American Federation of Labor and Congress of Indus. Organizations (AFL-CIO) v. Dole
| Decision Date | 11 January 1991 |
| Docket Number | AFL-CIO,90-5287 and 90-5289,Nos. 90-5285,s. 90-5285 |
| Citation | 923 F.2d 182 |
| Parties | AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (), et al. v. Elizabeth H. DOLE, Secretary of Labor, et al. National Council of Agricultural Employers, Appellants. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (), et al. v. Elizabeth H. DOLE, Secretary of Labor, et al., Appellants, National Council of Agricultural Employers. AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS (), et al. v. Elizabeth H. DOLE, Secretary of Labor, et al. American Farm Bureau Federation, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia.
Drake S. Cutini, Attorney, Dept. of Labor, of the Bar of the Supreme Court of Kentucky, pro hac vice, by special leave of the Court, with whom Harry L. Sheinfeld, Atty., Dept. of Labor, Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Michael Jay Singer and John S. Koppel, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellants Elizabeth H. Dole, Secretary, Dept. of Labor, et al.
John M. Simpson, with whom Robert A. Burgoyne, Washington, D.C., was on the brief, for appellant Nat. Council of Agr. Employers.
Kathryn A. Oberly, Michael F. Rosenblum and Patricia A. McCoy, Washington, D.C., were on the brief, for appellant American Farm Bureau Federation.
Shelley Davis, with whom Garry G. Geffert and David M. Silberman, Washington, D.C., were on the brief, for appellees.
Before RUTH BADER GINSBURG, SILBERMAN, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
We consider for the second time the Department of Labor's new methodology for computing the adverse effect wage rate ("AEWR"), which is the minimum wage that employers who wish to hire aliens as temporary agricultural workers must offer American and foreign workers. The Department appeals the district court judgment rejecting its final rule adopting this new methodology. Because we find that the Department has adequately explained its change in regulatory policy and that its new policy is within statutory authorization, we reverse.
Although the Department had, under the Immigration and Naturalization Act of 1952 ("INA"), long issued regulations which set forth the minimum wage at which foreign agricultural workers could be employed, after the passage of the Im migration Reform and Control Act of 1986 ("IRCA"), the Department took a new tack. It ended its policy of enhancing the minimum wage to compensate for past wage depression, choosing instead to base the minimum wage rate on the previous year's average hourly agricultural wage. The AFL-CIO and other farmworker representatives ("appellees" or "farmworkers") challenged the new regulations, which reduced the minimum wage by an average of 20 percent from that calculated under the old method, as failing to carry out the Department's statutory mandate under IRCA of ensuring that domestic wages are not "adversely affected" by foreign labor. 8 U.S.C. Sec. 1188(a) (1988).
Under INA, the Department established the AEWR--a minimum wage that all employers who wished to import alien workers must first offer to qualified U.S. workers, and then, if the job remained unfilled, to foreign workers. See 8 C.F.R. Sec. 214(2)(h)(3) (1986). The methodology used to compute the AEWR was designed to offset both future and past adverse effect from the addition of legal and illegal foreign labor to the U.S. labor supply. 1 The wage floor is obviously designed to prevent cheaper foreign labor from undercutting domestic wages in the future. By adding a factor calculated to offset the supposed degree to which past legal and illegal additions to the work force had depressed agricultural wages, DOL also intended that the AEWR "compensate" domestic farmworkers for what might be thought to be past failures to protect the wage scale.
Congress expressly incorporated the prior regulatory requirement that employing foreign workers would not "adversely affect the wages and working conditions of workers in the United States similarly employed," 8 C.F.R. Sec. 214(2)(h)(3) (1986), as part of IRCA's amendments of INA governing temporary foreign worker (or H-2A) visas. See 8 U.S.C. Sec. 1188(a). 2 Congress did not, however, further define adverse effect and left it in the Department's discretion how to ensure that the importation of farmworkers met the statutory requirements. The Department chose to protect domestic workers' interests, as it had done under INA, through its longstanding AEWR program, but it modified the program in light of IRCA. 3
Since IRCA was primarily designed to reduce illegal immigration, the Department thought it would be necessary and appropriate to ease temporary legal entry. Accordingly, it adopted a new, simpler methodology in which the adverse effect wage rate would be the previous year's annual regional average hourly wage for agricultural workers (the USDA average wage) with no added adjustments. 4 See 52 Fed.Reg. 20,496, 20,502-505 (1987) () (interim final rule) (June 1, 1987).
Appellees challenged the new regulations as violating an alleged statutory mandate to compensate for past wage depression and, furthermore, arbitrarily changing the methodology without adequate explanation. The district court held that the regulations were illegal "because the particular method chosen will not carry out the Secretary's statutory responsibility to address the depressed wages of American workers." AFL-CIO v. Brock, 668 F.Supp. 31, 39 (D.D.C.1987). On appeal, this court reversed, AFL-CIO v. Brock, 835 F.2d 912, 913 n. 2 (D.C.Cir.1987) ("Brock "), holding that the statute neither Id. at 917. But because the Department had not adequately explained why it was altering its method of computing the AEWR, the court remanded for a reasoned explanation, noting that the "[i]nability to secure persuasive data as to any effects of past wage depression might indeed justify ending the enhancement." Id. at 919.
The interim rule was mooted by the Department's publication of the final rule, in which, after notice and comment, the Department adopted the same methodology. See Final Rule, 54 Fed.Reg. 28,037. Once again the farmworkers sought to invalidate the rule, and once again the district court agreed, holding that "where a policy has been in place for many years an agency must rely on something more than admittedly inconclusive data if it chooses to vary its course." AFL-CIO v. Dole, 745 F.Supp. 18, 22 (D.D.C.1990) ("Mem. Op."). The government appealed, asserting that the choice of methodology was within its discretion. We granted a stay of the district court's order which enjoined implementation of the new rule and reinstituted the pre-June, 1987 methodology.
DOL summarized its rationale for changing its approach as follows:
(1) Best available studies fail to provide evidence of any adverse effect (much less any quantification of such effect) at State/regional/national levels; this lack of evidence of adverse effect is supported by theoretical analysis; ... (2) any localized adverse effects are probably not large enough to show up in USDA series; (3) thus, DOL has no basis and no right to impose an arbitrary enhancement factor; (4) to the extent there are localized pockets [of depressed] wage rates [which] are below the State/regional average, requiring the average as a minimum will "cure" this adverse effect;
Final Rule, 54 Fed.Reg. at 28,047 (1989) (Analysis of Farmworker Comments).
The evidence presented to the Department showed that the data on wage depression was, at best, equivocal. See id. at 28,043-44. 5 It could be observed, if at all, only at the local, crop-specific level. See id. at 28,042-43. Some economists, moreover, challenged the underlying hypothesis that increasing alien labor depresses wages; given "the great elasticity of demand for labor, particularly in the highly internationally competitive agricultural markets of the 1980's ... wage rates would have been about the same, with far less production and employment." Id. at 28,047.
Even if domestic wage depression resulted from the importation of foreign farmworkers, studies showed that it could not be precisely quantified at the aggregate level at which regulation is administratively feasible. DOL's review of its past methodologies for adjusting for wage depression revealed that there is no correlation between its past upward adjustments to the AEWR and any putative level of wage depression. See id. at 28,041, 28,044. The Department concluded that, without adequate measurement techniques, its previous attempts to compensate for past wage depression had been no more than shots in the dark and it could not justify continuing to augment wages by an arbitrary factor. Continued use of the old methodology would create severe wage disparities and impede IRCA's goal of replacing illegal aliens with documented foreign workers.
The Department examined and rejected the alternative methodologies suggested by both the growers and the farmworkers. The growers' proffered option of using the prevailing wage (which would be lower than the AEWR) would not, in the Department's view, offset the crop-specific wage depression that had been shown to exist; continuing to employ the old methodology, as urged by appellees, would arbitrarily perpetuate wage anomalies and create artificially high wages that could cost jobs in the long run.
The Department concluded that the USDA data series...
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