Orengo Caraballo v. Reich

• Decision Date: 10 December 1993
• Docket Number: No. 93-5225,93-5225
• Citation: 11 F.3d 186
• Parties: Jose A. ORENGO CARABALLO; Wilfred Santiago Santiago; Comite De Apoyo A Los Trabajadores Agricolas (CATA), Appellants, v. Robert B. REICH, Secretary of Labor; Thomas Hill, Regional Administrator of the Employment and Training Administration, United States Department of Labor; United States Department of Labor; Immigration & Naturalization Service; Janet Reno, United States Attorney General, Appellees, S & A Chaissan and Sons; W.G. Minard & Sons; Minard Farms, Inc.; Stanley Orchards; W.H. Walker and Sons; Dembroski Orchards, Inc., Intervenor-Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 186

11 F.3d 186

304 U.S.App.D.C. 142

Jose A. ORENGO CARABALLO; Wilfred Santiago Santiago Comite De Apoyo A Los Trabajadores Agricolas (CATA), Appellants, v. Robert B. REICH, Secretary of Labor; Thomas Hill, Regional Administrator of the Employment and Training Administration United States Department of Labor; United States Department of Labor; Immigration & Naturalization Service; Janet Reno, United States Attorney General, Appellees S & A Chaissan and Sons; W.G. Minard & Sons; Minard Farms Inc.; Stanley Orchards; W.H. Walker and Sons; Dembroski Orchards, Inc., Intervenor-Appellees.

No. 93-5225.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 8, 1993.

Decided Dec. 10, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 92cv02863).

Dan Getman argued the cause for appellants. With him on the briefs were Bruce Goldstein and Shelley Davis.

Harry L. Sheinfeld, Counsel, U.S. Dept. of Labor, argued the cause for appellees. With him on the brief were J. Ramsey Johnson, U.S. Atty., John D. Bates, R. Craig Lawrence and Thomas S. Rees, Asst. U.S. Attys.

On the brief for intervenor-appellees, S & A Chaissan and Sons, et al., were Thomas E. Wilson and Christopher A. Weals.

Before WALD, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellants, two migrant farmworkers, Jose A. Orengo Caraballo and Wilfred Santiago Santiago, and an organization supporting farmworkers, Comite De Apoyo A Los Trabajadores Agricolas (collectively "CATA"), appeal from the district court's entry of summary judgment for appellees, the Department of Labor, the Department of Justice, and the Immigration and Naturalization Service (collectively "DOL" or "Department") ¹ in Orengo Caraballo v. Reich, No. 92-2863, 1993 WL 542456 (D.D.C. June 30, 1993).

The centerpiece of this case is a fairly complicated loan arrangement through which Jamaican migrant farmworkers receive loans to cover travel expenses for their journey from Kingston, Jamaica to apple orchards in New York for seasonal employment. Appellants had filed an administrative complaint with the Secretary of Labor, requesting that the DOL require New York apple growers to provide similar travel advances and arrangements for U.S. migrant farmworkers who must travel from Puerto Rico to the growers' orchards for work.

The U.S. farmworkers alleged that the growers are required under the temporary foreign worker certification program, or "H-2A" program, 8 U.S.C. Secs. 1101(a)(15)(H)(ii)(a), 1184(c) & 1188; 20 C.F.R. Part 655, to provide these travel benefits to U.S. workers, because the growers are "collaborating" with third parties providing advance benefits to inbound Jamaican workers. The Department agreed that the growers must extend "no less than the same benefits" to domestic workers as are afforded foreign workers, 20 C.F.R. Sec. 655.102(a) (1993), and that, in particular, growers "shall advance transportation and subsistence costs ... to [domestic] workers ... when such benefits are extended to [foreign] H-2A workers," id. at Sec. 655.102(b)(5)(i). Letter from Lynn Martin, Secretary of Labor, to Bruce Goldstein, Farmworker Justice Fund, Inc. ("FJF") (Oct. 9, 1991) (with Enclosure of DOL Response to FJF Complaint), reprinted in Joint Appendix ("J.A.") at 2. However, it decided that the growers' "collaboration" in the current loan scheme did not constitute an "advance" of transportation costs to Jamaican workers, because the growers do not bear any "risk of loss" in the event that the Jamaican workers default on their loan obligations. The DOL concluded that in the case of this loan scheme, the growers' "collaboration" with third parties is insufficient to trigger any obligation under the H-2A program on the part of the growers to advance transportation costs to domestic workers. It denied the complaint in part, requiring only that the growers offer to provide travel arrangements for U.S. workers and cooperate with any domestic third parties willing to offer a similar loan arrangement to U.S. workers, while declining to require that the growers themselves advance travel costs to domestic workers.

The U.S. farmworkers brought an action in district court challenging the Secretary of Labor's final determination under Sec. 706 of the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 706(2)(A). The district court held that the DOL's reliance on the risk of loss standard was both rational and consistent with written regulations, and that the application of the risk of loss standard in deciding petitioners' complaint was neither arbitrary capricious, nor otherwise contrary to law. CATA appeals from the district court's entry of summary judgment in favor of the appellees. For reasons set forth below, we affirm the district court.

I. REGULATORY BACKGROUND

Under the H-2A program, established by the Immigration and Nationality Act, Pub.L. No. 82-414, 66 Stat. 163 (1952), as amended by the Immigration Reform and Control Act of 1986 ("IRCA"), Pub.L. No. 99-603, Sec. 301, 100 Stat. 3359, 3411 (codified at 8 U.S.C. Secs. 1101(a)(15)(H)(ii)(a), 1184(c) & 1188), employers who are unable to find sufficient U.S. agricultural labor may apply for permission to recruit and employ foreign workers for temporary employment in the United States. In order for the Attorney General (via her designate, the Commissioner of the Immigration and Naturalization Service, 8 C.F.R. Sec. 100.2) to approve such a request for alien importation under the H-2A program, the employer must first petition the Secretary of Labor to certify that:

(A) 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

(B) 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.

8 U.S.C. Sec. 1188(a). See id. at Sec. 1188(c)(1). The H-2A program is thus designed to balance two competing interests: "to assure [employers] an adequate labor force on the one hand and to protect the jobs of citizens on the other." Rogers v. Larson, 563 F.2d 617, 626 (3d Cir.1977) (footnote omitted), cert. denied and appeal dismissed, 439 U.S. 803, 99 S.Ct. 57, 58 L.Ed.2d 95 (1978). See Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir.1977), cert. denied, 436 U.S. 945, 98 S.Ct. 2846, 56 L.Ed.2d 786 (1978).

In order to ensure that there is an actual labor shortage, employers are required to recruit U.S. workers by circulating job offers through the United States Employment Service system, 29 U.S.C. Secs. 49-49l-1, an interstate network using state employment services to communicate job opportunities throughout the United States, and independently to engage in "positive recruitment efforts within a multi-state region of traditional or expected labor supply," 8 U.S.C. Sec. 1188(b)(4). See 20 C.F.R. Sec. 655.105 (1993). The Regional Administrator of the Employment and Training Administration of the Department of Labor will certify that the employer may hire sufficient temporary foreign workers to fill remaining needs based on whether the employer has made sufficient recruitment efforts and whether the employer has not adversely affected U.S. workers by offering foreign workers better conditions of employment than extended to U.S. workers. 20 C.F.R. Sec. 655.92 (1993). In making that determination, the Regional Administrator is guided by the following regulations. Generally,

[t]he employer's job offer to U.S. workers shall offer the U.S. workers no less than the same benefits, wages, and working conditions which the employer is offering, intends to offer, or will provide to [foreign] H-2A workers. Conversely, no job offer may impose on U.S. workers any restrictions or obligations which will not be imposed on the employer's H-2A [foreign] workers.

Id. at Sec. 655.102(a). Similarly, on the level of recruitment, the employer's efforts to recruit U.S. workers "shall be no less than ... the kind and degree of recruitment efforts which the potential H-2A employer made to obtain H-2A workers." Id. at Sec. 655.105(a). "[I]f the worker completes 50 percent of the work contract period," the employer must also reimburse the worker for transportation costs incurred in traveling from the place of recruitment to the place of employment (i.e., "inbound" travel) and pay for certain return transportation costs (i.e., "outbound" travel). Id. at Secs. 655.102(5)(i) & (5)(ii).

Specifically with respect to inbound travel advances, the original regulations promulgated in 1978 additionally provided:

if the employer intends to advance transportation costs to foreign workers either directly or indirectly (by having them paid by the foreign government involved), the employer must offer to advance the transportation costs of U.S. workers.

43 Fed.Reg. 10,306, 10,314 (1978) (codified at 20 C.F.R. Sec. 655.202(a) (amended 1987)). When issuing these regulations the DOL explained:

Employers will be required to offer and pay advance transportation and subsistence costs to U.S. workers if, and to the same extent that, foreign workers receive such advances directly from the employer or indirectly from any person, agency or other entity which is collaborating with the employer.

Id. at 10,308. The current H-2A regulations concerning travel advances were promulgated pursuant to the IRCA in 1987 and contain language somewhat different from the original regulations which were in effect until 1986. In particular, the current regulations omit specific reference to indirect travel advances:

The employer shall advance transportation and subsistence costs (or otherwise provide them) to workers when it is the prevailing practice of non-H-2A agricultural employers [i.e., employers of U.S. agricultural workers] in...