American Federation of Labor and Congress of Indus. Organizations (AFL-CIO) v. Dole, AFL-CIO

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore RUTH BADER GINSBURG, SILBERMAN, and SENTELLE; SILBERMAN
Citation923 F.2d 182
PartiesAMERICAN 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.
Docket NumberAFL-CIO,90-5287 and 90-5289,Nos. 90-5285
Decision Date11 January 1991

Page 182

923 F.2d 182
287 U.S.App.D.C. 359
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL
ORGANIZATIONS (AFL-CIO), 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 (AFL-CIO), 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 (AFL-CIO), et al.
v.
Elizabeth H. DOLE, Secretary of Labor, et al.
American Farm Bureau Federation, Appellant.
Nos. 90-5285, 90-5287 and 90-5289.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 21, 1990.
Decided Jan. 11, 1991.

Page 183

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.

SILBERMAN, Circuit Judge:

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.

I.

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

Page 184

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) (to be codi

Page 185

fied at 20 C.F.R. Secs. 654 & 655) (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 "explicitly [n]or implicitly mandates the Department's AEWR policy.... [N]either the Department's former policy of offsetting for past depression nor its present policy of ignoring this adverse effect, is statutorily required." 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...

To continue reading

Request your trial
9 practice notes
  • Part II
    • United States
    • Federal Register December 18, 2008
    • December 18, 2008
    ...and to use the USDA survey to measure average agricultural wage rates, were challenged but were upheld by the DC Circuit. AFL-CIO v. Dole, 923 F.2d 182 (DC Cir. The Court noted that there is no ``statutory requirement to adjust for past wage depression,'' and that in determining appropriate......
  • Hispanic Affairs Project v. Acosta, Civil Action No. 15–cv–01562 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2017
    ...on ETA data, as reflected in Mr. Tuddenham's calculation. See Am. Fed'n of Labor and Cong. of Indus. Orgs. ("AFL–CIO") v. Dole , 923 F.2d 182, 187 (D.C. Cir. 1991) (affirming DOL's AEWR methodology because "[DOL] chose, in the face of imprecise and inconclusive data, the USDA......
  • United Farm Workers v. U.S. Dep't of Labor, No. 1:20-cv-01690-DAD-JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 23, 2020
    ...DOL's judgment and expertise to strike the balance." See Am. Fed'n of Labor & Cong. of Indus. Organizations (AFL-CIO) v. Dole , 923 F.2d 182, 187 (D.C. Cir. 1991). Defendants contend that they strike that balance by disaggregating the wage rate paid to farmworkers of different occu......
  • Overdevest Nurseries, L.P. v. Scalia, Civil Action No. 18-1347 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 15, 2020
    ...of H-2A workers meets the statutory standard[,]" id. at 21 (citing Am. Fed. of Labor & Cong. of Indus. Orgs. (AFL-CIO) v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991), and United Farm Workers, 697 F. Supp. 2d at 9 )." Section 1188(a)(1) establishes the INA's general mission; Congr......
  • Request a trial to view additional results
8 cases
  • Hispanic Affairs Project v. Acosta, Civil Action No. 15–cv–01562 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • July 7, 2017
    ...on ETA data, as reflected in Mr. Tuddenham's calculation. See Am. Fed'n of Labor and Cong. of Indus. Orgs. ("AFL–CIO") v. Dole , 923 F.2d 182, 187 (D.C. Cir. 1991) (affirming DOL's AEWR methodology because "[DOL] chose, in the face of imprecise and inconclusive data, the USDA......
  • United Farm Workers v. U.S. Dep't of Labor, No. 1:20-cv-01690-DAD-JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 23, 2020
    ...DOL's judgment and expertise to strike the balance." See Am. Fed'n of Labor & Cong. of Indus. Organizations (AFL-CIO) v. Dole , 923 F.2d 182, 187 (D.C. Cir. 1991). Defendants contend that they strike that balance by disaggregating the wage rate paid to farmworkers of different occu......
  • Overdevest Nurseries, L.P. v. Scalia, Civil Action No. 18-1347 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 15, 2020
    ...of H-2A workers meets the statutory standard[,]" id. at 21 (citing Am. Fed. of Labor & Cong. of Indus. Orgs. (AFL-CIO) v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1991), and United Farm Workers, 697 F. Supp. 2d at 9 )." Section 1188(a)(1) establishes the INA's general mission; Congr......
  • United Farm Workers v. Solis, Civil Action No. 09-0062 (RMU).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 22, 2010
    ...ensure that the importation of farmworkers met the statutory requirements." Am. Fed'n of Labor & Cong. of Indus. Orgs. v. Dole, 923 F.2d 182, 184 (D.C.Cir.1991). Moreover, although the plaintiffs state that the phrase "similarly employed" has a precise statutory meaning l......
  • Request a trial to view additional results
1 provisions
  • Part II
    • United States
    • Federal Register December 18, 2008
    • December 18, 2008
    ...and to use the USDA survey to measure average agricultural wage rates, were challenged but were upheld by the DC Circuit. AFL-CIO v. Dole, 923 F.2d 182 (DC Cir. The Court noted that there is no ``statutory requirement to adjust for past wage depression,'' and that in determining appropriate......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT