOL's authority to issue legislative rules in the H–2B program.” Id. at 2, 6.

I. THE PARTIES' CONTENTIONS

Specifically, the parties' respective positions on the demerits of the challenged 2008 rules, and the merits of the improved 2012 rules, are not so far apart. As to the participation of job contractors in the H–2B program,⁷ both sides agree that Judge Pollock vacated that portion of the 2008 Regulation “insofar as it permits only job contractors, and not their clients to file certification applications.”⁸ CATA I, 2010 WL 3431761, at *15–16, *25, *27 (vacating that portion of 20 C.F.R. § 655.22(k)...