Williams v. Walsh

• Decision Date: 26 January 2022
• Docket Number: Civil Action No.: 21-1150 (RC)
• Citation: 581 F.Supp.3d 237
• Parties: Mary Jane WILLIAMS, et al., Plaintiffs, v. Martin J. WALSH, et al., Defendant.
• Court: U.S. District Court — District of Columbia

581 F.Supp.3d 237

Mary Jane WILLIAMS, et al., Plaintiffs,

v.Martin J. WALSH, et al., Defendant.

Civil Action No.: 21-1150 (RC)

United States District Court, District of Columbia.

Signed January 26, 2022

Carol L. Brooke, North Carolina Justice Center, Raleigh, NC, Clermont Ripley, Elizabeth Leiserson, Southern Migrant Legal Services, Nashville, TN, for Plaintiffs Mary Jane Williams, Mary Hester Lewis, Martin Johnson, Jr., Danielle Lee, New Orleans Workers’ Center for Racial Justice.

Gregory Scott Schell, Texas RioGrande Legal Aid, Inc., Palm Beach Gardens, FL, David Huang, Elizabeth Leiserson, Southern Migrant Legal Services, Nashville, TN, Douglas L. Stevick, Texas RioGrande Legal Aid, Inc., Saint Louis, MO, for Plaintiff Martha Icela Flores Gaxiola.

Joshua Samuel Press, U.S. Department of Justice Office of Immigration Litigation, Alessandra Faso, Office of Immigration Litigation, District Court Section, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SUPPLEMENTAL COMPLAINT , GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS , AND DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs, workers in Louisiana's seasonal crawfish processing industry and a workers’ rights organization, challenge a regulation that requires the Department of Labor ("DOL") to accept wage data from employers when setting the minimum wage an employer must offer in order to employ temporary foreign workers under the H-2B visa program. According to Plaintiffs, DOL's acceptance of employer wage data, as opposed to reliance on a federal government measure called the OES survey, depresses wages in the crawfish industry. And they say that the challenged regulation is invalid under the Administrative Procedure Act. 5 U.S.C. § 706. They seek vacatur of the regulation, as well as a preliminary injunction ordering DOL and the Department of Homeland Security ("DHS") to notify employers that the regulation is the subject of an ongoing lawsuit. In the alternative, Plaintiffs seek vacatur of past DOL wage determinations based on previous versions of a particular employer-submitted wage survey covering the Louisiana crawfish industry, because the survey allegedly is methodologically and statistically unsound in violation of DOL regulations and a related statute. Plaintiffs have also moved for leave to file a supplemental complaint to add claims related to new wage determinations based on the 2021 version of the Louisiana survey.

The Court lacks subject matter jurisdiction over the claims alleged in the original Complaint. Even if the Court were to vacate the challenged regulation, a different statute—which Plaintiffs have not challenged—would still require DOL to accept the employer submissions that allegedly harm Plaintiffs instead of the OES survey. The Court therefore is unable to redress Plaintiffs’ alleged injuries, and the plaintiffs do not have standing to challenge the regulation. As for the challenge to the past wage determinations, these have all expired, and cannot have any effect on Plaintiffs’ wages. This component of Plaintiffs’ lawsuit is therefore moot. The Court dismisses the claims in the original Complaint without prejudice for lack of subject matter jurisdiction, and denies Plaintiffs’ motion for a preliminary injunction for the same reason. However, the Court grants Plaintiffs’ motion to file a supplemental complaint alleging claims related to current wage determinations and concludes that it has subject matter jurisdiction over these claims.

II. BACKGROUND¹

A. Regulatory Framework

Under the H-2B visa program, if a United States employer cannot find enough United States workers to perform temporary non-agricultural unskilled work, it may obtain visas for the admission of foreign workers to fill the gap. When Congress authorized this program, it was mindful of the risk that unfettered admission of foreign workers willing to work at lower rates might harm United States workers by depressing wages in their fields. Therefore, Congress required employers seeking H-2B visas to show that their employment of foreign workers will not adversely affect the wages and working conditions of United States workers. Comité de Apoyo a los Trabajadores Agrícolas v. Perez , 774 F.3d 173, 177 (3d Cir. 2014) (" CATA III ") (citing 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1182(a)(5)(A)(i)(I)–(II) ); see also Compl. ¶ 24, ECF No. 1.

By delegation from the Department of Homeland Security, the Department of Labor holds responsibility for evaluating employer applications for H-2B visas in order to determine whether granting the requested employment of foreign workers will adversely affect United States workers. Compl. ¶ 25. This involves making two determinations: "(1) [that] qualified workers are not available in the United States to perform the employment for which foreign workers are sought, and (2) [that the foreign workers’] employment will not adversely affect wages and working conditions of similarly employed United States workers." CATA III , 774 F.3d at 177 (citing 8 C.F.R. § 214.2(h)(6)(iii)(A), (iv)(A) ). The wage an H-2B employer offers is central to this determination, both because the availability of United States workers will depend on whether the work pays a satisfactory wage and because admitting foreign workers willing to work for reduced wages may decrease the wages available to United States workers looking to work in the same industry. Thus, to be eligible to participate in the H-2B program, an employer must obtain from DOL a determination that the employer offers at least the "prevailing wage" for the relevant occupation. Compl. ¶ 26 (citing 20 C.F.R.§ 655.0(a)(2) ; id. § 655.10(a)).

Just how to calculate the prevailing wage for a particular occupation has been the subject of dispute between employers and workers for some time, and Congress, DOL, DHS, and the courts have all weighed in over the years. At first, DOL enlisted state agencies to calculate a prevailing wage for each occupation within their jurisdictions. CATA III , 774 F.3d at 178. In 2005, for occupations not subject to any collective bargaining agreement, DOL began to consider both employer-submitted, private wage surveys and the Bureau of Labor Statistics Occupational Employment Statistics ("OES")² survey. Id. According to Plaintiffs, surveys submitted by employers tend to suffer from methodological defects not present in the OES survey, including defining the relevant occupation too narrowly by using specific job duties as the determinative criterion and failing to ensure that all relevant employers have submitted wage data. Compl. ¶¶ 67–78. Therefore, the Plaintiffs allege that employer-submitted surveys indicate that the prevailing wage is lower than it is under the preferable OES method, and that DOL's consideration of employer-submitted wage surveys systematically depresses wages in H-2B industries. Id. ¶¶ 85–89.

A 2008 rule formalized DOL's practice of making prevailing wage determinations based either on employer-submitted surveys or the OES wage. Compl. ¶ 33 (citing 73 Fed. Reg. 78020, 78056 (Dec. 19, 2008) ). Though the notice of proposed rulemaking solicited comments generally, it did not permit comments on the specific topic of acceptance of employer-submitted surveys. Id. ¶ 29. A district court held that a separate feature of the 2008 rule—its division of OES data to identify OES wages for different "skill levels"—was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"). Comité de Apoyo a los Trabajadores Agrícolas v. Solis , No. 09-240, 2010 WL 3431761, at *19 (E.D. Pa. Aug. 30, 2010) (" CATA I "). DOL responded with a notice of proposed rulemaking, and ultimately a final rule in 2011 that, among other things, forbade employers from submitting their own surveys when an applicable OES wage (or another approved federal wage measure) was available. Compl. ¶ 37 (citing 76 Fed. Reg. 3452, 3465 (Jan. 19, 2011) ). DOL explained that the OES survey was "the most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-2B program." Id. ¶ 2 (citing 76 Fed. Reg. at 3465 ). But Congress refused to provide appropriations to implement this rule, so DOL continued to operate under the 2008 rule, including by differentiating among skill levels and by accepting employer-provided surveys. Id. ¶ 41. Yet again, the Eastern District of Pennsylvania ordered DOL to cease its skill-level differentiation. Comité de Apoyo a los Trabajadores Agrícolas v. Solis , 933 F. Supp. 2d 700, 711–12 (E.D. Pa. 2013) (" CATA II ").

In response, and without notice and comment, DOL and DHS published a joint Interim Final Rule, which, among other things, officially returned to the policy of requiring DOL to accept employer-provided surveys. At the same time it announced this 2013 rule, DOL and DHS solicited post-rule public comments on "the accuracy and reliability of private surveys," including "state-developed" surveys. Compl. ¶ 48 (quoting 78 Fed. Reg. 24047, 24055 (Apr. 24, 2013) ). But this rule, too, was quickly vacated; the Third Circuit concluded that DOL and DHS had not sufficiently explained their policy of approving employer survey submissions and held, based on the then-existing record, that the policy was arbitrary and capricious in violation of the APA. CATA III , 774 F.3d at 186–91. The Third Circuit ordered "that private surveys no longer be used in determining the mean rate of wage for occupations except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification." Id. at 191.

Again without notice and comment, DOL and DHS jointly published a new rule in 2015 at 80 Fed. Reg. 24146 (Apr. 29, 2015) (codified at 20 C.F.R. pt. 655) ("2015 Wage Rule"). Compl...