NAACP, Jefferson County Branch v. Donovan

• Citation: 737 F.2d 67
• Decision Date: 12 June 1984
• Docket Number: Nos. 83-1919,83-2165,s. 83-1919
• Parties: , 101 Lab.Cas. P 34,554 NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE, JEFFERSON COUNTY BRANCH, et al. v. Raymond J. DONOVAN, Secretary, U.S. Department of Labor, et al., Appellants. (Two cases)
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 67

737 F.2d 67

237 U.S.App.D.C. 285, 101 Lab.Cas. P 34,554

NATIONAL ASSOCIATION FOR ADVANCEMENT OF COLORED PEOPLE, JEFFERSON COUNTY BRANCH, et al. v. Raymond J. DONOVAN, Secretary, U.S. Department of Labor, et

al., Appellants. (Two cases)

Nos. 83-1919, 83-2165.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 7, 1984.

Decided June 12, 1984.

Appeals from the United States District Court for the District of Columbia (Civil Action No. 82-02315).

Michael Kimmel, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty., Dept. of Justice, and Joseph E. diGenova, U.S. Atty., Washington, D.C., were on the brief, for appellants.

Thomas Dunn Goldberg, Washington, D.C., with whom Philip A. Lacovara and Ronald A. Stern, Washington, D.C., were on the brief, for appellees.

Before MIKVA, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This appeal arises from a lawsuit challenging the Department of Labor's (DOL or Labor Department) method for calculating minimum wage rates for migrant farmworkers. The lawsuit was brought by appellees under the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(a)(15)(H)(ii) (1982), and its implementing regulations, 8 C.F.R. Sec. 214.2(h)(3)(i) (1984); 20 C.F.R. Sec. 655 (1983). Appellees challenge the procedures used by DOL to certify that the employment of temporary foreign labor will not "adversely affect" the wages and working conditions of similarly situated U.S. workers. The district court granted summary judgment for appellees in two earlier phases of this litigation, holding that DOL's method for calculating minimum wage rates for migrant farmworkers was contrary to DOL's own regulations. NAACP v. Donovan, 558 F.Supp. 218 (D.D.C.1982) (NAACP I); NAACP v. Donovan, 566 F.Supp. 1202 (D.D.C.1983) (NAACP II). DOL does not challenge those earlier decisions.

Following the district court's issuance of NAACP II, DOL amended one of the regulations that had been at issue in the earlier litigation. The narrow issue presented in this appeal is the validity of an interlocutory order issued by the district court enjoining DOL from implementing that regulation. We reverse the district court as to the issuance of that preliminary injunction, but express no views on the merits of appellees' substantive challenge to the validity of the amended regulation, a question that is currently pending before the district court.

BACKGROUND

This case arises under a complex statutory and regulatory scheme designed to provide for the temporary importation of foreign labor to alleviate domestic labor shortages and to ensure that U.S. workers are protected adequately from the economic impact resulting from the employment of foreign workers. Congress has given the administering agencies considerable discretion in developing a program to serve these dual, and sometimes conflicting, purposes.

In 1952, as part of a major overhaul of the nation's immigration laws, Congress created a new class of "nonimmigrants" who could be admitted to the United States on a temporary basis to alleviate labor shortages. The Immigration and Nationality Act (the Act) defines a nonimmigrant to include "an alien having a residence in a foreign country which he has no intention of abandoning ... (ii) who is coming temporarily to the United States to perform temporary service or labor, if unemployed persons capable of performing such service or labor cannot be found in this country ...." 8 U.S.C. Sec. 1101(a)(15)(H)(ii) (1982) (emphasis added). Section 214(c) of the Act gives the Attorney General broad authority to determine whether an "H-2" temporary visa should be granted to a nonimmigrant in "any specific case or specific cases ... after consultation with appropriate agencies of the Government, upon petition of the importing employer." 8 U.S.C. Sec. 1184(c) (1982). Those two provisions of The Attorney General, acting through the Immigration and Naturalization Service (INS), has delegated to DOL the responsibility for determining the nonavailability of U.S. workers for purposes of issuing H-2 visas. Before issuing an H-2 visa, the INS requires each petitioning employer to obtain "a certification from the Secretary of Labor ... stating that qualified persons in the United States are not available and that ... employment of the beneficiary will 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)(i) (1984).

the Act provide the statutory framework for the regulations involved in this appeal.

The Labor Department procedures for certifying employers who seek to employ nonimmigrant foreign agricultural workers on a temporary basis are set forth at 20 C.F.R. Sec. 655 (1983). One purpose of the temporary labor certification regulations is to ensure that use of foreign workers does not depress the wages of U.S. workers. To achieve that goal, DOL has established a minimum hourly rate--called the "adverse effect rate" (AER)--that an employer must agree to pay U.S. workers before it can be certified to employ temporary foreign workers. The AER is determined on a state-by-state basis, and is based on surveys of U.S. wages for agricultural labor in each area. The regulations provide that the AER shall be "the prevailing wage rate[ ] in the area of intended employment." 20 C.F.R. Sec. 655.207(a) (1983). The AER can be set at a rate higher than the prevailing wage rate, however, if it is determined "that the use of aliens has depressed the wages of similarly employed U.S. workers." 20 C.F.R. Sec. 655.200(b) (1983).

Although the AER establishes the minimum hourly rate that must be offered U.S. workers, for many crops wage rates are set, not by the hour, but by the "piece"--the number of bushels or boxes that a worker picks. To ensure that the regulations protect U.S. workers who are paid by the piece, DOL requires employers to offer piece rates that produce average hourly earnings at least equal to the AER for that area. 20 C.F.R. Sec. 655.202(b)(9)(ii) (1983). Because the AERs change from year to year, section 655.207(c) of the regulations (also referred to as "the piece rate regulation") provides that piece rates be adjusted accordingly. 20 C.F.R. Sec. 655.207(c) (1983). This litigation involves the method for calculating piece rates under section 655.207(c).

To calculate a piece rate under the regulatory scheme created by DOL, it is necessary to estimate a worker's hourly productivity rate. The piece rate multiplied by the productivity rate must be at least as high as the AER. Theoretically, an employer can increase either the piece rate or the productivity rate in order to meet any increases in the AER. Appellees claim that DOL has certified growers who make upward estimates in the productivity rates expected of workers instead of raising the piece rates offered to those workers when the AER increases. They argue that this result is contrary to DOL's own regulatory scheme.

In the initial lawsuit filed in 1982, two U.S. migrant farmworkers and the Jefferson County, West Virginia branch of the NAACP filed suit on behalf of all U.S. migrant farmworkers seeking employment in West Virginia. They alleged that DOL had certified three West Virginia growers without requiring them to adjust their piece rates upward to reflect increases in the AER as required by section 655.207(c) of the regulations. That section, which was promulgated in 1977, provides:

In any year in which the applicable adverse effect rate is increased, employers shall adjust their piece rates upward to avoid requiring a worker to increase his or her productivity over the previous year in order to earn an amount equal to what the worker would earn if the worker were paid at the adverse effect rate.

20 C.F.R. Sec. 655.207(c) (1983). The plaintiffs did not allege that the regulation violated the agency's statutory mandate, but argued instead that, by permitting the The district court entered summary judgment for the plaintiffs. NAACP v. Donovan, 558 F.Supp. 218 (D.D.C.1982) (NAACP I ). The court concluded that the language of sections 655.207(c) and 655.202(b)(9)(ii) requires DOL to retain a constant productivity rate when determining whether piece rates yield average hourly earnings at least as high as the AER. Id. at 223. Because a standard productivity rate must be used, the court concluded that the regulations require growers to increase piece rates proportionately to any increases in the AER. The court explicitly rested its holding on an interpretation of the existing regulations, not upon the underlying statutory scheme. It ordered DOL to use a standard productivity rate based on the rate used by the three growers in 1977 when the piece rate regulation first went into effect. Id.

growers to offset increases in the AER by raising the productivity rate expected of an average worker, DOL had failed to enforce section 655.207(c).

The Labor Department did not appeal from NAACP I. It complied with the court's order with respect to certification of the three West Virginia growers and established a 1982 AER for West Virginia, but took no steps to establish 1982 AERs for most other states. It also failed to apply the district court's interpretation of the piece rate regulation to certifications in states other than West Virginia. In light of DOL's narrow application of the NAACP I injunction, the original plaintiffs, joined by several individuals from nine other states and a farmworker rights organization with members throughout the country, filed an amended supplemental complaint on behalf of a nationwide class of migrant farmworkers who work in states affected by DOL's temporary labor certification program. In its second summary judgment for plaintiffs, the district court held, inter alia, that DOL has an obligation to promulgate AERs annually. NAACP v. Donovan, 566...