Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., Civil Action No. ELH-16-1015

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander United States District Judge
Docket NumberCivil Action No. ELH-16-1015
Decision Date27 July 2017


Civil Action No. ELH-16-1015


July 27, 2017


This Memorandum Opinion resolves a motion to supplement the administrative record in connection with a suit challenging, inter alia, the authority of two federal departments — the Department of Labor and the Department of Homeland Security — to issue jointly certain regulations pertaining to the H-2B visa program (the "Program"). The Program governs the temporary employment of nonimmigrant aliens.

Plaintiffs are trade associations whose members rely on the Program to obtain workers, as well as business entities that utilize the Program. Id., ¶¶ 12-17. In particular, they are Outdoor Amusement Business Association, Inc.; Maryland State Showmen's Association, Inc.; The Small and Seasonal Business Legal Center; Lasting Impressions Landscape Contractors, Inc.; Three Seasons Landscape Contracting Services, Inc.; and New Castle Lawn & Landscape, Inc. They have sued the following defendants: the Department of Homeland Security ("DHS"); the United States Citizenship & Immigration Services ("USCIS"), a component agency of DHS; the Department of Labor ("DOL"); the Employment & Training Administration ("ETA"), a component agency of DOL; and the Wage & Hour Division ("WHD"), another component of DOL.

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The Second Amended Complaint (ECF 44, "SAC"), filed on July 5, 2016, is the operative complaint. In the SAC, plaintiffs outline the purpose of the Program, as follows, ECF 44, ¶ 26:

Since 1952, the purpose of the temporary employment H visas, including the H-2B program, has been to alleviate U.S. labor shortages for temporary work and provide nonimmigrant alien labor to fill those temporary or seasonal positions. The H-2B program protects the interests of both U.S. non-agricultural workers and employers, as well as the U.S. economy as a whole, through the preservation of jobs, work opportunities, and employers in the United States. The H-2B program is a legally-authorized source of employees for difficult-to-fill temporary positions, and supports the employment of countless other U.S. workers whose jobs rely on the temporary work performed by foreign workers.

The SAC, which is over 40 pages in length, contains six counts. In Count I, plaintiffs assert that certain rules and regulations, discussed infra, exceed defendants' statutory authority, citing 5 U.S.C. §§ 558 and 706(2)(C). Count II challenges the disputed regulations as arbitrary and capricious, citing 5 U.S.C. § 706(2)(A). In Count III, plaintiffs assert that the regulations are unconstitutional and violate 5 U.S.C. § 706(2)(B). Count IV is titled "Compulsion of Agency Action Unlawfully Withheld." It is predicated on 5 U.S.C. § 706(1). Count V is titled "Mandamus," pursuant to the Mandamus Act, 28 U.S.C. § 1361, and the All Writs Act, 28 U.S.C. § 1651. Finally, Count VI seeks a declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.

Defendants submitted notice of the filing of the administrative record, which consists of almost 3,800 pages. ECF 46.1 Thereafter, defendants filed a "Notice of Filing of Corrected Certified Index" (ECF 53), containing three corrections. Plaintiffs subsequently filed a "Motion To Strike And Correct Record Certification, Motion To Complete And Supplement The Record, And Motion For Discovery" (ECF 60), supported by an amended memorandum of law (ECF 61-

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1) (collectively, "Motion" or "Motion to Supplement"), and numerous exhibits. ECF 60-2 to ECF 60-19; ECF 61-2; ECF 61-4.2 Defendants oppose the Motion (ECF 69, "Opposition"), supported by exhibits, docketed collectively at ECF 69-1. Plaintiffs have replied (ECF 73, "Reply"), supported by an exhibit. ECF 70-1.3

No hearing is necessary to resolve the Motion to Supplement. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion in part and deny it in part.

I. Factual and Procedural Summary4
A. H-2B Visa Program

In 1952, as part of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., "Congress created the nonimmigrant H-2 visa category for temporary agricultural and non-agricultural employment that did not require advanced education, skills, or training." ECF 44, ¶ 25. Thereafter, the Immigration Reform and Control Act of 1986 "redesignated the extant H-2 classification as the nonagricultural H-2B visa category, and moved agricultural labor into a newly-created H-2A category." Id. The H-2B visa program permits U.S. employers to recruit

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and hire foreign workers to fill temporary unskilled, non-agricultural positions for which domestic workers cannot be located. See 8 U.S.C. § 1101(a)(15)(H)(ii)(b); La. Forestry Ass'n, Inc. v. Sec'y of Labor, 745 F.3d 653, 658 (3d Cir. 2014).

An H-2B employee is defined as a nonimmigrant alien "having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country...." 8 U.S.C. § 1101 (a)(15)(H)(ii)(b). The INA charges DHS with determining, "upon petition of the importing employer," whether to grant an H-2B visa "after consultation with appropriate agencies of Government." 8 U.S.C. § 1184(c)(1); see also ECF 46, ¶ 28.

Pursuant to certain DHS labor certification regulations, issued in 2008, DHS asked DOL to determine whether (1) qualified workers in the United States are available to fill an employer's job and whether (2) the alien's employment will adversely affect wages and working conditions of similarly employed U.S. workers. 8 C.F.R. § 214.2(h)(6)(iii)(A). If, after reviewing an employer's job offer and recruitment efforts, the Secretary of Labor determines that U.S. workers are not available to fill the jobs described in the employer's application and that the offered terms of work will not adversely affect similarly employed U.S. workers, DOL issues a "temporary labor certification" that the employer must attach to the H-2B visa petition it submits to DHS. 8 C.F.R. §§ 214.2(h)(6)(iii)(C) and 214.2(h)(6)(iv)(A). No petition for H-2B visas may be issued by DHS without an approved labor certification from DOL. Id.

On April 29, 2015, DHS and DOL jointly issued revised H-2B regulations: the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, 80 Fed. Reg. 24,042 (Apr. 29, 2015) ("Interim Final Rule"), and the Wage Methodology for the Temporary

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Non-Agricultural Employment H-2B Program, 80 Fed. Reg. 24,146 (Apr. 29, 2015) ("Final Rule"). ECF 44, ¶ 2. Collectively, I shall refer to these rules as the "2015 Rules." Both the Interim Final Rule and the Final Rule are in effect.5

The 2015 Rules replace the prior H-2B regulations published on December 19, 2008, at 73 Fed. Reg. 78,020 ("2008 Final Rule"). The 2008 Final Rule was regarded as "vulnerable to challenges by employers in current and future enforcement proceedings based on the ground that the regulations...are void because DOL exceeded its statutory authority in unilaterally issuing the 2008 rule." See 80 Fed. Reg. at 24,048-49. Among other things, various provisions of the 2008 Final Rule were invalidated by the United States District Court for the Eastern District of Pennsylvania in Comité de Apoyo a los Trabajadores Agrícolas v. Solis, No. 09-240, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010). See 80 Fed. Reg. at 24,046.

Plaintiffs contend that DHS and DOL violated the INA and the Administrative Procedure Act ("APA"), codified in various sections of 5 U.S.C., as well as the United States Constitution, by jointly issuing certain regulations with respect to the Program. ECF 44, ¶ 4; see also SAC Count I (id., ¶ 94) and Count III (id., ¶ 96). In particular, plaintiffs contend that DHS has impermissibly "redelegate[d]" its rulemaking authority to DOL by, inter alia, allowing DOL to undertake the initial review of the visa program applications. Id., ¶ 4; see also id., ¶ 35. Further, plaintiffs allege that, even if DHS has authority to structure the Program as it has, including by designating DOL as a consultant and relying on DOL's expertise, the challenged rules are an unreasonable exercise of that authority (Counts I-II of SAC). Id., ¶¶ 94-95.

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Plaintiffs contest the Interim Final Rule and the Final Rule. The rules establish "the process by which employers obtain a temporary labor certification from DOL for use in petitioning DHS to employ a[n H-2B] nonimmigrant worker," 80 Fed. Reg. at 24,042; "the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with application for temporary labor certification," id. at 24,146; and "enforcement procedures and remedies pursuant to DHS's delegation of enforcement authority to DOL." Id. at 24,046.

Specifically, the Interim Final Rule "expands the ability of U.S. workers to become aware of the job opportunities in question and to apply for opportunities in which they are interested" and "requir[es] that U.S. workers in corresponding employment receive the same wages and benefits as the H-2B workers." See 80 Fed. Reg. at 24,043. The regulations also provide additional protections to H-2B workers (such as guaranteed minimum hours and reimbursements for visa and transportation expenses) and to whistleblowers. See id. The Final Rule "set[s] the methodology by which DOL calculates the prevailing wages to be paid to H-2B workers and U.S. workers recruited in connection with applications for temporary labor certification." See 80 Fed. Reg. at 24146.6

In addition, plaintiffs challenge certain DHS regulations, "collectively referred to and identified ...as DHS's Labor-Certification Regulations." ECF 44, ¶ 2; see also id., ¶ 34; 8 C.F.R. § 214.2(h)(6). The...

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