Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., Civil Action No. ELH-16-1015
| Decision Date | 12 September 2018 |
| Docket Number | Civil Action No. ELH-16-1015 |
| Parties | OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC., et al., Plaintiffs, v. DEPARTMENT OF HOMELAND SECURITY et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
R. Wayne Pierce, The Pierce Law Firm, LLC, Annapolis, MD, Leon R. Sequeira, Pro Hac Vice, Arlington, VA, for Plaintiffs.
Erez Reuveni, Joshua S. Press, United States Department of Justice, Glenn Matthew Girdharry, United States Department of Justice Office of Immigration Litigation, Kathryne Gray, Washington, DC, for Defendants.
This case concerns a challenge to the validity of certain rules and regulations issued by the Department of Homeland Security and the Department of Labor, pertaining to the H-2B visa program (the "Program"). The Program governs the temporary employment of non-immigrant foreign workers in non-agricultural businesses.
Plaintiffs are business entities who rely on the Program to obtain workers, as well as trade associations whose members rely on the Program to maintain their workforces. ECF 44 (Second Amended Complaint), ¶¶ 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, id. ¶¶ 18-22: the Department of Homeland Security ("DHS"); the United States Citizenship & Immigration Services ("USCIS"), a component agency of DHS that operates service centers for adjudicating H-2B visas; the Department of Labor ("DOL"); the Employment & Training Administration ("ETA"), a component agency of DOL that participates in promulgating legislative regulations to administer the H-2B program; and the Wage & Hour Division ("WHD"), another component of DOL, which promulgates legislative regulations "to enforce substantive requirements ... imposed by DOL on employers in the H-2B program." Id. ¶ 22. At times, I shall refer to the defendants collectively as the "Government."
Amici curiae are individual U.S. workers employed in occupations in which H-2B workers are also employed. See ECF 83 (). Collectively, amici support the Government.
The Second Amended Complaint (ECF 44), filed on July 5, 2016, is the operative complaint. Plaintiffs seek declaratory and injunctive relief, claiming that the regulations promulgated by defendants to administer the Program are unlawful because DHS, to which Congress has delegated responsibility for the Program, impermissibly redelegated substantial parts of the Program's standards and administration to DOL. See ECF 44.
The suit focuses on four sets of legislative rules related to the Program. ECF 92-1 at 13-14. First, it concerns the 2015 Interim Final Rule, Temporary Non-Agricultural Employment of H-2B Aliens in the United States , promulgated on April 29, 2015, at 80 Fed. Reg. 24042. That rule consists of two components: the "2015 Program Rules," published at 20 C.F.R. § 655, and the "2015 Enforcement Rules" (a subset of the 2015 Program Rules, often referred to separately), published at 29 C.F.R. § 503. See ECF 44, ¶ 2. Next, plaintiffs challenge the 2015 Final Rule, Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program , also promulgated on April 29, 2015, at 80 Fed. Reg. 24146. Id . This rule includes the "2015 Wage Rule," also published at 20 C.F.R. § 655. I shall refer to the 2015 Program Rules, the 2015 Wage Rule, and the 2015 Enforcement Rules collectively as the "2015 Rules."1 Last, plaintiffs challenge a number of subsections of what they term "DHS's Labor-Certification Regulations," published in 2008 at 8 C.F.R. §§ 214.1 and 214.2. I shall refer to these rules as the 2008 Labor-Certification Regulations.
In the lengthy Second Amended Complaint, plaintiffs outline the purpose of the Program, as follows, id. ¶ 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 Second Amended Complaint contains six counts. In Count I, plaintiffs assert that the 2015 Program Rules, the 2015 Wage Rule, and the 2008 Labor-Certification Regulations 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. § 2201.2
Following the submission of the voluminous Administrative Record (see ECF 46, ECF 87, ECF 129),3 the parties submitted cross-motions for summary judgment. Plaintiffs' motion (ECF 91) is supported by a memorandum of law (ECF 92-1) (collectively, "Plaintiffs' Motion"), and exhibits.4 Defendants filed a combined opposition to Plaintiffs' Motion, along with their own motion for summary judgment (ECF 102), supported by a Memorandum of Law. ECF 102-1 (collectively, "Defendants' Motion"). Thereafter, plaintiffs filed a combined opposition to Defendants' Motion and reply. See ECF 111-1 ("Plaintiffs' Reply").5 Defendants also replied. ECF 113 ("Defendants' Reply"). And, amici submitted a memorandum of law in opposition to Plaintiffs' Motion. ECF 105 ("Amici Opposition").
The Court held oral argument on August 14, 2018. ECF 122.6 Following the hearing, the Court invited limited supplemental briefing. ECF 121. Supplemental briefing was submitted by amici (ECF 123), plaintiffs (ECF 124), and the Government (ECF 125). The transcript for the motions hearing is docketed at ECF 126.
For the reasons that follow, I shall grant Defendants' Motion and deny Plaintiffs' Motion.
In 1952, as part of the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended, 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. Until 1986, one program existed for all temporary foreign workers. "Congress decided, however, that the earlier program did not ‘fully meet the need for an efficient, workable and coherent program that protect[ed] the interests of agricultural employers and workers alike’ and therefore amended the INA as part of the Immigration Reform and Control Act of 1986 to provide for two separate programs: the H-2A program for agricultural workers and the H-2B program for non-agricultural workers." Bayou Lawn & Landscape Servs. v. Johnson , 173 F. Supp. 3d 1271, 1276 (N.D. Fla. 2016) (quoting H.R. Rep. No. 99-682, pt. 1, at 80); see also Immigration Reform and Control Act of 1986 ("IRCA"), Pub. L. No. 99-603, § 301(a), 100 Stat. 3359, 3411 (codified at 8 U.S.C. § 1101(a)(15)(H)(ii)(a) - (b) ).
The H-2B visa program permits U.S. employers to recruit 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) ; Louisiana 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 statute identifies the Attorney General as the person responsible for determining whether to issue an H-2B visa. See id. § 1184(c)(1). However, Congress transferred enforcement of immigration laws to the Secretary of DHS under the Homeland Security Act of 2002. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 402, 116 Stat. 2135, 2178 (2002). Therefore, DHS is now charged with determining, "upon petition of the importing employer," whether to grant an H-2B visa "after consultation with appropriate agencies of the Government." 8 U.S.C. § 1184(c)(1).
Pursuant to the statutory direction to consult with appropriate agencies, DHS and its predecessors have for some 50 years looked to DOL for advice on whether United States workers capable of performing the desired temporary services or labor are available, and whether the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers. See, e.g. , 8 C.F.R. § 214.2(h)(6)(iii)(A). In 1968, DOL first issued formal regulations establishing standards and procedures for certifying employers' requests to import H-2 workers. See 33 Fed. Reg. 7570 (May 22, 1968). DOL later supplemented the regulations with informal, non-binding guidance letters, which were promulgated without notice and comment. See Comite de Apoyo a los Trabajadores Agricolas v. Solis , 09-240, 2010 WL...
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Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec.
...had standing and then found that their challenges to the 2008 Rules were time-barred. Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec. , 334 F. Supp. 3d 697, 713 (D. Md. 2018). In any event, the court found that Homeland Security could adopt the 2008 Rules under Chevron because ......
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