Hispanic Affairs Project v. Perez

• Decision Date: 09 September 2016
• Docket Number: Civil Action No. 15-cv-01562 (BAH)
• Parties: HISPANIC AFFAIRS PROJECT, et al., Plaintiffs, v. Thomas E. PEREZ, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants.
• Court: U.S. District Court — District of Columbia

206 F.Supp.3d 348

HISPANIC AFFAIRS PROJECT, et al., Plaintiffs,

v.Thomas E. PEREZ, in his official capacity as Secretary of U.S. Department of Labor, et al., Defendants.

Civil Action No. 15-cv-01562 (BAH)

United States District Court, District of Columbia.

Signed September 9, 2016

Alexander Hood, Dermot Lynch, Nina E. DiSalvo, Towards Justice, Denver, CO, for Plaintiffs.

Glenn M. Girdharry, Erez Reuveni, United States Department of Justice, Christopher J. Schulte, CJ Lake, LLC, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiffs—an American former sheepherder, two foreign sheepherders currently employed in the United States on temporary H-2A visas, one former H-2A herder who intends to return to the United States to work as a herder on an H-2A visa, and a nonprofit membership organization for Hispanic immigrant workers, Second Amended Compl. ("SAC") ¶¶ 4–8, ECF No. 58; Pls.' Notice Regarding Pl. John Doe, ECF No. 81—initially filed this lawsuit, on August 18, 2015, against the United States Secretary of Labor, the Department of Labor ("DOL"), and DOL's Assistant Secretary of Employment and Training Administration (collectively, "DOL Defendants"), challenging the DOL's application of two administrative rules set out in Training and Employment Guidance Letters ("TEGLs") issued in 2011. See generally Compl., ECF No. 2; see also Mendoza v. Perez , 754 F.3d 1002, 1024 (D.C.Cir.2014). The 2011 TEGLs provided special procedures for hiring foreign temporary workers on general agricultural H-2A visas to work as cattle, goat, and sheepherders on the open range on terms intended to avoid adversely affecting the wages and working conditions of U.S. workers similarly employed.

At the time of filing the instant lawsuit, the 2011 TEGLs had already been held invalid in the Mendoza litigation and were operating on borrowed time, pending the effective date of a superseding rule, pursuant to a remedial order entered with the agreement of all parties in the Mendoza litigation to avoid disruption in the industry. See Mendoza v. Perez , 72 F.Supp.3d 168, 175 (D.D.C.2014) (" Remedial Order"). Indeed, less than three months after the instant suit was filed, the 2011 TEGLs were superseded by a new 2015 rule, made effective on November 16, 2015. See Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States ("2015 Rule"), 80 Fed. Reg. 62,958 (Oct. 16, 2015) (codified at 20 C.F.R. § 655).

Thereafter, the plaintiffs amended their complaint twice, adding claims as well as defendants, including two federal government defendants, the United States Secretary of Homeland Security and the Department of Homeland Security ("DHS") (collectively with original defendants, "Federal Defendants"), and two private defendants, the Western Range Association ("WRA") and the Mountain Plains Agricultural Service ("MPAS") (collectively, "Association Defendants"), who are alleged to be joint employers of sheepherders subject to the superseded 2011 TEGLS and to the new 2015 Rule. SAC ¶¶ 13–17. The operative complaint now asserts seven claims against the Federal Defendants, challenging DOL's application of the superseded 2011 TEGLs and the substance of the new 2015 Rule, and two additional claims against the Association Defendants, seeking back pay under both the 2011 TEGLs and 2015 Rule, which administrative rules the plaintiffs allege are invalid, thereby entitling the foreign sheepherders "to the difference between the unenforceable wage term and a reasonable wage." Id. ¶¶ 103–26.

Pending before the Court are the Federal Defendants' motion to dismiss and the Association Defendants' multiple motions to dismiss, strike, sever, transfer venue, and reconsider the order denying their motion to disallow one of the plaintiffs from proceeding under a pseudonym. SeeGov't Defs.' Mot. Dismiss ("Gov't's Mot."), ECF No. 64; Defs. MPAS and WRA's Mot. Dismiss Pls.' Second Am. Compl. Pursuant to Fed. R. Civ. P. 12 (B)(1) and (6), Motion to Strike Pursuant to Fed. R. Civ. P. 12(f), Mot. to Sever and Transfer Venue, and Motion to Reconsider Order on Motion to Proceed under a Pseudonym ("Ass'n Defs.' Mot."), ECF No. 63. For the reasons set out below, the Federal Defendants' motion to dismiss is granted in part and denied in part, and the Association Defendants' motions to sever and transfer are granted and their motions to dismiss, strike, and to reconsider the order on motion to proceed under a pseudonym are denied, without prejudice.

I. BACKGROUND

The operation of the H-2A visa program and the invalidation of the 2011 TEGLs leading to the Remedial Order have been described in detail in prior opinions of this Court and the D.C. Circuit. See Hispanic Affairs Project v. Perez , 141 F.Supp.3d 60, 63–66 (D.D.C.2015), vacated and remanded Mendoza v. Perez , 754 F.3d 1002, 1024 (D.C.Cir.2014) ; Remedial Order, 72 F.Supp.3d at 169–71. This background is, consequently, only briefly summarized here, followed by a review of the plaintiffs' claims and the pertinent procedural history.

A. The H-2A Statutory Regime and the Open Range Herder Rules

The Immigration and Nationality Act ("INA") authorizes the grant of temporary work visas to any nonimmigrant alien "having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services." 8 U.S.C. § 1101(a)(15)(H)(ii)(a). In order to hire such foreign workers, American employers must first obtain certification from the Secretary of Labor, who may certify, or approve, the temporary work visas, called H-2A visas, when, inter alia , (1) "there are not sufficient workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition," and (2) "the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed." Id. § 1188(a)(1)(A). DHS, upon consultation of DOL's labor certification, ultimately issues the visas. Id. § 1184(c)(1).¹

To satisfy the statutory mandate that H-2A workers not "adversely affect the wages and working conditions" of domestic workers, DOL has adopted regulations setting minimum wages and working conditions provided to domestic and foreign workers. Mendoza , 754 F.3d at 1008. In particular, DOL requires H-2A employers to pay their hourly workers the highest of what is known as an adverse effect wage rate ("AEWR"), "the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage." 20 C.F.R. § 655.120(a). The AEWR does not apply to open-range herders, such as cattleherders, sheepherders, and goatherders, however, because of the "unique occupational characteristics of herding—including spending extended periods in isolated areas and being on call twenty-four hours a day, seven days a week to protect livestock." Mendoza , 754 F.3d at 1008–09. Instead, the 2011 TEGLs provided special variances from the default AEWR and imposed different methods of calculating the prevailing wage for each state, which is the minimum that employers are required to pay foreign H-2A open-range herders. Id. at 1008.

In October 2011, four Americans, who had all stopped working as open-range herders at least one year before the 2011 TEGLs went into effect, sued the Secretary of Labor and the Department of Labor, challenging the procedural validity of the 2011 TEGLs due to their promulgation without notice-and-comment as required under the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq .See Mendoza , 924 F.Supp.2d 307, 310 (D.D.C.2013).² The plaintiffs succeeded in their challenge, and this Court, with the consent of all parties and to minimize disruption in the industry, retained in effect the invalidated TEGLs until the effective date of the new rule, which was set "to be no later than 30 days after the rule's publication or December 1, 2015, whichever is earlier." Remedial Order, 72 F.Supp.3d at 175.

In accordance with the court-ordered time schedule, in April 2015, DOL published notice for comment on a proposed rule to replace the 2011 TEGLs. See Notice of Proposed Rule on Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States ("NPRM") (Apr. 15, 2015), 80 Fed. Reg. 20,300. Towards Justice, counsel to the plaintiffs in this case, along with 53 other groups and 3 individuals, commented on the NPRM, with the general appraisal being that the proposed rule "is a welcome change that begins to address the wage stagnation in the industry." Comments of Farmworker Justice, et al. at 1, Docket No. ETA–2015–0004–0460 (June 1, 2015). Towards Justice stated that they "applaud and appreciate elements of the proposed rule that will greatly benefit both temporary foreign workers and U.S. workers alike, including long-overdue wage increases and other proposed provisions that seek to address the poor working conditions." Id . Echoing their complaints about the 2015 Rule in this case, however, Towards Justice expressed disagreement with DOL's proposed 44-hour workweek as the basis for the monthly salary because "worker surveys indicate that most workers average in excess of 80 hours per week while on the open range," and the lack of distinction "between time spent on the ranch performing ranch duties and time spent on the range." Id. at 1–2.³

On October 16, 2016, DOL published the final rule, which became effective on November 16, 2015, two weeks earlier than the deadline set by the Remedial Order. See generally 2015 Rule; 20 C.F.R. § 655. The 2015 Rule effectively raised the prevailing wage from $750 per month in most states under the 2011 TEGLs to around $1206 per month, see 80 Fed. Reg. at 62,987 (former prevailing wage rate),...