North Carolina Growers' Ass'n, Inc. v. Solis

• Citation: 644 F.Supp.2d 664
• Decision Date: 29 June 2009
• Docket Number: No. 1:09CV411.,1:09CV411.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: NORTH CAROLINA GROWERS' ASSOCIATION, INC., National Christmas Tree Association, Florida Fruit and Vegetable Association, Inc., Virginia Agricultural Growers Association, Inc., Snake River Farmers Association, National Council of Agricultural Employers, North Carolina Christmas Tree Association, North Carolina Pickle Producers Association, Florida Citrus Mutual, North Carolina Agribusiness Council, Maine Forest Products Council, Alta Citrus, LLC, Everglades Harvesting and Hauling, Inc., Desoto Fruit and Harvesting, Inc., Forest Resources Association, Titan Peach Farms, Inc., H-2A USA, Inc., and Overlook Harvesting Company, LLC, Plaintiffs, v. Hilda L. SOLIS, in her official capacity as United States Secretary of Labor, United States Department of Labor, Janet Napolitano, in her official capacity as United States Secretary of Homeland Security, and United States Department of Homeland Security, Defendants.

644 F.Supp.2d 664

NORTH CAROLINA GROWERS' ASSOCIATION, INC., National Christmas Tree Association, Florida Fruit and Vegetable Association, Inc., Virginia Agricultural Growers Association, Inc., Snake River Farmers Association, National Council of Agricultural Employers, North Carolina Christmas Tree Association, North Carolina Pickle Producers Association, Florida Citrus Mutual, North Carolina Agribusiness Council, Maine Forest Products Council, Alta Citrus, LLC, Everglades Harvesting and Hauling, Inc., Desoto Fruit and Harvesting, Inc., Forest Resources Association, Titan Peach Farms, Inc., H-2A USA, Inc., and Overlook Harvesting Company, LLC, Plaintiffs, v. Hilda L. SOLIS, in her official capacity as United States Secretary of Labor, United States Department of Labor, Janet Napolitano, in her official capacity as United States Secretary of Homeland Security, and United States Department of Homeland Security, Defendants.

No. 1:09CV411.

United States District Court, M.D. North Carolina.

June 29, 2009.

As Amended July 1, 2009.

COPYRIGHT MATERIAL OMITTED

William Randolph Loftis, Jr., Constangy Brooks & Smith, LLC, Winston-Salem, NC, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge.

Before the court is Plaintiffs' Motion for Preliminary Injunction. (Doc. 2.) Plaintiffs seek to preliminarily enjoin Defendants from temporarily substituting a regulation that governs the short-term employment of nonimmigrant agricultural workers. (Id.) Plaintiffs allege that the Department of Labor ("DOL") "suspended" a rule and (re)imposed a new rule without following the requisite procedures for "rule making" as set forth in the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 553 and 701. The court notes that it has not been required to, nor has it attempted to evaluate the substantive merits of any of administrative rules or regulations. The scope of review the court applies to administrative actions is narrow, and "a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). In accordance with this standard, the court has evaluated Plaintiffs' motion and the process by which the DOL formulated the rule at issue in this case. For the reasons set forth herein, Plaintiffs' motion for a preliminary injunction (Doc. 2) will be granted.

I. Facts

The DOL and the Department of Homeland Security's "H-2A" and "H-2B" visa programs provide methods for farmers and foresters to temporarily employ foreign workers to perform labor that is in short supply in the United States.

In 1987, the DOL promulgated a series of regulations in furtherance of the H-2A program ("1987 Rule") that largely remained in effect until 2009. In 2008, the DOL promulgated new H-2A regulations ("2008 Rule"), eliminating the 1987 Rule and becoming effective on January 17, 2009. See Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110 (Dec. 18, 2008). The 2008 Rule was created to fix various perceived problems with the 1987 Rule. See id. For example, the 2008 Rule was designed to eliminate duplicative H-2A activities, more rigorously penalize noncompliant entities and protect workers. Id.

On March 17, 2009, the DOL issued a notice of proposed rule making ("2009 NPRM"), proposing to "suspend" the 2008 Rule for nine months and reinstate the 1987 Rule "[t]o avoid the regulatory vacuum that would result" from that suspension. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 11,408, 11,408 (Mar. 17, 2009). The 2009 NPRM had a ten day comment period and advised interested parties that the DOL would not consider certain comments in promulgating any rule that might arise from the notice:

Please provide written comments only on whether the Department should suspend the December 18, 2008 final rule for further review and consideration of the issues that have arisen since the final rule's publication. Comments concerning the substance or merits of the December 18, 2008 final rule or the prior rule will not be considered.

Id. (emphasis added).

On May 29, 2009, consistent with the 2009 NPRM, the DOL issued a new H-2A rule ("Substitution Rule"), scheduled to take effect on June 29, 2009:

The Department of Labor (DOL or Department) is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009.... To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.

Temporary Employment of H-2A Aliens in the United States, 74 Fed.Reg. 25,972, 25,972 (May 29, 2009). With regard to the scope of comment restriction contained in the 2009 NPRM, the Substitution Rule states that "[t]hough all comments have been reviewed, only those comments responding to issues on which the [DOL] sought comment were considered in this Final Rule." Id. at 25,973. Additionally, the Substitution Rule contains a "grandfather" provision which provides that the 2008 Rule applies to all H-2A applications filed prior to the Substitution Rule's effective date. Id. at 25,979.

On June 9, 2009, North Carolina Growers' Association, Inc., National Christmas Tree Association, Florida Fruit and Vegetable Association, Inc., Virginia Agricultural Growers Association, Inc., Snake River Farmers Association, National Council of Agricultural Employers, North Carolina

Christmas Tree Association, North Carolina Pickle Producers Association, Florida Citrus Mutual, North Carolina Agribusiness Council, Inc., Maine Forest Products Council, Alta Citrus, LLC, Everglades Harvesting and Hauling, Inc., Desoto Fruit and Harvesting, Inc., Forest Resources Association, Titan Peach Farms, Inc., H-2A USA, Inc. and Overlook Harvesting Company, LLC (collectively, "Plaintiffs") filed a complaint naming as defendants the DOL, Hilda L. Solis, in her official capacity as the Secretary of the DOL, the Department Homeland Security ("DHS"), and Janet Napolitano, in her official capacity as the Secretary of DHS (collectively, "Defendants"). (Pls.' Compl. (Doc. 1).) Plaintiffs allege that Defendants violated the APA, 5 U.S.C. §§ 553 and 701, in formulating the Substitution Rule. (Id. at ¶¶ 54-86.) Also on June 9, 2009, Plaintiffs filed a motion to preliminarily enjoin Defendants from implementing the Substitution Rule. (Doc. 2.)

On June 18, 2009, United Farm Workers, James Cease, Mario Centeno-Rodriguez, Juan Cisneros-Ibarra, Luis Enrique Cisneros-Ibarra, Reymundo Gutierrez, Carlos Luis Guzman-Avila, Juan Luis Guzman-Centeno, Jose Raul Guzman-Centeno, Abelardo Hernandez-Aguas, Gregorio Huertas-Samano, Pedro Ibarra-Avila, Atanacio Lugo-Rincon, Obdula Maldonado-Abellaneda, Miguel Angel Olguin-Hernandez, Arturo Olguin-Monroy, Omera Rodriguez-Guzman, Desiderio Tovar-Zapata and Alejandro Trejo-Leon (collectively, "Applicant Defendants") filed a Motion to Intervene as Parties Defendant. (Doc. 37.) The court has taken Applicant Defendants' Motion to Intervene under advisement and permitted Applicant Defendants to intervene for the limited purpose of Plaintiffs' motion for preliminary injunctive relief. The court likewise allowed Applicant Defendants to participate in an oral argument hearing on Plaintiffs' motion that was held on June 22, 2009.

II. Legal Standards

A. Preliminary Injunctive Relief

"[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances." MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir.1991)). In the Fourth Circuit, courts employ the "balance-of-hardships test" in determining whether to issue preliminary injunctive relief. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193, 196 (4th Cir.1977). Under the balance-of-hardships test, courts generally consider the following factors: (1) the likelihood of irreparable harm to the plaintiffs if injunctive relief is denied; (2) the likelihood of harm to the defendants if the order is granted; (3) the likelihood that the plaintiffs will prevail on the merits; and (4) the degree to which the public interest is served by issuance of injunctive relief. Id. at 197. "[T]he plaintiff bears the burden of establishing that each of these factors supports granting the injunction." Direx Israel, 952 F.2d at 812 (quoting Technical Publ'g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir.1984) (internal brackets omitted)).

Pursuant to the balance-of-hardships test, the plaintiff must first make a clear showing of actual and immediate irreparable harm. Direx Israel, 952 F.2d at 812. "If the plaintiff has made a `clear showing' of irreparable injury absent injunctive relief, the court must next balance the likelihood of irreparable harm to the plaintiff if an injunction is not issued against the likelihood of irreparable harm to the defendant if an injunction is issued." Northgate Assocs., LLLP v. N.Y. Credit Funding I, LLC, No. 1:08-cv-420, 2008 WL 3200630, at *6, 2008 U.S. Dist. LEXIS 59065, at *18 (M.D.N.C. Aug. 8, 2008). "[I]f a decided imbalance of hardship should appear in plaintiff's favor, then the likelihood-of-success [factor] is displaced. ..." Blackwelder, 550 F.2d at 195. Preliminary injunctive relief then will be granted if "the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus more deliberate investigation." Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953)). "But if the plight of the defendant [is] not...