Virginia Agr. Growers Ass'n, Inc. v. Donovan, s. 84-2245
| Decision Date | 03 October 1985 |
| Docket Number | Nos. 84-2245,s. 84-2245 |
| Citation | 774 F.2d 89 |
| Parties | VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.; Virginia Carolina Agricultural Producers Association, Inc.; Frederick County Fruit Growers Association; Washington County Fruit Growers Association; Valley Growers Cooperative, Inc.; Mid-Hudson Growers Cooperative, Inc.; Northwest Growers Cooperative, Inc.; Niagara Orchards; K & W Farms; Gunnison Lakeshore Orchards; Forrence Orchards, Inc.; Northern Orchard Co., Inc.; Sullivan Orchards; Orchardale Fruit Farm; Al Gioia & Sons; Lamont Fruit Farm; Lake Ontario Fruit Sales, Inc.; Apple Acres, Appellees, v. Raymond J. DONOVAN, Secretary of Labor; United States Department of Labor, Appellants, and Sherman Paulk; Deborah Paulk; Cedrick Turner; Vincent Clark; Gene R. Reeder, Appellees. VIRGINIA AGRICULTURAL GROWERS ASSOCIATION INC.; Virginia Carolina Agricultural Producers Association, Inc.; Frederick County Fruit Growers Association; Washington County Fruit Growers Association; Valley Growers Cooperative, Inc.; Mid-Hudson Growers Cooperative, Inc.; Northwest Growers Cooperative, Inc.; Niagra Orchards; K & W Farms; Gunnison Lakeshore Orchards; Forrence Orchards, Inc.; Northern Orchards Co., Inc.; Sullivan Orchards; Orchardale Fruit Farm; Al Gioia & Sons; Lamont Fruit Farm; Lake Ontario Fruit Sales, Inc.; Apple Acres, Appellees, v. Cedrick TURNER; Vincent Clark; Gene R. Reeder, Appellants, and Raymond J. Donovan, Secretary of Labor; United States Department of Labor; Sherman Paulk; Deborah Paulk, Appellees. (L), 84-2246. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Mark Stern, Washington, D.C., Robert Moore (Edward J. Tuddenham, Hereford, Tex., Richard K. Willard, Washington, D.C., John P. Alderman, Roanoke, Va., Michael Kimmel, Washington, D.C., on brief), for appellants
S. Steven Karalekas, Washington, D.C. (Morris Kletzkin, Albert D. Misler, Friedlander, Misler, Friedlander, Sloan & Herz, Thomas E. Wilson, Charles, Karalekas, McCahill & Wilson, Washington, D.C., W. Carrington Thompson, Clement & Wheatley, P.C., Danville, Va., William A. Johnston, Harrison & Johnston, Winchester, Va., on brief), for appellee.
Before WINTER and CHAPMAN, Circuit Judges, and KNAPP, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.
The United States Department of Labor (the DOL) and defendant-intervenors, Cedrick Turner, et al., appeal from the District Court's order of August 22, 1984, 597 F.Supp. 45, holding (1) that the regulation promulgated by the DOL at 20 C.F.R. Sec. 655.207(b), 1 as amended by the DOL on August 31, 1983, and found at 48 Fed.Reg. 40.168 (September 2, 1982) and known as the Adverse Effect Wage Rate (AEWR), to be arbitrary and capricious and thereby invalid, and (2) directing the Secretary of Labor to promulgate an AEWR for the year 1983 pursuant to the rule-making provisions of the Administrative Procedure Act (APA, 5 U.S.C. Sec. 706) and consistent with the Court's opinion filed therein. We conclude that the District Court erred in denying the DOL's motion for summary judgment, and accordingly reverse.
The issues on appeal arise in two consolidated suits brought by certain associations and growers of various agricultural products in Virginia, Maryland, and New York, seeking to invalidate and have set aside the 1983 AEWR published by the DOL on September 2, 1983, and the methodology adopted by the DOL on that date for making annual adjustments to the AEWR for subsequent years.
In seeking injunctive and declaratory relief, plaintiffs specifically attack the adoption by the DOL of the methodology for adjusting the AEWR by utilizing data procured from what was designated as the ES-202 program. This program is a cooperative activity of the Bureau of Labor Statistics (BLS) and state employment security agencies. As part of their unemployment insurance programs, these state agencies receive reports from employers covered by unemployment insurance indicating, inter alia, the number of workers on the payroll, total wages, and taxable wages. The agencies, in turn, report quarterly to the BLS on the number of covered establishments, employment during the mid-week of each month, and total wages paid during the quarter. The wages are reported to the BLS using Standard Industrial Classification (SIC) codes, including categories of agricultural crop producers. Although the precise coverage of agricultural labor afforded by the data varies from state to state, it encompasses, at a minimum, employees of agricultural firms employing at least ten workers in twenty weeks and having a $20,000 quarterly payroll.
In response to the allegations of the complaints, the DOL moved for summary judgment on the ground that the full administrative record before the District Court for review satisfied the requirement that the agency had considered all relevant factors in discharging its rule-making responsibilities and had complied with the provisions of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706.
Subsequent to the District Court's denial of the DOL's renewed motion for summary judgment on May 17, 1984, a two-day trial was held by the Court, at which plaintiffs presented two witnesses, both of whom were consultants employed by them and whose testimony challenged the regulation and suggested alternatives. At the conclusion of the trial, the District Court issued the opinion and order, which is the subject of this appeal. The trial court concluded that "a" "[t]rial was necessary in order to determine whether the DOL considered all relevant factors and in order to discharge properly [the court's] duty to engage in 'substantial inquiry' as to whether the process employed by the DOL to reach its decision took into consideration all relevant factors."
On appeal the DOL argues that by conducting a de novo hearing to determine the issue presented, the District Court exceeded its limited function as a reviewing Court. The agency contends that its action was a reasonable exercise of its rule-making authority. Further the DOL urges that its position is supported by the administrative record and even the specific language of the District Court's Memorandum Opinion.
The trial court's conclusions must be tested in light of the record before it and the large body of case law touching every facet of review of administrative action by the courts.
The Supreme Court has emphasized that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). This court has observed that "de novo review is appropriate only in special circumstances where agency fact finding procedures are inadequate in an adjudicatory proceeding, or where issues not before an agency are raised in a proceeding to enforce nonadjudicatory agency action." United States v. Holcomb, 651 F.2d 231, 236 (4th Cir.1981), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). Neither of these two narrow exceptions to the general proscription of de novo review was present in this case. We believe that in holding a trial to determine whether the agency had considered all relevant factors, the District Court failed to observe the Supreme Court's declaration in Camp, supra, that if ...
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