901 F.3d 378 (D.C. Cir. 2018), 17-5202, Hispanic Affairs Project v. Acosta

Docket Nº17-5202
Citation901 F.3d 378
Opinion JudgeMillett, Circuit Judge:
Party NameHISPANIC AFFAIRS PROJECT, et al., Appellants v. R. Alexander ACOSTA, in his official capacity as United States Secretary of Labor, et al., Appellees
AttorneyDermot Lynch, argued the cause for appellants. With him on the briefs was William W. Taylor, III, Washington, DC. Heather Sokolower, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Erez Reuveni, Assistant Director. Christopher J. Schulte, Tamp...
Judge PanelBefore: Garland, Chief Judge, and Srinivasan and Millett, Circuit Judges.
Case DateAugust 17, 2018
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (District of Columbia)

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901 F.3d 378 (D.C. Cir. 2018)

HISPANIC AFFAIRS PROJECT, et al., Appellants

v.

R. Alexander ACOSTA, in his official capacity as United States Secretary of Labor, et al., Appellees

No. 17-5202

United States Court of Appeals, District of Columbia Circuit

August 17, 2018

Argued May 11, 2018

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Appeal from the United States District Court for the District of Columbia, (No. 1:15-cv-01562)

Dermot Lynch, argued the cause for appellants. With him on the briefs was William W. Taylor, III, Washington, DC.

Heather Sokolower, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Erez Reuveni, Assistant Director.

Christopher J. Schulte, Tampa, FL, was on the brief for intervenors aligned with defendants-appellees, Western Range Association and Mountain Plains Agricultural Service.

Before: Garland, Chief Judge, and Srinivasan and Millett, Circuit Judges.

OPINION

Millett, Circuit Judge:

For all the pastoral images it may invoke, tending to a flock is no easy task. Livestock herders often spend months at a time living in makeshift campsites on a remote range, on call twenty-four hours a day to protect the herd. Given the spartan and isolated working conditions, the sheep and goat industries have become almost wholly dependent on foreign labor to work as herders. Many of these foreign workers come to the United States on what are known as H-2A visas, which allow nonimmigrants to enter to perform certain agricultural work. By law, H-2A visas may issue only if the employer’s need for the worker is temporary or seasonal. But time and again, federal agencies have allowed ranchers to employ foreign herders on H-2A visas for year-round, non-seasonal work that lasts up to three years at a stretch.

The Hispanic Affairs Project, a membership organization of herders, and four individual herders challenge those agencies’ 364-day certification period for H-2A visas as unmoored from the reality of herders’ employment, and the agencies’ allegedly persistent pattern of routinely extending "temporary" visas to meet ranchers’ anything-but-temporary need for herders. They also challenge a number of additional regulatory measures, including the minimum wage required for herders. We hold that the challenge to the policies pertaining to the certification and automatic extension of H-2A visas can go forward, but we otherwise affirm the district court’s dismissal of the plaintiffs’ claims.

I

A

Dubbed "H-2A," Section 1101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act defines qualifying "nonimmigrant[s]" as those "having a residence in a foreign country" with "no intention of abandoning [it]," and who come to the United States "to perform agricultural labor or services * * * of a temporary or seasonal nature. " 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (emphasis added). H-2A-visa holders have no independent route to apply for permanent residency or legal citizenship. Instead, they are dependent on their visa sponsors to lawfully stay in and return to the United States for work. See 20 C.F.R. § 656.16 (only employers can opt to apply for a permanent labor certification for herders, which can lead to residency and citizenship).

The Department of Homeland Security and the Department of Labor are jointly responsible for administering the H-2A program. To obtain an H-2A visa to bring in foreign workers, an employer must first submit to the Labor Department an Application for Temporary Employment Certification. In that Application, the employer

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must establish that: (i) the temporary foreign worker will "perform agricultural labor or services of a temporary or seasonal nature," 20 C.F.R. § 655.103; (ii) there are no domestic workers available that are qualified to fill the position; and (iii) hiring the foreign workers would not "adversely affect the wages and working conditions of workers in the [United States] similarly employed," id. § 655.100; 8 U.S.C. § 188(a)(1). If the Labor Department finds that those requirements are met, it may issue the Certification.

The torch is then passed to the Department of Homeland Security, which makes the final decision on whether or not to grant the employer’s H-2A petition. 8 U.S.C. § 1184(c)(1). To obtain that final approval, the H-2A petition must establish to Homeland Security’s satisfaction that the proposed employment, among other things, is of a "temporary or seasonal nature," 8 C.F.R. § 214.2(h)(5)(iv)(A).1

Homeland Security regulations define "temporary" as "where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year ." 8 C.F.R. § 214.2(h)(5)(iv)(A) (emphasis added). Homeland Security regulations emphasize that the Labor Department’s earlier finding that the employment would be temporary is "normally," but not necessarily, "sufficient[.]" Id. § 214.2(h)(5)(iv)(B). Homeland Security could take exception to that prior finding if "substantial evidence" shows that "the employment is not temporary or seasonal." Id.

Once an H-2A visa issues, the immigrant worker can stay for the duration of the "validity of the labor certification or for a period of up to one year," but in no event can the stay "exceed three years." 8 C.F.R. § 214.2(h)(15)(ii)(C). As it turns out, in practice, most herders stay and work for just short of three years, spend three months in their home country, and then return to the United States on another H-2A visa. See Second Amended Complaint, Hispanic Affairs Project v. Perez, No. 15-1562 (D.D.C. Dec. 22, 2015), ECF No. 58 at ¶ 51 ("Second Am. Compl."); J.A. 776 (ranching employer referring to herders’ "three-year contracts on an H-2A visa"); J.A. 796 (another employer relating that the H-2A program permits herders to "come to the U.S. for up to 3 years and then return to their home country for a brief period of time").

B

To protect domestic jobs, the Department of Labor has promulgated regulations that set minimum wages and working conditions for H-2A workers and their domestic counterparts. Generally, the Labor Department requires the employers of H-2A workers to pay those workers the highest wage set by (i) the Adverse Effect Wage Rate, which is determined by Labor "to ensure that the wages of similarly employed U.S. workers will not be adversely affected[,]" 20 C.F.R. § 655.1300; (ii) "the prevailing hourly wage or piece rate; [ (iii) ] the agreed-upon collective bargaining wage; or [ (iv) ] the Federal or State minimum wage," id. § 655.120(a).

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But employers of open-range herders, such as sheep and goat herders, are exempt from that minimum-wage requirement due to the unique characteristics of the position, which include "spending extended periods" of time "in isolated areas and being on call twenty-four hours a day, seven days a week to protect livestock." Mendoza v. Perez, 754 F.3d 1002, 1009 (D.C. Cir. 2014). In 2011, the Secretary issued a Training Employment Guidance Letter that formalized the exemption of herder employers from the regulation’s prescribed wage rates. The 2011 Guidance Letter adopted instead a different method for calculating the prevailing wage, setting a lower floor for what employers must pay H-2A open-range herders.

In an earlier case challenging the procedural validity of the 2011 Guidance Letter, we held that the Administrative Procedure Act required that the Guidance Letter’s prescriptive content be promulgated through the notice-and-comment process, 5 U.S.C. § 553. See Mendoza, 754 F.3d at 1008-1009, 1024-1025. The case was then remanded, and the district court ruled that the invalidated 2011 Guidance Letter could remain in effect while a new rule was properly promulgated. ORDER, Mendoza v. Perez, No. 11-1790 (D.D.C. Oct. 31, 2014), ECF No. 54 at 1.

The Labor Department then promulgated a new rule, through notice and comment, that took effect on November 16, 2015. 80 Fed.Reg. 62,958 (Oct. 16, 2015). The 2015 Rule laid out a number of regulations governing the employment of seasonal and temporary herders, including minimum-wage standards. Id . The 2015 Rule applies not only to goat and sheep herders, but also to open-range herding of other livestock, such as cattle. 80 Fed.Reg. at 62,962.

C

The Hispanic Affairs Project is a Colorado-based non-profit advocacy organization whose members consist of both United States resident and nonimmigrant "current H-2A shepherds who have labored under the 2011 * * * and 2015 Rule, and former herders who would legally work as herders again but for the low wages earned by workers in this industry." Second Am. Compl. ¶ 4. The Project and four individual shepherds (collectively, "the Project") filed suit against the Departments of Labor and Homeland Security under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. As relevant here, the Project sought a declaratory judgment that the 2011 Training and Employment Guidance Letter was substantively invalid and challenged the agencies’ practice of automatically extending visas for up to three years as arbitrary and capricious for failure to comply with the statutory obligation to limit H-2A visas to "temporary" work. The Project also contends that the minimum wage set for herders by the 2015 Rule is unjustifiably low.2

The district court dismissed claims related to the already-vacated 2011 Guidance Letter for lack of standing because the plaintiffs’ injuries were not redressable by a favorable decision from the court. See Hispanic Affairs Project v. Perez, 206 F.Supp.3d 348, 366 (D.D.C. 2016). The district court later granted summary judgment...

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