United Farmworkers of America, Afl-Cio v. Chao
| Decision Date | 10 September 2002 |
| Docket Number | No. 01-CV-1356.,01-CV-1356. |
| Citation | 227 F.Supp.2d 102 |
| Parties | UNITED FARMWORKERS OF AMERICA, AFL-CIO; Farm Labor Organizing Committee, AFL-CIO; Juan Flores and Juan Ramirez, Plaintiffs, v. Elaine CHAO, Secretary of Labor, and U.S. Department of Labor, Defendants. |
| Court | U.S. District Court — District of Columbia |
David Palmer Dean, James & Hoffman, P.C., Washington, DC, for Plaintiffs.
Brian J. Sonfield, U.S. Attorney's Office, Washington, DC, for Defendants.
Plaintiffs are the United Farmworkers of America, AFL-CIO; Farm Labor Organizing Committee, AFL-CIO; and Juan Flores and Juan Ramirez, who are temporary foreign agricultural workers. They bring this action under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 553, 706(1), 706(A), to enjoin Defendants, Elaine Chao, Secretary of Labor, and the U.S. Department of Labor ("DOL") from adopting an interpretation of a regulation concerning announcement of the minimum rates that must be paid to foreign agricultural workers.
This matter is before the Court on the parties' motions for summary judgment. Upon consideration of the motions, oppositions, replies, the Motions Hearing held in this matter on August 19, 2002, and the entire record herein, for the reasons stated below, the Court finds that Defendants' Motion for Summary Judgment is granted in part and denied in part, and Plaintiffs' Motion is granted in part and denied in part.
This case concerns a dispute over DOL's interpretation of its regulation setting forth the minimum wage at which foreign temporary agricultural workers may be employed. That wage is known as the "adverse effect wage rate" or ("AEWR") and is published annually for each state by DOL.2
1. Statutory Context
DOL issues AEWRs under the Immigration and Naturalization Act of 1952 ("INA"), as amended by the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1188(a).
The INA establishes the "H-2A program," which governs admission of temporary foreign agricultural workers. Before an employer may hire foreign agricultural workers, the INA requires 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 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."3 Id.
DOL has adopted regulations to implement Congress's mandate prohibiting "adverse effects" on domestic wage rates. One of those regulations is the AEWR regulation in dispute in this case.
The AEWR regulation provides in full:
(a) Computation and publication of AEWRs. Except as otherwise provided in this section, the AEWRs for all agricultural employment (except for those occupations deemed inappropriate under the special circumstances provisions of § 655.93 of this part) for which temporary alien agricultural labor certification is being sought shall be equal to the annual weighted average hourly wage rate for field and livestock workers (combined) for the region as published annually by the U.S. Department of Agriculture (USDA) based on the USDA quarterly wage survey. The Director shall publish, at least once in each calendar year, on a date or dates to be determined by the Director, AEWRs for each State (for which USDA publishes regional data), calculated pursuant to this paragraph (a) as a notice or notices in the Federal Register.
20 C.F.R. § 655.107(a) (emphasis added).
In order to avoid "adverse effects" on domestic wages, the regulation requires that AEWRs at least equal the USDA agricultural wage rates. Id.; AFL-CIO v. Dole, 923 F.2d 182, 184 (D.C.Cir.1992) ().
B. Plaintiffs' Challenge to DOL's AEWR Policy
Plaintiffs' challenge to DOL's interpretation of the AEWR regulation concerns when during the year AEWRs must be published. Since the regulation was first adopted in 1987, DOL has always published the rates prior to commencement of the H-2A employment period, which begins in April and ends in October.
In 2001, DOL published AEWRs on August 2. DOL acknowledged that the publication was later than usual, but explained that the regulation does not require publication of the wage rates before December 31. See Declaration of Christopher T. Spear, Assistant Secretary for Policy, DOL, ¶ 5 ("Spear Decl."). DOL also explained that its delay was based on a Memorandum from the then-new Administration, and on the urging of certain Congress persons reviewing the H-2A program.4
Plaintiffs contend that DOL essentially changed its AEWR wage policy in 2001 by publishing AEWRs in August and by insisting that it may continue in future years to publish them as late as December 31. Specifically, Plaintiffs argue that the December 31 publication deadline is a change in policy because until new AEWRs for a given year are published, workers receive only the AEWRs for the previous year. Plaintiffs emphasize that as a result, the AEWRs paid for a given year will not "be equal to" the USDA rates for that year, as required by the regulation. Plaintiffs maintain that DOL must therefore follow its previous practice of publishing AEWRs for a given year prior to commencement of the H-2A employment period.
Under the APA, reviewing courts are to "hold unlawful and set aside" an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A court accords "substantial deference" to an agency's interpretation of its own regulations, Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986), but an agency's interpretation cannot be sustained if it is "`plainly erroneous or inconsistent with the regulation.'" Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (internal citations omitted); Loewendick & Sons, Inc. v. Reich, 70 F.3d 1291, 1294 (D.C.Cir.1995).
Courts are generally deferential to longstanding policies or statutory interpretations of an agency, and they must closely examine recent departures from such agency precedent. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).
Plaintiffs have asserted the following three claims under the APA. First, DOL did not follow the notice-and-comment provisions of the APA, 5 U.S.C. § 553, when it delayed publication of AEWRs in 2001 and stated that they could be published as late as December 31 in any given year. Second, Defendants' decision to wait until August 2001 to issue the 2001 AEWRs constituted "unreasonable delay" under the APA (Count 2). 5 U.S.C. § 706(1). Third, the reasons provided for the delay in 2001 were "arbitrary and capricious" (Count 3). 5 U.S.C. § 706(A).
Before turning to the merits of Plaintiffs' claims, the Court addresses two threshold issues raised by Defendants, namely mootness and ripeness.
DOL argues that the entire case is moot because Plaintiffs filed it to compel publication of the 2001 AEWRs, which were subsequently published in August of 2001.
Although Plaintiffs' most pressing concern was to compel publication of the 2001 AEWRs, they are also challenging in Count I DOL's departure from its policy of publishing, without notice and comment, the AEWRs prior to commencement of the H-2A employment period. Consequently, Count I is not moot.
However, Counts II and III, namely that the August 2001 AEWR publication was "unreasonable" and based on "arbitrary and capricious" reasons, are moot because they relate to the failure of DOL to timely publish AEWRs in 2001. Those AEWRs have now been published.
Plaintiffs contend that Counts II and III should not be dismissed as moot because they are the paradigmatic "capable of repetition, yet evading review."5 Plaintiffs argue that DOL might "unreasonably" delay publication of AEWRs in subsequent years and might rely on the same "arbitrary and capricious" reasons to do so.
With respect to Plaintiffs' fear that DOL could unreasonably delay AEWR publication in the future, that concern is fully encompassed in Plaintiffs' Count I, which is a challenge to DOL's departure from its pre-existing policy of publishing AEWRs before commencement of the H-2A employment period commences.
With respect to Plaintiffs' fear that DOL could again rely on arbitrary and capricious reasons to delay AEWR publication, Defendants have established that reliance on the Card Memorandum is not likely to recur.6 See Spear Decl. 6-7; Defs.' Reply at 12. Moreover, DOL's reliance on letters from members of Congress is not "arbitrary and capricious" as a matter of law. The Court cannot conclude that Congress never intended DOL to ever consider Congressional opinion when administering the H-2A program.7 Moreover, any such claim would have to be considered in its specific factual context.
Accordingly, the Court concludes that Counts II and III shall be dismissed as moot.
DOL argues that Count I is not "ripe." First it argues that there is no "new policy" to review because its interpretation is consistent with the plain language of the regulation. Second, it argues that even if its policy has shifted, it has not yet "sufficiently crystallized." See Defs.' Reply at 7. DOL has not, for example, announced a date certain on which all AEWRs will be published in the future, or specified the "circumstances which must occur before the AEWRs are issued." See Defs.' Opp'n to Pls.' Mot. Summ. J. at 4 (" "); Defs.' Mot. for Summ. J. at 13 (" ").
Ripeness involves an evaluation of "both the fitness of the issue for judicial decision and the hardship to the...
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