Virginia Agr. Growers Ass'n, Inc. v. Donovan, Civ. A. No. 83-0108-D.

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Citation579 F. Supp. 768
Docket NumberCiv. A. No. 83-0108-D.
PartiesVIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., Plaintiff, v. Raymond DONOVAN, Secretary U.S. Department of Labor, et al., Defendants.
Decision Date27 January 1984

579 F. Supp. 768

VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., Plaintiff,
v.
Raymond DONOVAN, Secretary U.S. Department of Labor, et al., Defendants.

Civ. A. No. 83-0108-D.

United States District Court, W.D. Virginia, Danville Division.

January 27, 1984.


579 F. Supp. 769

Morris Kletzkin, Albert D. Misler, Washington, D.C., W. Carrington, Thompson, Clement & Wheatley, Danville, Va., for plaintiff.

Chester A. Hurwitz, U.S. Dept. of Labor, Washington, D.C., Robert J. Barry, Asst. Atty. Gen., Richmond, Va., for VEC.

John P. Alderman, U.S. Atty., Roanoke, Va., for defendants.

Robert N. Moore, Virginia Farm Workers Legal Assistance Project, Belle Haven, Va., Robert Willis, North Carolina Farm Worker Legal Services, Newton Grove, N.C., Dale M. Wiley, Virginia Legal Aid Society, Danville, Va., for intervenors.

MEMORANDUM OPINION

KISER, District Judge.

This action was instituted by Plaintiff, Virginia Agricultural Growers Association, Inc. (VAGA) on July 20, 1983, against Raymond S. Donovan, Secretary of Labor (DOL) and Ralph C. Cantrell, Commissioner of the Virginia Employment Commission (VEC). Pursuant to this Court's Order of October 5, 1983, permission was granted for the intervention of seven United States migrant farmworkers in this case. VAGA is an association of approximately 216 agricultural producers in southside Virginia, primarily engaged in the production of tobacco. The association was formed in 1979.

Plaintiff seeks declaratory and injunctive relief against the governmental Defendants. This action involves what has been referred to as the H-2 labor program and, specifically, § 214 of the Immigration and Nationality Act, 8 U.S.C. § 1184, and § 101(a)(15)(H)(ii), 8 U.S.C. § 1101, et seq. of that Act (INA). The Plaintiff alleges that the United States Department of Labor regulation appearing at 20 C.F.R. § 655.203(e) (the 50% rule) was promulgated by DOL without appropriate statutory or regulatory authority. Plaintiff further contends that the 50% rule is an unreasonable regulation, is arbitrary, and capricious and that its enforcement will defeat, and runs contrary to the purposes of Section 214 of the INA.1 The 50% rule is part of a

579 F. Supp. 770
regulatory scheme set in place by the INA which establishes regulations to be followed by employers who seek to use temporary or seasonal foreign workers

Defendant Donovan's Motion for Summary Judgment in this action was denied on November 1, 1983. The case was tried without a jury on November 21-22, 1983, in Danville, Virginia.

The issues thus before this Court are: (1) does the DOL have the legal authority to promulgate the 50% rule; and (2) is the regulation arbitrary, capricious or an abuse of discretion?

I. The Statutory and Regulatory Framework

The admission of foreign workers into the United States to perform temporary labor is accomplished through a multitiered administrative process established by the INA, 8 U.S.C. § 1101, et seq. The INA defines as non-immigrant as a person: "... having a residence in a foreign country which he has no intention of abandoning ... who is coming temporarily to the United States to perform temporary services 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).

The conditions for admission to the United States under § 1101(a)(15)(H)(ii) (the H-2 program) are established by the Attorney General, pursuant to 8 U.S.C. § 1184(a) which provides, in pertinent part, that: "The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe ...."

The INA further requires the Attorney General to consult with the appropriate agencies of the Government prior to a determination on an employer's petition for the importation of temporary nonimmigrant alien workers:

(c) The question of importing any alien as a nonimmigrant under section 1101(a)(15)(H) or (L) in any specific case or specific cases shall be determined by the Attorney General, after consultation with appropriate agencies of the Government, upon petition of the importing employer. Such petition shall be made and approved before the visa is granted. The petition shall be in such form and contain such information as the Attorney General shall prescribe. The approval of such a petition shall not, of itself, be construed as establishing that the alien is a nonimmigrant. 8 U.S.C. § 1184(c).

As a second step in this process, the Immigration and Naturalization Service (INS), as the Attorney General's delegated agent in this program, has promulgated regulations for the admission of temporary workers under the H-2 program. These regulations promulgated by the INS incorporate DOL into this administrative scheme by requiring applications by employers who wish to utilize aliens under the H-2 program to be accompanied by:

either a certification from the Secretary of Labor or his designated representative stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed, or a notice that such certification cannot be made.... If there is attached to the petition a notice from the Secretary of Labor or his designated representative that certification cannot be made, the petitioner shall be permitted to present countervailing evidence that qualified persons in the United States are not available and that the employment policies of the Department of Labor have been observed. All such evidence submitted will be considered in the adjudication of the petition. 8 C.F.R. § 214.2(h)(3).

In response to this delegated authority, the DOL has in turn promulgated regulations relating to its role in the H-2 program, including the challenged regulation

579 F. Supp. 771
in this case, 20 C.F.R. § 655.203(e) which provides in pertinent part, that
From the time the foreign workers depart for the employer's place of employment, the employer will provide employment to any qualified United States worker who applies to the employer until fifty percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed. In addition, the employer will offer to provide housing, and the other benefits, wages, and working conditions required by § 655.202, to any such United States worker.

The DOL regulation is part of the temporary labor certification application which includes certain assurances made by the employer at the time of certification that qualified persons in the United States are not available. One of these assurances is that the employer will provide employment to any qualified United States worker who applies to that employer until fifty percent of the contract period under which the foreign worker was hired, has elapsed—hence, the 50% rule.

In addition, in order to enforce compliance with the assurances made by an employer wishing to participate in the H-2 program, the DOL has promulgated a regulation at 20 C.F.R. § 655.210(a) which provides, in pertinent part, that:

(a) If, after the granting of a temporary labor certification, the RA Regional Administrator has probable cause to believe that an employer has not lived up to the terms of the temporary labor certification, the RA shall investigate the matter. If the RA concludes that the employer has not complied with the terms of the labor certification, the RA may notify the employer that it will not be eligible to apply for a temporary labor certification in the coming year.

Thus, this three-tiered regulatory scheme establishes a program by which United States agricultural producers can supplement their domestic labor force with nonimmigrant alien workers when it has been determined, in accordance with these regulations and procedures, that qualified United States workers are not available and the importation of such workers will not adversely affect those United States workers similarly employed.

II. Facts In This Case

Before turning to the facts which are the basis of this lawsuit, I believe it is necessary to establish why VAGA needs to utilize the H-2 program. Therefore, it is necessary to review generally the operations of the tobacco farmer. According to testimony at trial, the tobacco-growing season is as follows: in January, February, and March, the farmer is in the planning stage, with seeding of tobacco beds occurring in February; in April the farmer prepares to start planting and the actual transplanting from the beds takes place which requires additional labor (such as H-2 workers); in May and June additional labor is also needed as cultivating of the crop occurs; finally, in July the farmer harvests the crop which must be done as the leaves mature or the crop is lost. Thus, July is also a critical period when additional labor is required.

In response to this need for additional labor, VAGA undertakes recruitment in early January for farm workers whose employment would commence in late April. The recruitment program is initiated both independently and through the Virginia State Employment Service facilities, acting as agents for the DOL. Despite these recruitment efforts, sufficient numbers of workers residing in the southside Virginia area and those workers available through the Interstate Clearance System have not been able to meet VAGA's seasonal labor requirements. Accordingly, VAGA has turned to the H-2 program to supplement its seasonal labor requirements and has imported Mexican workers to satisfy their labor shortage.

On January 31, 1983, Plaintiff VAGA filed a job order with the Defendant VEC for an April 25, 1983, date of need (planting). The Plaintiff filed a second job order with the VEC on April 15, 1983. These job

579 F. Supp. 772
orders are the essential first step to obtaining authorization from the...

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5 practice notes
  • Appalachian Power Co. v. State Tax Dept. of West Virginia, No. 22795
    • United States
    • Supreme Court of West Virginia
    • 8 Diciembre 1995
    ...all interest [sic ] persons were given notice and opportunity to comment[.]" Virginia Agricultural Growers Ass'n, Inc. v. Donovan, 579 F.Supp. 768, 773 (W.D.Va.1984), aff'd sub nom. Virginia Agric. Growers Ass'n v. U.S. Dept. of Labor, 756 F.2d 1025 (4th Cir.1985). See also Robertson v......
  • Murray Energy Corp. v. Steager, No. 18-0018
    • United States
    • Supreme Court of West Virginia
    • 29 Abril 2019
    ...given notice and opportunity to comment[.]’ " Id . at 592, 466 S.E.2d at 443 (quoting Va. Agr. Growers Ass’n, Inc. v. Donovan , 579 F.Supp. 768, 773 (W.D. Va. 1984) ). Stakeholder involvement in development of the methodology casts a pronounced pall over a subsequent legal challenge, a......
  • St. James Hosp. v. Heckler, No. 83 C 2773.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 27 Enero 1984
    ...purpose statement. The regulation is arbitrary and capricious and does not comport with the requirements of the Medicare statute. The 579 F. Supp. 768 matter is remanded to the Secretary for further consideration in accord with this --------Notes: 1 42 C.F.R. § 405.452(b)(1)(ii) provides: (......
  • VIRGINIA AGR. GROWERS ASS'N, INC. v. Donovan, Civ. A. No. 83-0146-D
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 22 Agosto 1984
    ...to send certified copies of this Order to all counsel of record. --------Notes: 1 See Virginia Agr. Growers Ass'n, Inc. v. Donovan, 579 F.Supp. 768 2 The 1983 adverse effect rates set by Defendants for the enumerated states are: F SUPP (84) 5156 State AEWR Arizona $4.22 Colorado (1) Connect......
  • Request a trial to view additional results
5 cases
  • Appalachian Power Co. v. State Tax Dept. of West Virginia, No. 22795
    • United States
    • Supreme Court of West Virginia
    • 8 Diciembre 1995
    ...all interest [sic ] persons were given notice and opportunity to comment[.]" Virginia Agricultural Growers Ass'n, Inc. v. Donovan, 579 F.Supp. 768, 773 (W.D.Va.1984), aff'd sub nom. Virginia Agric. Growers Ass'n v. U.S. Dept. of Labor, 756 F.2d 1025 (4th Cir.1985). See also Robertson v......
  • Murray Energy Corp. v. Steager, No. 18-0018
    • United States
    • Supreme Court of West Virginia
    • 29 Abril 2019
    ...given notice and opportunity to comment[.]’ " Id . at 592, 466 S.E.2d at 443 (quoting Va. Agr. Growers Ass’n, Inc. v. Donovan , 579 F.Supp. 768, 773 (W.D. Va. 1984) ). Stakeholder involvement in development of the methodology casts a pronounced pall over a subsequent legal challenge, a......
  • St. James Hosp. v. Heckler, No. 83 C 2773.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 27 Enero 1984
    ...purpose statement. The regulation is arbitrary and capricious and does not comport with the requirements of the Medicare statute. The 579 F. Supp. 768 matter is remanded to the Secretary for further consideration in accord with this --------Notes: 1 42 C.F.R. § 405.452(b)(1)(ii) provides: (......
  • VIRGINIA AGR. GROWERS ASS'N, INC. v. Donovan, Civ. A. No. 83-0146-D
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 22 Agosto 1984
    ...to send certified copies of this Order to all counsel of record. --------Notes: 1 See Virginia Agr. Growers Ass'n, Inc. v. Donovan, 579 F.Supp. 768 2 The 1983 adverse effect rates set by Defendants for the enumerated states are: F SUPP (84) 5156 State AEWR Arizona $4.22 Colorado (1) Connect......
  • Request a trial to view additional results

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