Mendoza v. Perez

• Decision Date: 31 October 2014
• Docket Number: Civil Action No. 11–1790 BAH
• Citation: 72 F.Supp.3d 168
• Court: U.S. District Court — District of Columbia
• Parties: Reymundo Z. Mendoza, et al., Plaintiffs, v. Thomas E. Perez, in his official capacity, et al., Defendants, v. Western Range Association, et al., Intervenor–Defendants.

72 F.Supp.3d 168

Reymundo Z. Mendoza, et al., Plaintiffs

v.Thomas E. Perez, in his official capacity, et al., Defendants

v.Western Range Association, et al., Intervenor–Defendants.

Civil Action No. 11–1790 BAH

United States District Court, District of Columbia.

Signed October 31, 2014

Gregory A. Beck, Gupta Beck PLLC, Allison Marcy Zieve, Julie A. Murray, Public Citizen Litigation Group, Michael T. Kirkpatrick, Washington, DC, Edward John Tuddenham, New York, NY, Jennifer J. Lee, Colorado Legal Services, Denver, CO, P. Alex McBean, Utah Legal Services, Inc., Salt Lake City, UT, for Plaintiffs Reymundo Zacarias Mendoza, Francisco Javier Castro, Alfredo Conovilca Matamoros and Sergio Velasquez Catalan.

Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Defendants Hilda Solis and United States Department of Labor.

Wendel Vincent Hall, Monte B. Lake, C.J. Lake LLC, Carl W. Hampe, Fragomen, Del Rey, Bernsen & Loewy LLP, Washington, DC, for Intervenor–Defendants Western Range Association and Mountain Plains Agriculture Service.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

This case is before the Court to determine the appropriate remedy to address the procedural violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553, by the defendants Thomas E. Perez¹ , in his official capacity as Secretary of Labor, and the U.S. Department of Labor (collectively, “Federal Defendants”). Pending before the Court is the plaintiffs' motion for a remedial order “setting a schedule for the [Federal Defendants] to initiate and complete a rulemaking establishing terms and conditions of employment, including wages and housing benefits, that employers participating in the H–2A visa program must offer to sheepherders and open range livestock workers and a date on which the existing rules will be vacated.” Pls.' Mot. for Rulemaking Schedule and Vacatur (“Pls.' Mot.”), ECF No. 49. For the reasons discussed below, this motion is granted in part and denied in part.

I. BACKGROUND

The factual and procedural history of this case will not be repeated here since this background is fully set out in this Court's prior Memorandum Opinion dismissing the suit for lack of both Article III and prudential standing, under Federal Rule of Civil Procedure 12(b)(1), and the D.C. Circuit's reversal of that conclusion. See Mendoza v. Solis, 924 F.Supp.2d 307, 310–15 (D.D.C.2013), rev'd sub nom ., Mendoza v. Perez, 754 F.3d 1002 (D.C.Cir.2014).² In short, the plaintiffs are U.S. workers, who left their herding jobs by May, 2011, due to “the substandard wages and working conditions they attribute to the easy availability of foreign herders.” Mendoza, 754 F.3d at 1007. They challenged two Training and Employment Guidance Letters (“TEGLs”), which were published, on August 4, 2011, in the Federal Register by the Federal Defendants to implement a foreign worker visa program, under 8 U.S.C. § 1188(a)(1). Id. at 1007–08. The TEGLs “establish[ed] the minimum wages and working conditions employers must offer U.S. sheepherders, goatherders, and open-range (cattle) herders before hiring foreign herders.” Id. at 1007.

The plaintiffs successfully argued before the D.C. Circuit that the challenged TEGLs “were subject to the notice and comment requirements [of the APA] because they possess all the hallmarks of a legislative rule,” by “chang[ing] the regulatory scheme for herding operations.” Id. at 1024–25. Specifically, absent the TEGLs, visa petitions for foreign herders “would be subject to the standards found in 20 C.F.R. part 655, which would, to take only a few examples, require employers to pay herders the higher of the AEWR, the prevailing wage, or the minimum wage, keep track of herders' hours, and pay herders at least twice a month. The TEGLs, on the other hand, require employers to pay only the higher of the prevailing wage rate or minimum wage, exempt employers from recording herders' hours actually worked, and allow employers to pay employees once monthly upon mutual agreement between employer and worker.” Mendoza, 754 F.3d at 1024–25 (citing TEGL No. 15–06, 76 Fed.Reg. at 47, 244–46 ; TEGL No. 32–10, 76 Fed.Reg. at 47, 257–59 ).

The D.C. Circuit held that “the Department of Labor violated the Administrative Procedure Act by promulgating [the TEGLs] without providing public notice and an opportunity for comment,” and remanded the case to this Court “to craft a remedy to the APA violation.” Id. at 1025. To fashion an appropriate remedy, the Court directed consideration of “various factors including whether vacating the TEGLs would have a disruptive effect on the herding industry and how quickly the Department of Labor might be able to promulgate, pursuant to the procedural requirements of the APA, new H–2A regulations for herding operations.” Id. (citing, for comparison, Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 8 (D.C.Cir.2011) (where agency “failed to conduct a notice-and-comment rulemaking,” remand was necessary, but “[b]ecause vacating the present rule would severely disrupt an essential security operation,” rule was not vacated and agency was admonished “to act promptly on remand to cure the defect in its promulgation”).

Following the D.C. Circuit's issuance of its opinion, and even before the mandate issued remanding the case, this Court directed the parties to “submit a joint status report ... that either: (1) proposes an agreed upon remedy for the APA violation or (2) proposes a briefing schedule that will address the various factors the Court should consider in crafting a remedy.” Minute Order, September 2, 2014. In response, the parties indicated that, although they agreed “that the Department of Labor must undertake notice-and-comment rulemaking to replace the [TEGLs] invalidated in this case,” they disagreed on the schedule necessary to complete that agency action and whether the TEGLs should be vacated. Jt. Status Report, at 1, ECF No. 48. Consequently, the Court entered a briefing schedule to enable the parties to set out more fully their positions on the appropriate timing and elements of the remedy. Minute Order, September 10, 2014. Briefing on the plaintiff's motion for an order setting a schedule for rulemaking and vacatur is now complete.

II. DISCUSSION

The Court's present task is to “craft a remedy to the APA violation.” Mendoza, 754 F.3d at 1025. The parties appear to agree on key elements of this remedy, including that the Federal Defendants should (1) publish a Notice of Proposed Rulemaking to replace the procedurally defective TEGLs; (2) solicit public comment; (3) respond to significant comments; (4) ensure full inquiry and analysis of relevant economic and policy issues; (5) comply with interagency processes to ensure appropriate oversight by the Office of Information and Regulatory Affairs (“OIRA”) and consultation with pertinent agencies, such as the Department of Agriculture; and, finally, (6) generally comply with all applicable legal requirements, including initial and final regulatory flexibility analyses, as required by 5 U.S.C. §§ 603(a), 604(a)(5). See generally Pls.' Mem. Supp. of Pls.' Mot. for Rulemaking Schedule and for Vacatur (“Pls.' Mem.”), ECF No. 49–1; Defs.' Mem. in Resp. to Pls.' Mot. (“Defs.' Resp.”), ECF No. 51; Def.-Int'rs.' Mem. Partial Opp'n to Pls.' Mot. (“Def.-Int'rs' Mem.”), ECF No. 50. They disagree on the time table for completion of this process and whether, at the end of the process, vacatur of the TEGLs is required. These two areas of disagreement are addressed separately below.

A. Time Table For Notice and Comment Rulemaking

The Federal Defendants indicate that work is already underway on a new rule to replace the invalid TEGLs, including preparation of a “proposed methodology for determining wage rates in the open range production of livestock along with an accompanying cost-benefit analysis for OIRA review” and development of “standards for determining recruitment of United States workers and housing requirements for workers.” Defs.' Resp. at 5. The plaintiffs request that this work be fully completed and a final rule be placed in effect within 150 days of this Court's order. Pls.' Mem. at 2. Specifically, the plaintiffs seek a remedial order that (1) directs the Federal Defendants to complete the notice and comment rulemaking and publish a final rule within 120 days of this Court's Order, which would be about March 2015; and (2) sets an effective date for the final rule that is 30 days after the date of the publication, which would be about April 2015. See id. at 2–3. According to the plaintiffs, this concededly “rapid rulemaking,” id. at 3, on “[a]n expeditious schedule,” id. at 4, is necessary because “each day that the TEGLs are in effect, they impose a legally-invalid regime that alters workers' substantive rights,” by depressing U.S. workers' wages and working conditions, id. at 3–4, particularly since the case has already been underway for an “extended period of time,” id. at 4.

The Federal Defendants do not appear to resist the plaintiffs' request for a remedial order that outlines a rulemaking schedule. See Defs.' Resp. at 9 (asking only that “the agency should be granted leave to complete the required rulemaking process in conformity with the time frame outlined above with a final rule for publication by November 2015”).³ Rather, they contend that the expedited schedule proposed by the plaintiffs cannot be met “without compromising the integrity of the notice and comment process and related statutory and executive order requirements.” Defs.' Resp. at 2. The Federal Defendants warn that imposition of such an expedited schedule “may likely undercut the necessary economic study and consideration of public comments that are fundamental aspects of the notice and comment process.” Id.

In contrast to the plaintiff's proposed schedule to complete final rulemaking and have a new rule in effect within 150 days of this Court's order, the Federal Def...