VIRGINIA AGR. GROWERS ASS'N, INC. v. Donovan

Decision Date22 August 1984
Docket Number83-0147-D.,Civ. A. No. 83-0146-D
PartiesVIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, et al., Defendants, and Sherman and Debra Paulk, Defendants-Intervenors. FREDERICK COUNTY FRUIT GROWERS ASSOCIATION, INC., et al., Plaintiffs, v. Raymond J. DONOVAN, Secretary of Labor, et al., and Cedrick Turner, Vincent Clark, and Gene R. Reeder, et al., Defendants-Intervenors.
CourtU.S. District Court — Western District of Virginia

Albert D. Misler, Morris Kletzkin, S. Steven Karalekas, Washington, D.C., W. Carrington Thompson, Clement & Wheatley, Danville, Va., William A. Johnston, Harrison & Johnston, Winchester, Va., for plaintiffs.

Dale M. Wiley, Va. Legal Aid Soc., Inc., Danville, Va., Edward J. Tuddenham, Inc., Migrant Legal Action Prog., Washington, D.C., Robert N. Moore, Farmworker Unit, Pine Tree Legal Assistance, Bangor, Maine, Robert Willis, NC Farm Worker's Legal Services, Raleigh, N.C., of counsel, for defendants-intervenors.

Thomas R. King, Jr., Asst. U.S. Atty., Roanoke, Va., Arthur Goldberg, Robert Damus, Dept. of Justice, Federal Programs Branch, Civil Div., Washington, D.C., for defendants.

MEMORANDUM OPINION

KISER, District Judge.

Plaintiff, Virginia Agricultural Growers Association, Inc. ("VAGA"), is an incorporated association of agricultural producers consisting primarily of tobacco growers located in Virginia. VAGA's sole place of business is in South Boston, Virginia. Plaintiff Frederick County Fruit Growers Association, Inc. ("FCFGA"), is a Virginia corporation with headquarters in Winchester, Virginia. FCFGA has 67 members who are small apple growers operating in Frederick County and surrounding counties in the Commonwealth of Virginia. The remaining Plaintiffs are cooperative associations whose members are apple growers located in the states of Maryland and New York. All Plaintiffs in these two consolidated actions employ significant numbers of domestic and temporary foreign farm-workers.

Defendant, Raymond J. Donovan, is the Secretary of the United States Department of Labor. Defendant United States Department of Labor ("DOL") is an executive department of the United States. Defendant-Intervenors are Cedrick Turner, Vincent Clark, Gene R. Reeder and Sherman and Debra Paulk, all of whom are domestic, migrant seasonal farmworkers.

These actions arise under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii) and 8 U.S.C. § 1184(c) and the regulations promulgated thereunder, including 8 C.F.R. § 214.2(h)(3) (1983) and 20 C.F.R. §§ 655.0 through 655.212 (1983). DOL is responsible for the issuance of labor certifications pursuant to these statutes and regulations in the operation of the temporary foreign labor program (hereinafter referred to as the "H-2 program").1 These cases also arise under the review provisions of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982).

I.

Plaintiffs brought this action in September, 1983, seeking invalidation of 20 C.F.R. § 655.207(b) as amended by Defendants on August 31, 1983, at 48 Fed.Reg. 40,168 (Sept. 2, 1983). Plaintiffs have asserted that subpart (b) is arbitrary and capricious in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706.

As amended on August 31, 1983, subpart (b) of Section 655.207, captioned "Adverse effect rates," provides:

(b)(1) For agricultural employment (except sheepherding) in the States listed in paragraph (b)(2) of this section, and for Florida sugar cane work, the adverse effect rate for each year shall be computed by adjusting the prior year's adverse effect rate by the percentage change (from the second year previous to the year previous) in the ES-202 report's aggregate average weekly wage rates for the appropriate group of agricultural workers. The appropriate group of workers shall be those U.S. agricultural workers employed by establishments in Standard Industrial Classification (SIC) Code Nos. 013, 016, 017, 019, 071 and 072 within that State (except that for purposes of age movement, but not actual adverse effect rates, New York, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont shall be considered as one State, and Maryland, Virginia, and West Virginia shall be considered as one State). The Administrator shall publish, in each calendar year, on a date he shall determine, adverse effect rates calculated pursuant to the paragraph (b) as a notice in the Federal Register.
(2) List of States. Arizona, Colorado, Connecticut, Florida (other than sugar cane work), Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Texas, Vermont, Virginia, and West Virginia. Other States may be added as appropriate.
(3) Transition. Notwithstanding paragraph (b)(1) and (2) of this section, the 1983 adverse effect rate shall be computed by adjusting the 1981 adverse effect rate by the percentage change in appropriate ES-202 average weekly wages from 1980 to 1982. The adverse effect rate for a State, set by this paragraph (b), shall be the highest of the rate computed by this methodology in paragraph (b) or the rate applied in the State in 1981 or 1982. Pursuant to the Order in NAACP, Jefferson County Branch v. Donovan, Civil Action No. 82-2315 566 F.Supp. 1202 (D.D.C. June 28, 1983), the 1982 adverse effect rate for West Virginia was $4.24.

48 Fed.Reg. 40,168, 40,175 (Sept. 2, 1983).2

The administrative action that is being challenged by Plaintiffs began when DOL published a Notice of Proposed Rulemaking in the Federal Register on July 22, 1983, 48 Fed.Reg. 33,684, pursuant to an order of the United States District Court for the District of Columbia in NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202 (D.D.C.1983), that required the DOL to establish a methodology for setting hourly agricultural adverse effect wage rates (AEWR) for the 1983 harvest season, and to publish those rates no later than July 29, 1983. See 48 Fed.Reg. 33,684.

The AEWR is a minimum hourly wage guarantee intended to neutralize any "adverse effect" on domestic workers occasioned by the employment of temporary foreign workers. DOL's authority to establish the AEWR is limited to establishing a wage rate necessary to preclude an "adverse effect" on the wages of similarly employed domestic workers. See 20 C.F.R. § 655.207. DOL has for decades set wage rates which growers must agree to pay domestic field workers before DOL will certify that the admission of aliens to work in the growers' field will not adversely affect the wages and working conditions of U.S. workers similarly employed. See 48 Fed.Reg. 33,684 (July 22, 1983) and 48 Fed. Reg. 40,168. Between 1968 and 1981 for most states and crops (and between 1975 and 1981 for Florida sugar cane), DOL computed adverse effect rates by adjusting the previous year's rates by the same percentage change as the annual percentage change (from the second preceding year to the preceding year) in average work rates for field and livestock workers as reflected by survey data of the United States Department of Agriculture (USDA). Id.

In April 1981, the USDA ceased conducting quarterly surveys of wages paid to field and livestock workers, and instead began conducting one annual survey of wages paid to such workers during one week in July. The first such annual survey was conducted in July, 1982. Farmworkers in four states sued DOL objecting to DOL's failure either to devise a new AEWR methodology or to set individual AEWRs for 1982. That litigation resulted in a court order requiring DOL to establish a new AEWR methodology and to set AEWRs for 1982 for the four states involved in that litigation (Maine, Vermont, Florida, and West Virginia). Bragg v. Donovan, No. 82-2361 (D.D.C. August 23, 1982). In response, DOL calculated a 1982 AEWR limited to the states involved in the suit and extended the 1981 AEWR into 1982 for all other states.3

DOL's continued failure to devise a new methodology for indexing AEWRs generally resulted in a second court order in another proceeding. NAACP, Jefferson County Branch v. Donovan, 566 F.Supp. 1202 (D.D.C.1983). Because more than two years had passed since USDA announced the curtailment of its quarterly survey, and because during that period DOL had failed to act, a second court order was issued giving DOL until July 29, 1983, to propose a methodology for setting AEWRs for the 1983 harvest season for all states in which H-2 workers would be employed.4

On July 22, 1983, in response to the court order in the NAACP case, DOL published a notice of proposed rulemaking which set forth for the first time the ES-202-based AEWR methodology. 48 Fed.Reg. 33,684 (July 22, 1983). This rule proposed to index the AEWR by the percentage change in the annual average weekly earnings statistic derived from the ES-202 program. Thus, to determine the 1984 AEWR for a particular state, DOL would apply the percentage change in the average weekly earnings statistic between 1982 and 1983 to the existing 1983 AEWR for that state. 48 Fed.Reg. 40,170 (September 2, 1983). Each year's average weekly earnings statistic is estimated from the data collected by the ES-202 program.

The ES-202 data are reported to state employment security agencies by those agricultural employers who are covered by unemployment insurance. All covered employers are required by law to file these reports. Since 1978, all agricultural firms employing at least 10 workers in 20 weeks or having a $20,000 quarterly payroll, are covered by unemployment insurance. Each state agency receives quarterly reports from each covered employer reflecting both the total wages paid every three months and the number of domestic workers employed on the 12th of each month by that employer. The state agencies, in turn, report this data to Bureau of Labor Statistics (BLS). 48 Fed.Reg. 33,685. The data collected by the ES-202 program are grouped according to Standard Industrial...

To continue reading

Request your trial
2 cases
  • Shoreham Co-op. Apple Producers Ass'n, Inc. v. Donovan
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 13, 1985
    ...566 F.Supp. 1202 (D.D.C.1983); Florida Fruit & Vegetable Ass'n v. Donovan, 583 F.Supp. 268 (S.D.Fla.1984); Virginia Agricultural Growers Ass'n v. Donovan, 597 F.Supp. 45 (W.D.Va.1984); Production Farm Management v. Donovan, No. 84-143 (D.Ariz. Oct. 17, 1984); see also NAACP, Jefferson Count......
  • Virginia Agr. Growers Ass'n, Inc. v. Donovan, s. 84-2245
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 3, 1985
    ...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 fo......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT