Nat'l Council of Agric. Employers v. United States Dep't of Labor
| Decision Date | 16 February 2023 |
| Docket Number | Civil Action 22-3569 (RC) |
| Parties | THE NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
The National Council of Agricultural Employers (“NCAE” or “Plaintiff”) seeks relief from alleged violations of the Administrative Procedure Act (“APA”) in connection with the promulgation of a Department of Labor (“DOL”) rule.[1] Plaintiff filed the Complaint on November 23, 2022, see ECF No. 1 followed two days later by a Motion for Temporary Restraining Order and Preliminary Injunction, see ECF No. 4. After an expedited hearing on November 29, 2022, the Court denied the motion but gave Plaintiff leave to renew its motion for preliminary injunction. See Hearing Tr. at 12, ECF No. 10. Plaintiff did so on December 23, 2022, see ECF No. 12, and that renewed motion is now ripe for consideration. For the reasons set forth below, the Court denies Plaintiff's Renewed Motion for Preliminary Injunction.
The Immigration and Nationality Act provides for temporary work authorization for foreign agricultural workers under the H-2A program. See 8 U.S.C. § 1101(a)(15)(H)(ii)(a); § 1184(c)(1). The H-2A program permits employers, referred to as labor contractors, to temporarily hire foreign workers upon a certification that “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 [relevant] labor or services” and that “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.” § 1188(a)(1)(A)-(B). Once DOL certifies an employer's petition, the employer can petition the Department of Homeland Security to designate foreign workers as H-2A workers. See Overdevest Nurseries v. Walsh, 2 F.4th 977, 980 (D.C. Cir. 2021). NCAE represents agricultural labor employers, including a large number of H-2A labor contractors. See Compl. ¶ 13, ECF No. 1.
Congress directed the Secretary of Labor to promulgate regulations to “set the parameters of the [H-2A] program.” Overdevest Nurseries, 2 F.4th at 980; 8 U.S.C. § 1101(a)(15)(H). Those regulations appear at 20 C.F.R. pts. 653, 655 and 29 C.F.R. pt. 501. Most of them were in place since 2010 (the “2010 status quo”) until DOL issued a notice of proposed rulemaking on July 26, 2019 (the “2019 NPRM”). See Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed.Reg. 61660, 61662 (Oct. 12, 2022) (); Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 Fed.Reg. 36168 (proposed July 26, 2019) (to be codified at 29 C.F.R. pts. 635, 655); Compl. ¶ 44. DOL received more than 83,000 comments on the 2019 NPRM during a 60-day notice-and-comment period, including a 27-page comment from NCAE. See Compl. ¶ 44; Am. Decl. of Michael Marsh (“Am. Marsh Decl.”), Ex. 1 to Renewed Mot. Prelim. Inj. ¶¶ 9-10, ECF No. 12-2; Nat'l Council of Agric. Employers, Marsh, Michael, Comment Letter on Proposed Rule Regarding Temporary Agricultural Employment of H-2A Nonimmigrants in the United States (Sept. 24, 2019), https://www.regulations.gov/comment/ETA-2019-0007-0354 [hereinafter “NCAE 2019 NPRM Comment”].
After President Biden won the 2020 election but before he took office, DOL took steps toward promulgating a final rule, which the Court will refer to as the 2021 Rule.[2] On January 14, 2021, the then-Deputy Chief of Staff of the U.S. Department of Agriculture sent a message to stakeholders from the DOL Office of Public Liaison noticing a stakeholder call the following day “regarding significant rulemaking on the H-2A Visa Program.” Compl ¶ 46; Ex. C to Compl., ECF No. 1-3. The next day, on January 15, 2021, DOL issued a news release announcing a “final rule that modernizes” the H-2A program, linking to a version of the rule, and stating that DOL “will publish the final rule in the Federal Register at a later date.” Compl. ¶ 47; Ex. B to Compl., ECF No. 1-2. The linked version of the rule contained a disclaimer at the top of each page stating that the “regulation has been submitted to the Office of the Federal Register (OFR),” but that “[t]his version of the regulation may vary slightly from the published document” and “[o]nly the version published in the Federal Register is the official regulation.” Id. () (last visited Feb. 15, 2023). The same day, USDA also issued a press release “applauding [DOL's] final rule modernizing the H-2A visa program,” Ex. F to Compl., ECF No. 1-6. Also on January 15, Plaintiff received word of the 2021 Rule and sent a message alerting its members about it. Am. Marsh Decl. ¶¶ 15-16.
On January 20, 2021, the day President Biden took office, DOL posted an announcement to its website stating that it “withdrew” the “forthcoming final rule” that had been announced on January 15 “prior to its publication for the purpose of reviewing issues of law, fact, and policy raised by the rule.” Ex. D to Compl., ECF No. 1-4. It explained that “it will not take effect” and that DOL would “notify the public of any further actions as appropriate once it completes its review.” Id. Fast-forwarding about 18 months, as of July 15, 2022, Michael Marsh, President and CEO of NCAE, alleges that he was aware that DOL had sent an updated draft final rule to the Office of Information and Regulatory Affairs at the Office of Management and Budget. Am. Marsh Decl. ¶ 21. On August 11, 2022, Plaintiff participated in a telephonic meeting regarding that draft rule with DOL staff, although allegedly no staff from the principally relevant DOL components the Employment and Training Administration (“ETA”) and the Wage and Hour Division (“WHD”) were present. Id. ¶ 23.
On October 6, 2022, DOL published an announcement on its website stating that a final version of the rule was to be published in the Federal Register on October 12, 2022. Compl. ¶ 63. On October 12, 2022, the rule (the “2022 Rule”) was published in the Federal Register, with an effective date of November 14, 2022. Id. ¶ 64; Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 Fed.Reg. 61660 (Oct. 12, 2022) (). Based on a transition period provided for under the rule, in conjunction with program application timing requirements, Plaintiff states that December 15, 2022 was the first date that an employer's application was processed under the 2022 Rule. See Mem. Supp. Pl.'s Renewed Mot. Prelim. Inj. (“Renewed Mot. PI”) at 6, ECF No. 12-1.[3]
For a preliminary injunction to issue, “the moving party must demonstrate (1) a substantial likelihood of success on the merits, (2) that it would suffer irreparable harm without injunctive relief, (3) that an injunction would not substantially harm other interested parties, and (4) that issuance of the injunction is in the public interest.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). The first two factors are most important, and a court “may deny a motion for preliminary injunction, without further inquiry, upon finding that a plaintiff is unable to show either irreparable injury or a likelihood of success on the merits.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205 F.Supp.3d 4, 26 (D.D.C. 2016) (emphasis in original). To show irreparable harm in the D.C. Circuit, the movant must demonstrate an injury that is “both certain and great ... of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm” and that the injury be “beyond remediation.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (cleaned up). The harm must be “‘more than simply irretrievable; it must also be serious in terms of its effect on the plaintiff.'” Hi-Tech Pharmacal Co. v. FDA, 587 F.Supp.2d 1, 11 (D.D.C. 2008) (quoting Gulf Oil Corp. v. Dep't of Energy, 514 F.Supp. 1019, 1026 (D.D.C.1981)). That is, the “alleged injury must be certain, great, actual, and imminent.” Hi-Tech Pharmacal Co., 587 F.Supp.2d at 11 ). Accordingly, “[t]he irreparable injury requirement erects a very high bar for a movant.” Coalition for Common Sense in Gov't Procurement v. United States, 576 F.Supp.2d 162, 168 (D.D.C. 2008) (citing Varicon Int'l v. OPM, 934 F.Supp. 440, 447 (D.D.C. 1996)).
“[I]n this Circuit, the general rule is that ‘economic loss does not, in and of itself, constitute irreparable harm'” because economic harm usually is recoverable in monetary damages. Xiami Corp. v. Dep't of Def., 2021 WL 950144, at *10 (D.D.C. 2021) ). However, where, as here, sovereign immunity precludes a monetary award, “courts have recognized that unrecoverable economic loss can indeed constitute irreparable harm.” Id. (citations omitted). Still, it would “eviscerate the irreparable harm requirement” to hold that any damage caused by a government defendant is necessarily irreparable harm for purposes of the preliminary injunction standard. Id. (citing Air Trans. Ass'n of Am. v. Export-Import Bank of the U.S., 840 F.Supp.2d 327, 335 (D.D.C. 2012)). Accordingly, “economic harm must be significant, even where it is irretrievable because a...
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