Alpha K9 Pet Servs. v. Johnson
| Decision Date | 21 March 2016 |
| Docket Number | CIVIL ACTION NO. B-15-095 |
| Citation | 171 F.Supp.3d 568 |
| Parties | Alpha K9 Pet Services, et al., Plaintiff, v. Jeh Johnson, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Jaime Arturo Saenz, Lecia L. Chaney, Carla Marie Saenz, Colvin, Chaney, Saenz & Rodriguez, LLP, Brownsville, TX, for Plaintiff.
Aaron Steven Goldsmith, Glenn Matthew Girdharry, Sarah S. Wilson, US Department of Justice, Washington, DC, for Defendants.
Andrew S. Hanen
On February 3, 2016, the United States Magistrate Judge filed a Report and Recommendation [Doc. No. 24]. No objections have been lodged by either side and the time for doing so has expired.
Having reviewed the Report and Recommendation for plain error and having found none, it is the opinion of the Court that the Magistrate Judge's Report and Recommendation is hereby partially adopted. The Court, without expressing an opinion as to its correctness, does not adopt the discussion regarding the need for notice and comment. This matter may be fully disposed of without the necessity of reaching that issue. Therefore, the motion to dismiss [Doc. No. 9] filed by the Defendants is granted, and the case is dismissed without prejudice for lack of standing, or, alternatively, with prejudice for failure to state a claim upon which relief can be granted.
v.
JEH JOHNSON, ET AL., Defendants.
On May 22, 2015, twenty-four Plaintiffs joined together and filed a single complaint against the following defendants: Secretary of Homeland Security Jeh J. Johnson; United States Citizenship and Immigration Services Director León Rodríguez; Secretary of Labor Thomas E. Perez; Secretary of State John F. Kerry—all in their official capacities2 —as well as the Department of Homeland Security (“DHS”), the Department of Labor (“DOL”), and the State Department. Dkt. No. 1. The complaint alleges that Defendants acted unlawfully by refusing to adjudicate and approve Plaintiffs' H–2B visa petitions during the 2015 fiscal year. Id. It also alleged that DHS acted unlawfully by deleting certain regulations without first allowing notice and comment regarding the deletion.
On August 13, 2015, Defendants filed a motion to dismiss, pursuant to FED. R. CIV. P . 12(b)(1) and 12(b)(6)
. Dkt. No. 9. That motion is currently pending before the Court. Plaintiffs filed a response—Dkt. No. 16—and Defendants filed a reply. Dkt. No. 17.
After reviewing the record and the relevant case law, the Court RECOMMENDS that the motion to dismiss be granted. Plaintiffs lack standing to pursue their claims and even if standing otherwise existed, they have failed to state a claim upon which relief can be granted.
As with all things related to immigration in this country, the issues raised by Plaintiffs are neither clear nor simple. To better understand Plaintiffs' claims, the Court first sets out the temporary visa system and its regulatory framework. After that, the Court will turn to resolution of Plaintiffs' claims.
Federal law permits a person who has “a residence in a foreign country which he has no intention of abandoning” to “temporarily” work in the United States, so long as “unemployed persons capable of performing such service or labor cannot be found in this country.” 8 U.S.C. § 1101(a)(15)(H)(ii)(b)
. The visas that are issued to conduct such work are colloquially known as H–2B visas. The Government may only issue H–2B visas to persons “whose employment is not adversely affecting the wages and working conditions of United States workers.” 8 C.F.R. § 214.2(h)(6)(I). In this case, Plaintiffs were seeking workers in low-skilled labor positions, such as landscapers and carnival workers, who have historically been the recipients of H–2B visas.
Congress charged the Attorney General, “after consultation with appropriate agencies of the Government,” with determining which aliens should be issued H–2B visas. 8 U.S.C. § 1184(c)(1)
. The Attorney General lawfully delegated that authority to the Immigration and Naturalization Service (“INS”). 8 U.S.C. § 1103(a)(4) (1996) (amended 2002). In 2002, Congress abolished the INS and charged the newly-formed Department of Homeland Security (“DHS”) with determining which aliens should be granted H–2B visas. 6 U.S.C. § 202(4).
A petitioner—who is defined as “a United States employer, a United States agent, or a foreign employer filing through a United States agent”—must file for a “temporary labor certification” as part of the H–2B visa process. 8 C.F.R. § 214.2(h)(6)(iii)(A)–(B)
. This temporary labor certification is issued by the Department of Labor (“DOL”). Id. “The labor certification shall be advice to [DHS] 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.” Id.
An approved petition for H–2B visas is valid “for a period of up to one year.” 8 C.F.R. § 214.2(h)(9)(iii)(B)
. Congress has capped the number of H–2B visas at 66,000 for a fiscal year. 8 U.S.C. § 1184(g)(1)(B). Congress has further mandated that a maximum of 33,000 visas be allocated for workers whose work begins in the first half of the fiscal year, which runs from October to March. 8 U.S.C. § 1184(g)(10). The remaining 33,000 visas are allocated for the workers who begin their work in the second half of the fiscal year. Id. Each petitioner must apply yearly for H–2B visas.
As part of the H–2B visa process, the petitioner is required to provide either (1) a certification from DOL stating that there are no qualified U.S. workers and that U.S. wages and employment would not be affected; or (2) 8 C.F.R. § 214.2(h)(6)(iv)(A)(1)–(2)
.
Under earlier regulations, if DOL issued the latter response—that a certification cannot be made—then the petitioner could file a “countervailing evidence” petition in writing with DHS. 8 C.F.R. § 214.2(h)(6)(iv)(D) (2007)
. The countervailing evidence “must show that qualified workers in the United States are not available, and that the terms and conditions of employment are consistent with the nature of the occupation, activity, and industry in the United States.” Id. In other words, the employer was required to seek a certification from DOL, but if that certification was not issued, the employer was afforded the opportunity to establish directly to DHS that the employer met the required standard, despite DOL's failure to issue the certification.
In 2008, DHS issued a rule which stated that it would not process any petitions that did not include a temporary labor certification from DOL. 73 Fed.Reg. at 78,127, 78,129 (December 19, 2008)
. DHS did not include any method by which a petitioner could submit a countervailing evidence petition. See 8 C.F.R. 214.2(h)(6)(iii)(C) (). On that same date, DOL issued rules outlining how petitioners could present evidence to DOL and how petitioners could appeal—within DOL—DOL's initial decision denying the required certification. 73 Fed.Reg. 78,020 (Dec. 19, 2008) (hereafter “2008 DOL rules”).
The 2008 DHS regulations, however, still included a section that discussed the use of countervailing evidence petitions. 8 C.F.R. § 214.2(h)(9)(iii)(B)(2) (2009)
(hereafter “countervailing evidence provision”). This section, which was contained in earlier versions of the regulation, stated that, “[i]f a petition is submitted containing a notice from the Secretary of Labor ... that certification cannot be made, and is not accompanied by countervailing evidence, the petitioner shall be informed that he or she may submit the countervailing evidence in accordance with paragraphs (h)(6)(iii)(E) and (h)(6)(iv)(D) of this section.” Id. Despite the language apparently permitting the submission of countervailing evidence, paragraphs (h)(6)(iii)(E) and (h)(6)(iv)(D) made no mention of countervailing evidence petitions. See 8 C.F.R. § 214.2(h)(6)(iii)(E) () & 8 C.F.R. § 214.2 (h)(6)(iv)(D) (). Thus, there appeared to be a disconnect between the countervailing evidence provision and the remainder of the regulation.
In 2012, DOL issued additional rules concerning H–2B certifications. Among those rules were additional protections for U.S. workers (such as requiring that U.S. workers who perform the same tasks as H–2B visa workers for the same employer receive the same wages and benefits as the H–2B workers). Temporary Non–Agricultural Employment of H–2B Aliens in the United States, 77 Fed.Reg. 10,038 (Feb. 21, 2012)
(hereafter “2012 DOL rules”).
In December 2014, a district court in the Northern District of Florida held that the 2012 DOL rules were invalid because only DHS has rulemaking authority over the H–2B visa program. Bayou Lawn & Landscape Servs. v. Perez, 81 F.Supp.3d 1291, 1292 (N.D.Fla.2014)
vacated and remanded sub nom.
Bayou Lawn & Landscape Servs. v. Sec'y, U.S. Dep't of Labor, 621 Fed.Appx. 620 (11th Cir.2015). The district court enjoined DOL from enforcing the 2012 rules. Id.3
On March 4, 2015, that same district court—in a separate case—enjoined DOL from enforcing the 2008 DOL rules, finding that DOL lacked statutory authority to enact such regulations. Perez v. Perez, No. 3:14–cv–682, (N.D.Fla. Mar. 4, 2015) (hereafter “Perez ”)....
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