Hispanic Affairs Project , et al v. Perez, et al

MOTION for Summary Judgment

D.D.C.March 10, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HISPANIC AFFAIRS PROJECT, et al., ) ) Plaintiffs, ) ) v. ) CIVIL NO. 15-1562-BAH ) THOMAS E. PEREZ, et al., ) ) Defendants. ) ) INTERVENOR-DEFENDANTS MOUNTAIN PLAINS AGRICULTURAL SERVICE AND WESTERN RANGE ASSOCIATION’S CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56, Intervenor-Defendants move for summary judgment on Plaintiffs’ APA challenge to the 2015 Rule for H-2A herders. See Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States (“2015 Rule”), 80 Fed. Reg. 62,958 (Oct. 16, 2015). Plaintiffs’ APA challenge rests on a number of misunderstandings or misrepresentations of the applicable statutory and regulatory structure of the H-2A program, in general, and the special procedures for the range production of livestock, in particular. The 2015 Rule was the result of extensive public comment and consideration of economic data and policy arguments on behalf of the worker-advocate community, employers of H-2A herders, businesses that rely on these livestock producers, outside industry groups like the American Sheep Industry and Farm Bureau Federation, and other third-party interested groups and individuals. In all, more than 500 separate comments were filed with the U.S. Department of Labor (“DOL”) as to the Notice of Proposed Case 1:15-cv-01562-BAH Document 99 Filed 03/10/17 Page 1 of 3 2 Rulemaking (“NPRM”). Plaintiffs, unhappy with DOL’s conclusions based on all of those comments, now seek to undo the rulemaking process through this action, attacking the 2015 Rule and the administration of the H-2A program by DOL and the Department of Homeland Security with respect to H-2A herders for allegedly permitting: (1) “work on a permanent basis”; (2) “a wage that falls to as low as $3 per hour”; and (3) work by herders that is “illegally broad.” Pltfs. Mot. for Summary Judgment at 1. Each of Plaintiffs’ arguments is factually and legally inaccurate, and Plaintiffs completely fail to state a valid APA claim with respect to the 2015 Rule. Intervenor-Defendants respectfully ask the Court to deny Plaintiffs’ Motion for Summary Judgment, to grant Intervenor-Defendants’ Cross-Motion for Summary Judgment, and to enter judgment against Plaintiffs and in favor of Intervenor-Defendants on all remaining counts of the Second Amended Complaint. DATED: March 10, 2017 CHRISTOPHER J. SCHULTE CJ LAKE, LLC By: s/ Christopher J. Schulte CHRISTOPHER J. SCHULTE CJ LAKE, LLC 525 Ninth Street, N.W. Suite 800 Washington, DC 20004 (202) 465-3000 cschulte@cj-lake.com Attorney for Defendants Mountain Plains Agricultural Service Western Range Association Case 1:15-cv-01562-BAH Document 99 Filed 03/10/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I certify that on March 10, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will provide electronic notice and an electronic link to all attorneys of record: /s/Christopher Schulte CHRISTOPHER J. SCHULTE CJ Lake, LLC Case 1:15-cv-01562-BAH Document 99 Filed 03/10/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HISPANIC AFFAIRS PROJECT, et al., ) ) Plaintiffs, ) ) v. ) CIVIL NO. 15-1562-BAH ) THOMAS E. PEREZ, et al., ) ) Defendants. ) ) INTERVENOR-DEFENDANTS MOUNTAIN PLAINS AGRICULTURAL SERVICE AND WESTERN RANGE ASSOCIATION’S MEMORANDUM OF LAW IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT CHRISTOPHER J. SCHULTE CJ LAKE, LLC By: s/ Christopher J. Schulte CHRISTOPHER J. SCHULTE CJ LAKE, LLC 525 Ninth Street, N.W. Suite 800 Washington, DC 20004 (202) 465-3000 cschulte@cj-lake.com DATED: March 10, 2017 Attorney for Defendants Mountain Plains Agricultural Service Western Range Association Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 1 of 41 i TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 I. BACKGROUND .........................................................................................................................2 A. Statutory and Regulatory History .........................................................................................2 B. Mendoza and the 2015 Rule ..................................................................................................5 C. Current Litigation ..................................................................................................................7 II. STANDARD OF REVIEW .......................................................................................................8 A. Summary Judgment on Administrative Record Review .......................................................8 B. APA and Agency Deference ...............................................................................................10 1. 706(2)(A) ........................................................................................................................10 2. 706(2)(C) .........................................................................................................................12 3. 706(2)(D) ........................................................................................................................13 4. Chevron and Auer Deference ..........................................................................................14 III. ARGUMENT ..........................................................................................................................14 A. H-2A Shepherds Are Employed on a Purely Temporary Basis .......................................14 1. The DOL and USCIS Regulations Limit H-2A Herder Employment ..........................14 2. The Permanent or “PERM” Visa Would Not Work for Herders ..................................18 B. DOL Acted Properly in Crafting an H-2A Wage Rate for Herders .................................20 1. The Hourly Rate and Workweek Calculations Were Reasonable ................................20 2. Setting a Higher Wage Would Destroy this Industry ...................................................25 C. Some Ability to Perform Limited On-Ranch Activities is Essential ................................27 D. The Relief Requested is Not Appropriate .........................................................................32 CONCLUSION ..............................................................................................................................33 Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 2 of 41 ii TABLE OF AUTHORITIES CASE LAW Agape Church, Inc. v. FCC & United States, 738 F.3d 397 (D.C. Cir. 2013). ...................................................................................................27 Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) ....................................................................................................9 Am. Fed’n of Gov’t Emps., AFL-CIO, Local 3669 v. Shinseki, 709 F.3d 29 (D.C. Cir. 2013) ......................................................................................................12 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008) ....................................................................................................13 Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243 (D.C. Cir. 2013) .............................................................................................. 10-11 Am. Wildlands v. Kemthorne, 530 F.3d 991 (D.C. Cir. 2008) ....................................................................................................11 Auer v. Robbins, 519 U.S. 452 (1997) ....................................................................................................................14 Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (1974) .....................................................................................................................11 Camp v. Pitts, 411 U.S. 138 (1973) ......................................................................................................................9 Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ....................................................................................................................12 City of Arlington, Tex. v. FCC, 133 S. Ct. 1863 (2013) ................................................................................................................12 Community Health Sys. v. Burwell, 113 F. Supp. 3d 197 (D.D.C. 2015) .............................................................................................14 Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 3 of 41 iii Cnty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) ..................................................................................................11 Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ......................................................................................................................9 Inv. Co. Inst. v. United States CFTC, 891 F. Supp. 2d 162 (D.D.C. 2012) ............................................................................................10 James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996) ......................................................................................................9 Kennedy for President Committee v. FCC, 636 F.2d 432 (D.C. Cir. 1980) ....................................................................................................16 Llacua v. Western Range Association, Case No. 15-cv-01889-REB-CBS (D. Colo.) ................................................................................8 Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) ....................................................................................................................10 Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011) ......................................................................................................................12 Mencia v. Allred, 808 F.3d 463 (10th Cir. 2015) .............................................................................................. 31-32 Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) .................................................................................................4, 5 Mendoza v. Perez, 72 F. Supp. 3d 168 (D.D.C. 2014) .............................................................................................4, 5 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................................10, 11 Nat’l Mining Ass’n v. Mine Safety & Health Admin., 116 F.3d 520 (D.C. Cir. 1997) ....................................................................................................13 * Pharm. Research & Mfrs. of Am. v. FTC, 44 F. Supp. 3d 95 (D.D.C. 2014) ........................................................................................ passim Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 4 of 41 iv Public Citizen, Inc. v. National Highway Traffic Safety Admin., 374 F.3d 1251 (D.C. Cir. 2004) ............................................................................................ 11-12 Sara Lee Corp. v. Am. Bakers Ass’n Ret. Plan, 512 F. Supp. 2d 32 (D.D.C. 2007) ..............................................................................................11 Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817 (2013) ..................................................................................................................13 Sierra Club v. Mainella, 459 F. Supp. 2d 76 (D.D.C. 2006) ................................................................................................9 Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344 (D.C. Cir. 1999) ..................................................................................................10 Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650 (D.C. Cir. 2011) ....................................................................................................25 Williams v. Usery, 531 F.2d 305 (5th Cir. 1976) .......................................................................................................22 WJG Tel. Co. Inc. v. FCC, 675 F.2d 386 (D.C. Cir. 1982) ....................................................................................................13 WorldCom, Inc. v. FCC, 238 F.3d 449 (D.C. Cir. 2001) ....................................................................................................10 STATUTES AND PUBLIC LAWS 8 U.S.C. § 1101 ...................................................................................................................... passim 8 U.S.C. § 1153 ..............................................................................................................................19 8 U.S.C. § 1184 ................................................................................................................................2 8 U.S.C. § 1188 ............................................................................................................................2, 4 29 U.S.C. § 213 ................................................................................................................................3 81 Pub. L. No. 587 ...........................................................................................................................3 Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 5 of 41 v 81 Pub. L. No. 1031 .........................................................................................................................3 82 Pub. L. No. 307 ..........................................................................................................................3 83 Pub. L. No. 307 ..........................................................................................................................3 REGULATIONS 8 C.F.R. § 214.2 ....................................................................................................................... 15-16 20 C.F.R. § 655.182 .......................................................................................................................17 20 C.F.R. § 655.201 .......................................................................................................................30 20 C.F.R. § 655.210 .......................................................................................................................30 20 C.F.R. § 655.215 .......................................................................................................................15 29 C.F.R. § 779.372 .......................................................................................................................29 FEDERAL REGISTER * 80 Fed. Reg. 20,300 ............................................................................................................ passim * 80 Fed. Reg. 62,957 ............................................................................................................ passim Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 6 of 41 1 INTRODUCTION The Court is all too familiar with the procedural history of this case and its predecessor litigation, Mendoza v. Perez, 1:11-cv-01790. Intervenor-Defendants will not further belabor the six years and counting of that history. Intervenor-Defendants, Mountain Plains Agricultural Service (“MPAS”) and Western Range Association (“WRA”) (collectively “Association Defendants”), represent most of the sheep ranches that employ H-2A sheepherders under the “special procedures.” They have participated in the Mendoza litigation and in most of the current action. After all of the amended complaints and motions practice, all of the public comments and analysis, Plaintiffs’ remaining arguments can be distilled down to three critiques. Namely, Plaintiffs believe that the 2015 Rule permits: (1) “work on a permanent basis”; (2) “a wage that falls to as low as $3 per hour”; and (3) work by herders that is “illegally broad.” Citing these complaints, Plaintiffs ask the Court to invalidate the entire rule as “arbitrary and capricious” or ultra vires and/or in violation of APA procedure. Beyond ignoring the extensive public comment process and DOL’s thorough explanation of why it made the particular policy choices that it did, Plaintiffs’ arguments rest on basic misunderstandings of the operation of the 2015 Rule, in particular, and the larger H-2A nonimmigrant and separate immigrant visa categories, in general. The version of the rule that Plaintiffs sought in their 2015 comments and are now pursuing through this action was rejected by DOL. Their version would entirely erase the American livestock industry. Intervenor-Defendants ask only that the Court consider the parties’ arguments in light of the standard of deference accorded to agency rulemaking decisions like this, where Congress has Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 7 of 41 2 authorized the agency (here, DOL) to “fill-in-the-gaps” of a statutory structure, and the agency has followed the APA directives in doing so. The final herder rule is not the outcome that any of the hundreds of commenters hoped for, but is a balanced outcome pursuant to the system that Congress created that allows U.S. ranchers to remain viable while protecting U.S. workers and H-2A workers. Intervenor Defendants respectfully ask the Court to preserve that balance and not accede to Plaintiffs’ attempts to destroy this industry. I. BACKGROUND A. Statutory and Regulatory History The Immigration and Nationality Act (“INA”) authorizes the grant of temporary work visas to nonimmigrant aliens “having a residence in a foreign country which he [or she] has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services.” 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Before that happens, American agricultural employers must obtain a temporary labor certification from the U.S. Department of Labor (“DOL”), in which the Secretary of Labor certifies that: (1) “there are not sufficient workers who are able, willing and qualified, and who will be available at the time and places needed, to perform the labor or services involved in the petition,” and (2) “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.” 8 U.S.C. § 1188(a)(1)(A). In the event that DOL issues a temporary labor certification, the Department of Homeland Security (“DHS”), through the U.S. Citizenship and Immigration Service (“USCIS”), considers a further petition by the employer for Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 8 of 41 3 a visa to issue to the prospective alien agricultural worker for a clearly-defined period of time. 8 U.S.C. § 1184(c)(1). The INA does not set forth a specific definition of “adverse effect” but, rather, leaves that specific factual determination to DOL, which has issued a series of regulations under the INA to set forth the procedures and mechanism by which the agency makes such a determination. See 20 C.F.R. §§ 655.100 through 655.235. At the same time, Congress has always recognized that range production of livestock, and particularly sheepherding, do not fit within the usual wage and hour laws, much less the one-size-fits-all H-2A regulations, especially given the remote nature of the work to be performed and the impracticality of tracking hours worked. See, e.g., 29 U.S.C. § 213(a)(6)(E) (1966 amendment, exempting workers “principally engaged in the range production of livestock” from minimum wage and overtime laws). Likewise, Congress has acknowledged for generations – long before the current H-2A program was created by the Immigration Reform and Control Act of 1986 (“IRCA”) – that sufficient domestic sheepherders were simply not available to tend the nation’s flocks. Congress passed a number of laws to admit foreign sheepherders into the U.S. during World War II and the years thereafter, to address an early shortage of available U.S. workers. See, e.g., 81 Pub. L. No. 587; 81 Pub. L. No. 1031; 82 Pub. L. No. 307; 83 Pub. L. No. 307. In enacting IRCA in 1986, Congress specifically referenced special procedures for range livestock workers, directing that the Secretary of Labor “shall issue regulations which address the specific requirements of Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 9 of 41 4 housing for employees principally engaged in the range production of livestock.” 8 U.S.C. § 1188(c)(4).1 Shortly after IRCA became law, creating the H-2A program as distinct from the non- agricultural H-2B program, DOL issued regulations in 1987 to govern the labor certification process for H-2A employers. In those regulations, DOL provided a mechanism for creating and implementing “special procedures,” 20 C.F.R. § 655.102, expressly referencing in the text of the regulation the “special procedures currently in effect for the handling of applications for sheepherders in the Western States.” This Court and the D.C. Circuit spoke in Mendoza of DOL’s recognition of the nature of range herding, noting that DOL “has, for many years, permitted exceptions to these generally applicable procedures ‘to recognize unique circumstances and characteristics for some agricultural employer/worker situations,’ such as sheepherding and occupations involving the open-range production of livestock.” Mendoza v. Solis, 924 F. Supp. 2d 307, 312 (D.D.C. 2013) (citing 52 Fed. Reg. 20,496, 20,497 (June 1, 1987)); see also, Mendoza v. Perez, 754 F.3d 1002, 1008-09 (D.C. Cir. 2014) (recognizing that the regular H-2A “adverse effect wage rates” does not apply to range herders because of the 1 Congress received extensive testimony on the importance of preserving “special procedures” for the range production of livestock, and sheep in particular. Immigration Reform and Control Act of 1983: Hearing on H.R. 1510 and S. 529 Before the H. Subcom. on Immigration, Refugees, and International Law, 98th Cong. 1364-1368 (March 1983) (Statement of William H. Blonde, Executive Director, Western Range Association); Hearing on Proposals to Amend the Immigration and Nationality Act, Before the H. Subcom. on Labor Standards, 98th Cong. 23-25 (Apr. 13, 1983) (Statement of William H. Blonde, Executive Director, Western Range Association); Immigration Reform and Control Act of 1983: Hearing on H.R. 1510 and H.R. 3270 Before the H. Com. on Agriculture, 98th Cong. 33 (June 15, 1983) (Statement of Marion Houston, Immigration Staff Specialist, Bureau of Intl. Labor Aff., DOL, on behalf of: Robert Searby, Dep. Under. Sec., Intl. Labor Aff.). Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 10 of 41 5 “unique occupational characteristics of herding – including spending extended periods in isolated areas and being on call twenty-four hours a day, seven days a week to protect livestock.”). The “unique circumstances and characteristics” or “unique occupational characteristics” of range herding were addressed by DOL for decades through regulatory authority to issue “special procedures” and via informal interpretive guidance to implement those special procedures. B. Mendoza and the 2015 Rule The most recent of those guidance documents was challenged in the Mendoza litigation. The result of the Mendoza litigation was a finding that the 2011 DOL guidance letter (“TEGL”) had been issued without the notice-and-comment rulemaking procedures required by the Administrative Procedure Act (“APA”). Mendoza, 754 F.3d at 1024. As noted by this Court in denying Plaintiffs’ request for a preliminary injunction (ECF 38, at 2), the D.C. Circuit’s decision was that the TEGL was “procedurally invalid” only. In crafting a remedial order, this Court directed DOL to undergo the proper APA process with respect to the herder special procedures. Mendoza v. Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014). Neither the D.C. Circuit’s order regarding the APA violation nor this Court’s remedial order found any violation of law in the substance of the TEGLs. After Mendoza invalidated the DOL guidance and required an APA-compliant rulemaking process for these special procedures, DOL issued a Notice of Proposed Rulemaking on April 15, 2015. See Notice of Proposed Rule on Temporary Agricultural Employment of H- 2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States, 80 Fed. Reg. 20,300 (“NPRM”). Plaintiffs’ counsel in this matter, Towards Justice, Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 11 of 41 6 joined dozens of other groups in the worker-advocate community to comment on the NPRM. See Comments of Farmworker Justice, et al., at 1, Docket No. ETA-2015-0004-0460 (June 1, 2015). Those comments praised DOL for “a welcome change that begins to address the wage stagnation in the industry” but criticized the NPRM because “the proposed rules do not go nearly far enough.” Docket No. ETA-2015-0004-0460 at 1. As the Court noted in the Memorandum Opinion on the motions to dismiss, “Towards Justice expressed disagreement with DOL’s proposed 44-hour workweek as the basis for the monthly salary because ‘worker surveys indicate that most workers average in excess of 80 hours per week while on the open range,’ and the lack of distinction ‘between time spent on the ranch performing ranch duties and time spent on the range.’” [ECF 83 at 5-6]. These are the very issues raised again in Plaintiffs’ APA challenge. Intervenor-Defendants submitted joint comments, as did many of their rancher members. See Comments of Mountain Plains Agricultural Service and Western Range Association, Docket No. ETA-2015-0004-0436 (June 1, 2015). The MPAS and WRA comments offered 40 pages of detailed discussion of the NPRM, with particular emphasis on the proposed changes to the process for setting wage rates, with two economists’ reports explaining why the NPRM’s proposed wage increase would be inappropriate and devastating to ranchers. Docket No. ETA- 2015-0004-0436. The NPRM wage would have more than tripled monthly wage rates for herders in most states, compared to the approximately 500% or more increase Plaintiffs now seem to propose. In all, more than 500 different groups and individuals commented on the NPRM.2 DOL published the final rule, Temporary Agricultural Employment of H-2A Foreign 2 See https://www.regulations.gov/docket?D=ETA-2015-0004 (last visited March 9, 2017). Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 12 of 41 7 Workers in the Herding or Production of Livestock on the Open Range in the U.S., 80 Fed. Reg. 62,957 (Oct. 16, 2015), which took effect on November 16, 2015 (“Final Rule” or “2015 Rule”). Neither Plaintiffs nor the Association Defendants agree with 100% of the decisions that DOL made in crafting the Final Rule, but a review of the notice announcing the Final Rule is instructive as to the lengths to which DOL went to explain its decision to both sides, as well as to the public at large. The preamble to the Final Rule covers 108 pages in the Federal Register (80 Fed. Reg. 62,958-63,065), as compared to the text of the actual rule, which covers barely 5 pages (80 Fed. Reg. 63,066-63,070). The preamble discusses the reasons for having special procedures, the history and context for this particular rulemaking, the comments received on each individual area of the rule submitted by Plaintiffs’ group, the Association Defendants, individual rancher employers, trade associations, local government entities, and interested citizens. Economic data and specific information regarding working conditions, food, water, housing, and all of the details of the proposed rule are weighed and analyzed, alternatives are considered, and the thought process and rationale for the final text of the rule are on display. Association Defendants and their members certainly do not agree with everything in the Final Rule, and neither do Plaintiffs, but it would be absurd to claim that the Final Rule was anything other than a “thorough and reasoned explanation of” DOL’s decision, completed in compliance with APA requirements. C. Current Litigation After Mendoza was decided, after the NPRM was published, after the public comment period came and went, but shortly before the Final Rule was published in October 2015, Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 13 of 41 8 Plaintiffs filed this action here in Washington, D.C. and two parallel actions in Denver, Colorado, each addressed at the TEGLs and the issue of the wage rates paid to herders in the context of the H-2A program. Additional lawsuits have been filed in multiple Western states by the same counsel for Plaintiffs, Towards Justice. This Court has dismissed or transferred away all of Plaintiffs’ claims save their APA challenge to the 2015 Rule. [ECF 82 & 83]. By way of brief update, the District Court in Colorado dismissed Plaintiffs’ separate action filed there asserting antitrust violations and seeking additional wages from the Association Defendants and individual ranches. See Llacua v. Western Range Ass’n, Case No. 15-cv-01889- REB-CBS (D. Colo.). The Magistrate Judge’s Memorandum Opinion and Recommendation of Dismissal is available at 2016 U.S. Dist. LEXIS 177985 (Dec. 21, 2016), the District Judge approved that recommendation and, just this week, denied Plaintiffs’ request to amend their complaint, marking the end of that parallel litigation. [ECF 173, Mar. 7, 2017]. The remaining APA challenge is subject to a briefing order set by the Court, with Plaintiffs having moved for summary judgment [ECF 93], and briefs from the Government Defendants and Intervenor-Defendants due, March 10, 2017, bringing us to the present day. II. STANDARD OF REVIEW A. Summary Judgment on Administrative Record Review Rule 56 permits a trial court to enter summary judgment when the Court finds, based upon the pleadings and the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). More specifically, when, as here, “‘a party seeks Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 14 of 41 9 review of agency action under the APA, the district judge sits as an appellate tribunal. The “entire case” on review is a question of law.’” Pharm. Research & Mfrs. of Am. v. FTC, 44 F. Supp. 3d 95, 111 (D.D.C. 2014), quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). In such cases, the Court “need not and ought not engage in lengthy fact finding, since ‘[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.’” Id., quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) ("Under the APA . . . the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.") (quotation marks and citation omitted). Plaintiffs’ Motion for Summary Judgment does not include a statement of material facts as to which the moving party contends there is no genuine issue. [ECF 93]. Generally, such a statement would be required under LCvR 7(h)(1), but LCvR 7(h)(2) provides that the requirement to provide such a statement “shall not apply to cases in which judicial review is based solely on the administrative record.” However, Plaintiffs attempt to go well beyond the administrative record, trying to interject 18 different documents that are beyond that record. None of them were provided to DOL during the public comment period on the NPRM and none could have formed the basis of the 2015 Final Rule. Intervenor-Defendants respectfully submit Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 15 of 41 10 that the Court should give no weight to these extraneous documents.3 With respect to Intervenor-Defendants’ Cross-Motion for Summary Judgment, the Administrative Record provided by Government Defendants contains all of the necessary documentation from the 2015 rulemaking. B. APA and Agency Deference Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” id. § 706(2)(C), or “without observance of procedure required by law,” id. § 706(2)(D). Pharm. Research & Mfrs., 44 F. Supp. 3d at 113. “This is a ‘deferential standard’ that ‘presumes the validity of agency action.’” Inv. Co. Inst. v. United States CFTC, 891 F. Supp. 2d 162, 186 (D.D.C. 2012), quoting WorldCom, Inc. v. FCC, 238 F.3d 449, 457 (D.C. Cir. 2001) (quoting Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352 (D.C. Cir. 1999)). 1. 706(2)(A) For the “arbitrary and capricious,” “abuse of discretion,” or “otherwise not in accordance with the law” analysis, courts consider “whether the [agency’s] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (citation and internal quotation 3 See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (in applying the arbitrary and capricious standard under the APA, “[t]he focal point for judicial review should be the administrative record already in existence” (Camp v. Pitts, 411 U.S. 138, 142 (1973))). Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 16 of 41 11 marks omitted). The scope of such review “is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. (State Farm), 463 U.S. 29, 30 (1983). “[T]he arbitrary and capricious standard is ‘highly deferential’ and ‘presumes agency action to be valid[.]’” Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008)). Courts will only undo a rulemaking where an agency “failed to provide a reasonable explanation, or where the record belies the agency’s conclusion” (Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999)), or where the agency utterly failed to review relevant data or articulate a satisfactory explanation establishing a “rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43. Courts should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). Most importantly, where an agency acts in situations like this, in an area in which it has “special expertise,” courts must be particularly deferential to the agency’s determinations. See, e.g., Sara Lee Corp. v. Am. Bakers Ass’n Ret. Plan 512 F. Supp. 2d 32, 37 (D.D.C. 2007). Deferring as appropriate to the agency’s expertise and looking only for a rational connection between the facts found and the choice made, … we remain ever mindful that in performing a searching and careful inquiry into the facts, we do not look at the [agency’s] decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality. Id. (internal citations and quotations omitted). DOL possesses this level of expertise, having administered the Congressionally-created H-2A program for more than 30 years and previous Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 17 of 41 12 foreign sheepherder programs for another 40+ years before that, as well as the specific expertise on assessing “adverse effect” on the U.S. labor market from the employment of H-2A workers. Plaintiffs’ “arbitrary-and-capricious challenge boils down to a policy disagreement” with DOL. Public Citizen, Inc. v. National Highway Traffic Safety Admin., 374 F.3d 1251, 1263 (D.C. Cir. 2004) (dismissing APA challenge where Court had no basis to overturn final rule that was “both supported by the record and rationally explained”). Plaintiffs had their opportunity to advocate to DOL for a particular outcome for the Final Rule, DOL exercised its Congressionally- delegated power and well-earned expertise, considered the comments of Plaintiffs and hundreds more, and ultimately agreed with some of Plaintiffs’ points but not all of them and some of the employers’ points but not all of them. That is an APA success story, not an APA violation. 2. 706(2)(C) For judicial review determining whether an agency has acted “in excess of statutory jurisdiction, authority or limitations, or short of statutory right,” the D.C. Circuit applies the well-established two-step process set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). See, e.g., Am. Fed’n of Gov’t Emps., AFL-CIO, Local 3669 v. Shinseki, 709 F.3d 29, 32-33 (D.C. Cir. 2013). The Chevron test looks first to “whether Congress has directly addressed the precise question at issue.” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011). Where, as here with the specific “adverse effect” determinations that Congress directed DOL to make, the analysis moves to Chevron Step Two, where “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1868 (2013). “The Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 18 of 41 13 job of the courts is not to engage in ‘their own interstitial lawmaking’ and ‘mak[e] public policy by prescribing the meaning of ambiguous statutory commands.’” Pharm. Research, 44 F. Supp. 3d at 112, quoting City of Arlington, 133 S. Ct. at 1868. Instead, “the ‘archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests’ belongs to the ‘agencies that administer the statutes.’” Id. Where an agency acts pursuant to Congress’ direction in making rules carrying the force of law, “then the agency’s rule is entitled to deference ‘as long as it is a permissible construction of the statute, even if it differs from how the court would have interpreted the statute in the absence of an agency regulations.’” Id., quoting Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 826 (2013). 3. 706(2)(D) Where a party claims that an agency has acted “without observance of procedure required by law,” under APA Section 706(2)(D), “[l]ongstanding precedent instructs that ‘[n]otice is sufficient “if it affords interested parties a reasonable opportunity to participate in the rulemaking process,” and if the parties have not been “deprived of the opportunity to present relevant information by lack of notice that the issue was there.’” Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008) (quoting WJG Tel. Co., Inc. v. FCC, 675 F.2d 386, 389 (D.C. Cir. 1982) (citations omitted)). The Court’s inquiry focuses on whether “the interested parties could not reasonably have ‘anticipated the final rulemaking from the draft [rule],’” and “whether the notice given affords ‘exposure to diverse public comment,’ ‘fairness to affected parties,’ and ‘an opportunity to develop evidence in the record.’” Nat'l Mining Ass'n v. Mine Safety & Health Admin., 116 F.3d 520, 530-31 (D.C. Cir. 1997) (internal citations omitted). Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 19 of 41 14 As set forth above, and as the Court previously noted in the September 2016 decision on the motions to dismiss, the notice-and-comment process here made clear what issues would be addressed in the rulemaking, hundreds of comments were received including, most critically, from Towards Justice itself, and the Final Rule reasonably followed from the NPRM and comments. Of the three issues raised by Plaintiffs: (1) permanent vs. temporary work; (2) wages and average workweeks; and (3) scope of permissible work, all three were included in the NPRM as they had been included in the previously TEGLs and other guidance documents dating back decades. Although the Final Rule changed from the NPRM, in response to the flood of public comments, there were no surprises here that would support a 706(2)(D) challenge. 4. Chevron and Auer Deference The Court does not need any additional briefing on the Chevron or Auer standards for conferring judicial deference on agency determinations interpreting their authorizing statutes or their own regulations, respectively. Both are entitled to substantial deference, and a plaintiff challenging such determinations bears a “heavy burden” unless the agency’s decision is “plainly erroneous.” See, e.g., Community Health Sys. v. Burwell, 113 F. Supp. 3d 197, *33-35 (D.D.C. 2015) (citing Auer v. Robbins, 519 U.S. 452, 463 (1997)). III. ARGUMENT A. H-2A Shepherds Are Employed on a Purely Temporary Basis 1. The DOL and USCIS Regulations Limit H-2A Herder Employment Plaintiffs first argument is that H-2A shepherds “work on multi-year contracts that are renewable for indeterminate lengths of time.” Pltfs. Br. at 4. Reviewing any of the hundreds of Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 20 of 41 15 sheepherder job orders posted on the Department of Labor’s registry of temporary labor certifications proves that this is patently false. See https://icert.doleta.gov/. None of these job orders last for more than 364 days. Not one. The Final Rule specifically limits the length of H-2A job orders as follows: The period of need identified on the H-2A Application for Temporary Employment Certification and job order for range sheep or goat herding or production occupations must be no more than 364 calendar days. The period of need identified on the H-2A Application for Temporary Employment Certification and job order for range herding or production of cattle, horses, or other domestic hooved livestock, except sheep and goats, must be for no more than 10 months. 20 C.F.R. § 655.215(b)(2). The H-2A regulations already limit DOL’s ability to grant extensions of labor certifications – short-term extensions of two weeks of less must be approved by DHS, and long-term extensions “must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseen changes in market conditions)” and may not extend the total work contract to 12 months or more, “except in extraordinary circumstances.” 20 C.F.R. § 655.170(a) and (b). Likewise, the USCIS regulations governing that agency’s issuance of H-2A visas specifically provide that “[a]n H-2A petitioner must establish that the employment proposed in the certification is of a temporary or seasonal nature” and that “[e]mployment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.” 8 C.F.R. § 214.2(h)(5)(iv)(A).4 4 Plaintiffs place considerable reliance on the interpretation of the separate H-2B regulations from USCIS. This reliance is misplaced, since USCIS’ decision to limit employment in the “peakload” classification of “temporary” need (creating a temporary-temporary need) was Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 21 of 41 16 Thus, the two definitions align perfectly. In the event that DOL were to issue a temporary labor certificate, but USCIS found “substantial evidence that the employment is not temporary or seasonal,” then USCIS must deny the petition, under Section 214.2(h)(5)(iv)(B). This is no “rubber stamp” but an independent agency’s evaluation and decision making on a petition. The INA does not define “temporary” employment, but USCIS and DOL have long held that employment must last no longer than one year on a contract to meet the definition. But Plaintiffs steadfastly refuse to let reality interfere with their flawed arguments. Despite this clear regulatory language preventing the very thing that Plaintiffs accuse the agencies of doing, they continue to pursue this argument. Plaintiffs ignore the full text quoted above in the DOL and USCIS regulations and taken from the INA, that the agricultural employment must be “temporary or seasonal,” 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (emphasis added), and attack only the “seasonal” part of the definition. The use of the word “or” “normally connotes the disjunctive.” Kennedy for President Committee v. FCC, 636 F.2d 432, 445 (D.C. Cir. 1980). The existence of separate definitions of “seasonal” and “temporary” supports this reading. See, id. A further limitation preventing employment for “indeterminate lengths of time” as Plaintiffs allege is the USCIS “touchback” rule. While an H-2A visa may be extended to cover a subsequent temporary labor certification issued by DOL, but “an individual who has held H-2A status for a total of 3 years may not again be granted H-2A status until such time as he or she remains outside the United States for an uninterrupted period of 3 months.” 8 C.F.R. § explicitly not included in the H-2A definition of “temporary” need by USCIS. This actually undercuts Plaintiffs’ arguments and supports the conclusion that H-2A herding work is properly “temporary” under the INA and USCIS regulations. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 22 of 41 17 214.2(h)(5)(viii)(C). Thus, “permanent” employment or even “renewable for indeterminate lengths of time” employment are legally impossible under the H-2A rules. And Plaintiffs’ claim that DOL does not restrict “the timing or frequency of renewals” of visas demonstrates their misunderstanding of the H-2A program. Pltfs. Br. at 6. DOL conducts a “labor market test” to determine if U.S. workers are available for a position and whether the terms and conditions of a job order will adversely affect U.S. workers. DOL does not issue visas, nor does it renew those visas. Those decisions are handled by USCIS, which, as described above, has specific rules limiting the renewal of visas to prevent the very scenario that Plaintiffs worry about. Plaintiffs rely on documents outside the Administrative Record to argue that range herding is different than crop agriculture. Pltfs. Br. at 8-10. This is one point on which all of the parties would agree. But Plaintiffs’ argument cherry picks an application and draws erroneous conclusions from it.5 The Colorado corn harvesting job order referenced by Plaintiffs on p.7 of their Brief is offered for the conclusion that H-2A workers can only perform one particular task as part of a larger growing season and could not participate in planting and tending the crop and harvesting and packing it. Id. at 7-8. This is patently false. Most H-2A job orders for crop agriculture are 9 or 10 months in duration and involve a panoply of job duties throughout the year. DOL routinely certifies such job orders, as they are perfectly consistent with the longstanding DOL H-2A regulations. What is expressly not permitted, but alleged by Plaintiffs, is moving H-2A workers to a different employer who is not on the job order or having that 5 Intervenor-Defendants reiterate their position that this extracurricular information from beyond the Administrative Record should be given no consideration, but where, as here, such information is misconstrued or misrepresented by Plaintiffs, a brief response is required. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 23 of 41 18 worker perform job duties not disclosed or approved in the job order. See 20 C.F.R. § 655.182(d)(1)(vii) (“Employing an H-2A worker outside the area of intended employment, in an activity/activities not listed in the job order or outside the validity period of employment of the job order, including any approved extension thereof” as a violation supporting employer debarment from the H-2A program).6 The Colorado corn grower’s decision to hire H-2A workers for only two-and-a-half months in 2014 in no way suggests that it could not have been certified by DOL to employ workers for a long period of time or to perform a wider range of activities. H-2A herders are engaged in temporary work, under 8 U.S.C. § 1101 and within the clear definitions of “temporary” work found in the DOL and USCIS regulations. Plaintiffs’ theory of “continuous” or “indeterminate” work periods is simply not true and is directly contradicted by the regulatory text and by the reality of the labor certifications and visas issued by the agencies. 2. The Permanent or “PERM” Visa Would Not Work for Herders Plaintiffs insist that DOL and USCIS should consider applications for foreign herders to work in the United States under the permanent or PERM visa category rather than the H-2A program. Pltfs. Br. at 1-2. The agencies do not choose which type of visa best suits a foreign worker presenting himself or herself for consideration. The agencies simply adjudicate petitions under one program or the other. Some employers and some foreign workers have chosen to 6 The footnote reference to the Employment USA on page 8 is also misplaced – the debarment in that case was based on DOL showing fraud by the filing agent and employer in obtaining a labor certification for hay harvesting and then illegally moving the workers to a different employer to perform dairy work. The issue there was fraud, plain and simple, and not work lasting for multiple months or involving multiple job duties within a single H-2A job order. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 24 of 41 19 pursue permanent employment under the PERM program, and there are foreign-born herders in the U.S. who received lawful permanent resident status (“green card” status) to work in the United States indefinitely. As with the Colorado corn farmer, however, that decision does not imply that this is the only possible choice that could be made. Nor does it somehow prove that making a different choice is illegal where, as discussed above regarding the statutory and regulatory framework of the H-2A program, the agencies are clearly applying longstanding statute and regulation in the correct manner, as they have done for decades. A key distinction between the H-2A program and the PERM program is the alien’s intent regarding his or her future residence. H-2A workers are nonimmigrants, “having a residence in a foreign country which he has no intention of abandoning.” 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Recipients of PERM visas, by contrast, are admitted to the United States as a lawful permanent resident or “green card” holder. 8 U.S.C. § 1153(b). They leave their home behind and move to the United States for as long as they desire. H-2A workers – both herders and those working in other industries – have families in their home country, to whom they send remittances that offer a life-changing opportunity in these countries, and to which they return for significant portions of time. It is the worker’s intent regarding this return to their home country that distinguishes the two programs – H-2A is a nonimmigrant visa and PERM is an immigrant visa. Practically speaking, even if the foreign workers wished to apply to work in the U.S. on a permanent rather than temporary basis, that is easier said than done, and the PERM program would not be able to accommodate that wish. While the H-2A program has no numerical limit on the availability of temporary visas, PERM visas are limited annually by employment Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 25 of 41 20 classification and country-of-origin. For example, under the third “employment-based preference” for immigration (“third preference” or “EB-3”), for professional, skilled, and unskilled workers, there is an annual worldwide limit of 40,040, with unskilled workers limited to just 10,000 of such admissions, which results in years-long backlogs in processing by DOL, DHS, and the State Department. In an already over-subscribed program, adding 2,000 or more H-2A herders would make it impossible for any of them to come to the U.S. By way of contrast, DOL approved labor certifications for more than 165,000 H-2A workers in FY 2016, alone. See https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2016/H- 2A_Selected_Statistics_FY2016_Q4.pdf (last visited March 9, 2017). Given that admission to the United States on an immigrant visa on a permanent basis involves a far more extensive benefit than a temporary or seasonal position, the processing timeline for PERM visas is considerably longer than for H-2A visas. According to DOL, the Department is currently processing PERM applications filed in November 2016 and H-2A applications filed the first week of March 2017.7 Separate processing by the Department of Homeland Security would further extend this period. To even file a PERM petition, an employer must also apply to DOL for a wage determination for the particular job, which takes another 3 to 4 months to process. Id. Ultimately, the decision of whether to seek an H-2A visa or PERM LPR status can be made by the foreign worker and the petitioning employer. The existence of this choice does not 7 From DOL iCERT Portal under “Processing Times” tab: https://icert.doleta.gov/ (last visited March 9, 2017). Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 26 of 41 21 negate the proper, legal, and longstanding operation of the H-2A program. Plaintiffs’ theory is misguided and does not support the argument that the DOL herder rule must be invalidated. B. DOL Acted Properly in Crafting an H-2A Wage Rate for Herders 1. The Hourly Rate and Workweek Calculations Were Reasonable At its heart, Plaintiffs’ attack on the monthly salary level for H-2A herders that DOL set in the Final Rule is a policy dispute. The NPRM proposed one methodology for setting herder wages, Towards Justice and the Association Defendants submitted comments advocating for an even higher or more reasonable increase in the then-current wage rates, with the Association Defendants offering multiple economic models and reports from economists in support thereof, hundreds of other groups and individuals on both sides of the argument made their voices heard on this issue, and DOL ultimately chose a wage methodology that best captured all of those comments and all of that data. As described above, probably none of the 506 commenters is perfectly happy with the choice that DOL made, but it certainly made a choice and articulated the reasons for doing so in the extensive preamble to the Final Rule. Recognizing that its own members had concerns with the final methodology chosen, the Association Defendants nevertheless respectfully ask the Court to honor the process and to uphold the Final Rule as written. As a matter of first principles, even Plaintiffs concede that it is “undisputed” that “shepherds may at times earn a monthly – as opposed to an hourly – wage because of the sometimes remote nature of their work.” Far more important that the parties understanding of this, Congress itself has long recognized this in exempting range herding from the minimum Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 27 of 41 22 wage and overtime requirements of the FLSA, as described above. So, the payment of a monthly wage outside of the FLSA construct to herders is beyond cavil. The sole issue is how to set that monthly wage to avoid the “adverse effect” addressed in the INA for purposes of the H-2A program. For crop agriculture, that is easily accomplished by way of the USDA National Agricultural Statistics Survey, which inquires about the wages of non-H-2A workers in a wide range of crop and livestock activities. As discussed in Mendoza, the NPRM, and the Final Rule, similar surveys of non-H-2A range herders became increasingly difficult due to their scarcity and, over the years, resulted in a lack of survey findings that produced wage stagnation. There came a point when the survey method used for other H-2A agriculture became impossible for this industry. Plaintiffs would prefer to set the “adverse effect wage rate” (“AEWR”) for herders at the level at which individual U.S. herders would be willing to move away from their families to take these jobs – for some of the Mendoza plaintiffs, that level was roughly $1,200/month, but for some of the current remaining Plaintiffs, that might be $11 or $12/hour. The determination of “adverse effect” by DOL under the H-2A program is not, however, the setting of a wage rate that would attract U.S. workers to take a job that they are not already engaged in. See Williams v. Usery, 531 F.2d 305 (5th Cir. 1976). In Williams, the court considered a similar worker challenge to H-2A adverse effect wage rates set by DOL and found that, “Even if desirable, the Secretary [of Labor] has no authority to set a wage rate on the basis of attractiveness to workers. His authority is limited to making an economic determination of what rate must be paid all Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 28 of 41 23 workers to neutralize any ‘adverse effect’ resultant from the influx of temporary foreign workers.” 531 F.2d at 306. Moreover, this idea would be absolutely impractical. DOL regulations require that H-2A jobs be posted on the agency’s job registry and that potential applicants be advised of the wages and other working conditions before accepting the job. How would workers be recruited if the wage rate were unknown or set by each applicant? Clearly, DOL had to implement some methodology to set a uniform monthly salary rate. By definition, this rate would result in varying effective hourly rates of pay depending on the hours worked in a particular week or month, as does any salary pay structure. The comments submitted during the public comment period, as one would expect, offered alternatives to craft a monthly salary from using the percentage increase in the Economic Cost Index to update the last “valid” herder wage surveys from 1994 to setting a particular base hourly wage and an estimated hours/week figure to using such a rate-times-hours calculation with consideration for the provision of free food, which is not required under the H-2A program. Based on all of these comments and with an eye always on finding the solution that best prevented an “adverse effect” to U.S. herders, DOL selected the current FLSA minimum wage of $7.25/hour as the base rate and a 48-hours/week average workweek in setting the monthly salary level for H-2A herders. This results in a monthly salary greater than $1,500, more than double the monthly rate previously in effect, but less than the 300% or 400% increase in the NPRM. The Towards Justice comments were critical of the NPRM’s use of a 44-hour/week figure for an average workweek, characterizing it as follows: “This 44-hour figure is DOL’s Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 29 of 41 24 compromise between two figures – a 48-hour workweek suggested by some worker advocates and a 40-hour workweek suggested by the employers.” Page 2, n.1. On page 20 of the larger comments by the worker advocate coalition, the 48-hour figure is described as a “conservative estimate submitted by worker advocates.” The figure actually comes from a letter submitted to DOL on October 30, 2014, months prior to the publication of the NPRM, by Edward Tuddenham, a well-respected longtime advocate for farmworkers, and lead plaintiffs counsel in the Mendoza litigation. Doc. 14 in the Administrative Record. In his letter, Attorney Tuddenham stated directly: “We propose that the salary based on a 48 hour work week paid at the AEWR. While the length of the average workweek for a Range worker is subject to considerable debate, 48 hours a week is a conservative estimate using employer data.” Id. at 5. The NPRM acknowledged this position from a leading figure in the farmworker advocate community, further noting the 40-hours/week level set by a U.S. District Court Judge in the Zapata v. Western Range Association litigation, the 81-hours/week figure from a 2010 Colorado Legal Services survey of fewer than 100 workers in that state (Pltfs. Br. at 27 n.22), as well as a 49.5-hours/week average workweek calculation submitted by an economist for the Colorado Wool Growers Association. See 80 Fed. Reg. 20,309 n.18. Further estimates were provided later during the public comment period but, in the end, Mr. Tuddenham’s 48-hour/week figure was the one chosen by DOL to most accurately represent the average workweek. Plaintiffs’ misstate the parties’ “representations” in the comments on page 27 of their Brief – the “shepherd representation” of 80-hours/week was made by some worker advocates but, obviously, not Mr. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 30 of 41 25 Tuddenham, whereas the “rancher representation” was not the 48-hours/week ultimately chosen, but the 44-hours/week from the NPRM.8 The challenge of setting this number arises because the work: (1) is performed miles from any time clock or supervisor and defies verification; (2) varies wildly from week to week, depending on the terrain, weather, and time in the sheep breeding cycle; and (3) is performed in an on-call capacity, blurring the line between working, waiting, watching, cooking, resting, etc., in a way that an office job or even a crop agriculture job does not involve. DOL’s calculation took into account estimates far lower and far higher than the 48-hours/week number, but most of the estimates centered around and support that figure, from both worker advocates and from employers. Association Defendants respectfully urge the Court to give all due deference to DOL’s decision regarding the appropriate monthly wage for H-2A herders, recognizing the extensive comments received and considered, and the eminently reasonable conclusion as to the proper methodology. Regardless of the frustrations on both the employer and worker side of this determination, all parties should agree that DOL conducted a thorough and fair comment process and has exercised its wage-setting expertise rather than “simply picking a permissible interpretation out of a hat.” Vill. of Barrington v. Surface Transp. Bd., 636 F.3d 650, 660 (D.C. 8 As an aside, Plaintiffs throw around the $3/hour figure on nearly every page of their Brief. At the current monthly herder salary (adjusted for ECI and mid-phase-in) of $1,389.67, a herder would need to work 107 hours/week ($1,389.67 / 4.33 weeks/month / $3.00/hour). That would mean 15-hour days, continuously. That estimate is not even supported by the Colorado Legal Services’ survey and is clearly intended to be inflammatory. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 31 of 41 26 Cir. 2011). Some wage methodology was necessary to address this issue, and DOL has acted reasonably in doing so here. 2. Setting a Higher Wage Would Destroy this Industry Plaintiffs seen to believe that rancher employers are a magical ATM capable of paying more and more on their demand. As demonstrated in the two economists’ reports submitted with Intervenor-Defendant’s joint comments to the NPRM from June 1, 2015, this theory is not the economic reality in this industry. The report from Dr. Stephen Bronars (Ex. B to the comments), found that: (1) U.S. wool and lamb production is less than 1% of the global market, and U.S. producers are “price takers” in this market, unable to pass increased labor costs on to consumers; (2) if U.S. herder wages increased in step with the Employment Cost Index between 1994-2015, they would have been between $1,041 and $1,281/month in 2015; and (3) because 100% of herder wages are “take home” pay, without paying for food, housing, utilities, or transportation, the net pay of herders far exceeds the take home pay of workers in any of the cities of the Mountain West where this work is performed ($300-$815/month, average). The report from the University of Wyoming mirrored Dr. Bronars’ report, finding that in this kind of market, the prices for wool and lamb are fixed, and there is a point at which labor and other input costs rise so much that the ranch will consistently lose money and collapse. At the former, artificially low $750/month wage rate, ranches could hope to earn a profit 85% of the time, compared to only 3 years out of 10 under the $2,400/month NPRM rate. The 50/50 point necessary to sustain an operation in the long-term was approximately $1,500/month. Using the 81-hours/week proposed by Plaintiffs, even keeping the $7.25/hour figure, yields a monthly Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 32 of 41 27 salary level of $2,542.79, far beyond the point at which employers could hope to survive. Using that workweek estimate and the $12.00/hour level discussed elsewhere in Plaintiffs’ brief9 leads to a monthly salary of $4,208.76 and an annual rate of more than $50,500 – nearly the median household income for the entire United States – again, with no responsibility for food, housing, utilities, cell phones, clothes, or any of the other expenses that families use that $50,000/year to cover. H-2A herder pay is “free-and-clear” – meaning that even at the $1,389.67/month level this year and the $1,500-$1,600 in effect next year, H-2A herders’ net pay will far exceed the net earnings of most of the ranches that employ them, according to the comments submitted by the associations’ members. This is not the situation often facing regulators of regulated stakeholders “crying wolf”10 about a regulation putting them out of business, see, e.g., Agape Church, Inc. v. FCC & United States, 738 F.3d 397, 410 (D.C. Cir. 2013) (“there is nothing in the record to support [stakeholders’] assertion that the [challenged regulatory action] will drive [them] out of business”). Association Defendants and scores of individual employers submitted specific economic data demonstrating the deadly effect that the proposed NPRM salary level would have. That level is a fraction of what Plaintiffs are now asking the Court to impose. 9 The reference to “shepherds” in Maine and “animal handlers” in North Dakota earning $11.22/hour in 2014 (Pltfs. Br. at 33) highlights how ridiculous Plaintiffs’ position is. Sheep in Maine or North Dakota are raised on fenced-in farms, not on remote mountain tops and on public lands as they are in the Mountain West. In that setting, hours can be easily tracked, and workers live in fixed-site housing on a traditional farm. DOL correctly rejected Plaintiffs’ arguments about such work, since “those occupations do not appear to be primarily engaged in range work.” 80 Fed. Reg. 62,991. 10 No pun intended. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 33 of 41 28 This is an industry with razor-thin and ever-shrinking margins. The H-2A workers who tend these herds are given absolute responsibility over the livelihood of these family farms. In turn, they are treated as part of the family. If the federal price supports for wool and lamb that were in place in the past were still in effect, or ranchers were otherwise able to pass along their costs to consumers, then increasing wages would be no problem. In reality, however, what Plaintiffs are requesting here would relegate the American ranch to the history books. C. Some Ability to Perform Limited On-Ranch Activities is Essential Plaintiffs’ final argument is that the Final Rule improperly permits H-2A herders to perform a limited amount of work off of the “range” and on-ranch. Plaintiffs insist that the “illegally expansive definition of ‘range,’ … now encompasses urban cropland, and has illegally broadened the scope of shepherd work, which now includes ever-more ranch-based work.” Pltffs. Br. at 37. This bogeyman argument finds no support in reality. Speaking on behalf of most of the users of the H-2A herding program, hundreds of rancher-employers, the rampant expansion of worksites or employers reclassifying their ranch hands as “range” herders has simply not happened. DOL’s own statistics, comparing the FY 2015 certifications and FY 2016 certifications – the last year of the TEGLs vs. the first year of the Final Rule – shows no significant change in program usage. If anything, the doubling of labor costs has driven several of the associations’ members out of business, resulting in fewer and not more range herders requested and certified. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 34 of 41 29 Turning once again from Plaintiffs’ fear mongering to the reality of the regulations, the Final Rule does not represent much of a departure from the longstanding restrictions on what constitutes range herding. TEGL 32-10 defined the job as including the following job duties: Attends sheep and/or goat flock grazing on the range or pasture. Herds flock and rounds up strays using trained dogs. Beds down flock near evening campsite. Guards flock from predatory animals and from eating poisonous plants. Drenches sheep and/or goats. May examine animals for signs of illness and administer vaccines, medications and insecticides according to instructions. May assist in lambing, docking, and shearing. May perform other farm or ranch chores related to the production and husbandry of sheep and/or goats on an incidental basis. TEGL 32-10 at Part I(C)(1). “On an incidental basis” was never specifically defined, but has always been interpreted by the Office of Foreign Labor Certification, Wage & Hour Division, and employer community as something less than 50% of the worker’s time. There is well-settled precedent for this, in DOL’s FLSA regulations for purposes of overtime exemptions, looking at whether, say, a salesman is “primarily engaged” in exempt activities by assessing whether more than 50% of his or her time is spent in that activity, compared to “incidental” duties for the remaining time. See, e.g., 29 C.F.R. § 779.372. The Final Rule includes a far more extensive description of the position, but retains the core requirement that the work is primarily performed on the range, with additional work related to the care of animals on an incidental basis: Production of livestock. The care or husbandry of livestock throughout one or more seasons during the year, including guarding and protecting livestock from predatory animals and poisonous plants; feeding, fattening, and watering livestock; examining livestock to detect diseases, illnesses, or other injuries; administering medical care to sick or injured livestock; applying vaccinations and spraying insecticides on the range; and assisting with the breeding, birthing, raising, weaning, castration, branding, and general care of livestock. This term also includes duties performed off the range that are closely and directly related to Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 35 of 41 30 herding and/or the production of livestock. The following are non-exclusive examples of ranch work that is closely and directly related: repairing fences used to contain the herd; assembling lambing jugs; cleaning out lambing jugs; feeding and caring for the dogs that the workers use on the range to assist with herding or guarding the flock; feeding and caring for the horses that the workers use on the range to help with herding or to move the sheep camps and supplies; and loading animals into livestock trucks for movement to the range or to market. The following are examples of ranch work that is not closely and directly related: working at feedlots; planting, irrigating and harvesting crops; operating or repairing heavy equipment; constructing wells or dams; digging irrigation ditches; applying weed control; cutting trees or chopping wood; constructing or repairing the bunkhouse or other ranch buildings; and delivering supplies from the ranch to the herders on the range. Range. The range is any area located away from the ranch headquarters used by the employer. The following factors are indicative of the range: it involves land that is uncultivated; it involves wide expanses of land, such as thousands of acres; it is located in a remote, isolated area; and typically range housing is required so that the herder can be in constant attendance to the herd. No one factor is controlling and the totality of the circumstances is considered in determining what should be considered range. The range does not include feedlots, corrals, or any area where the stock involved would be near ranch headquarters. Ranch headquarters, which is a place where the business of the ranch occurs and is often where the owner resides, is limited and does not embrace large acreage; it only includes the ranchhouse, barns, sheds, pen, bunkhouse, cookhouse, and other buildings in the vicinity. The range also does not include any area where a herder is not required to be available constantly to attend to the livestock and to perform tasks, including but not limited to, ensuring the livestock do not stray, protecting them from predators, and monitoring their health. 20 C.F.R. § 655.201; see also 20 C.F.R. § 655.210(b) (any job offer must state that “the workers spend the majority (meaning more than 50 percent) of the workdays during the contract period in the herding or production of livestock on the range”). This is also consistent with Congress’ definition of range herding as those workers “principally engaged in the range production of livestock” in Section 213(6)(E) of the FLSA. They need not be “exclusively engaged” in work on the range, just “principally engaged.” Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 36 of 41 31 The artificial distinction between “shepherd” and “ranch hand” falls apart quickly for most employers in the H-2A program. These are not operations with dozens or hundreds of employees, where work can be divided up and assigned to different teams to handle. Most of these ranches employ 3 or fewer non-family workers, and forcing them to conduct separate hiring processes for H-2A range herders and H-2A ranch hands, just to have enough work for the incidental duties occurring on-ranch is laughably impossible. As is finding workers to handle lambing duties and then handing off the herd to a completely different crew to bring the animals to remote grazing areas. In order to be certified under the special procedures – now under the Final Rule just as previously under the TEGLs and prior guidance – the primary and core duty of the worker must be caring for a herd in remote areas. Part of that work must always include brief periods of on-ranch work – gathering supplies, repairing sheep wagons or trailers, loading sheep onto trucks for transport, and providing certain kinds of medical attention to the animals, including during lambing season. While Plaintiffs’ assert that DOL “entirely failed to consider an important aspect of the problem,” quoting State Farm, 463 U.S. at 43, the NPRM proposed a far more restrictive definition of permissible job duties and work locations, hundreds of comments were received addressing these issues, and DOL ultimately made a policy decision that differed from Plaintiffs’ preferred final regulation. The Association Defendants commented specifically on this issue because, separate and apart from the concerns with increased wages, more than half of their members would have been thrown out of the H-2A program overnight because of the improperly Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 37 of 41 32 restrictive job descriptions in the NPRM. The Final Rule marks a return to longstanding policy and not, as Plaintiffs argue here, a radical departure from that policy. As Plaintiffs point out, even under the prior version of the “special procedures,” there were cases where workers whose primary job duty was on-ranch work were improperly paid the monthly salary for range herders. See Mencia v. Allred, 808 F.3d 463, 469 (10th Cir. 2015) (“under the undisputed facts, Mr. Saenz spent a large majority of his time working away from the range, supervised by superiors who could have recorded his hours, performing duties that were often incidental to sheepherding but were not sheepherding themselves. He was a ranch hand, not a sheepherder, and the FLSA exemption and H-2A Special Procedures do not apply.”). The Tenth Circuit, in finding that the H-2A workers were not engaged in the “range production of livestock” under the FLSA, applied a test that looks much like the one in the Final Rule: “A person who drives sheep trucks 51% of the time, and herds sheep during the other 49%, does not drive trucks ‘on an incidental basis’ and cannot be called a sheepherder under the Special Procedures.” Id. at 468. The Court in Mencia was actually applying the 2001 TEGL in effect during the plaintiffs employment, so the consistency between that definition and the one in the 2015 Final Rule is particularly definitive in refuting Plaintiffs’ claim of an unexplained and radical departure from precedent. For all of these reasons, DOL’s decision to preserve the longstanding definitions of “range production of livestock” mirror Congress’ in the 1966 FLSA amendment and the limits on job duties that have been included in all of the H-2A special procedures guidance documents dating back to at least 1987. While Plaintiffs advocated for a change in these definitions and Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 38 of 41 33 made their case to DOL via the comment process, other groups made the case for preserving the definition that better matched Congress’ definition and, ultimately, DOL issued the Final Rule with a definition that sets firm limits on what work is properly included in the special procedures and what work is not. In doing so, current and long-time users of the program are not suddenly excluded from using it, as they would have been under the NPRM or Plaintiffs’ current theory, but there has been no groundswell of fixed-site ranches rushing to apply for ranger herders through the H-2A special procedures. Once again, the APA process worked, and the Court should uphold DOL’s exercise of its expertise in this difficult decision making process. D. The Relief Requested is Not Appropriate Plaintiffs ask the Court to declare that DOL and DHS have violated the APA, and to set aside and vacate the portions of the 2015 Rule that they complain of now.11 For the reasons set forth above, the Association Defendants reiterate that there has been no APA violation here that would support Plaintiffs’ requested relief. However, if the Court were to conclude that an APA violation had occurred, they would respectfully ask the Court to delay vacatur until such time as a new rulemaking process could be completed, to avoid a disastrous gap in this essential program. The Court did so in the Remedial Order in Mendoza, and Association Defendants respectfully assert that the same outcome should apply here in the unlikely event that any APA violation were to be found. CONCLUSION 11 Plaintiffs incorrectly cite the provisions in question, which are in Title 20 and not Title 29. Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 39 of 41 34 Intervenor-Defendants MPAS and WRA respectfully urge the Court to grant the relief requested herein: (1) denying Plaintiffs’ Motion for Summary Judgment; (2) granting Intervenor-Defendants’ Cross-Motion for Summary Judgment; and (3) dismissing the case in its entirety. Respectfully submitted on this 10th day of March, 2017: CHRISTOPHER J. SCHULTE CJ Lake, LLC By: /s/ Christopher J. Schulte CHRISTOPHER J. SCHULTE CJ Lake, LLC 525 Ninth Street N.W., Suite 800 Washington, DC 20004 (202) 465-3000 / cschulte@cj-lake.com Counsel for Defendants Western Range Association and Mountain Plains Agricultural Service Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 40 of 41 35 CERTIFICATE OF SERVICE I certify that on March 10, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will provide electronic notice and an electronic link to all attorneys of record: /s/Christopher Schulte CHRISTOPHER J. SCHULTE CJ Lake, LLC Case 1:15-cv-01562-BAH Document 99-1 Filed 03/10/17 Page 41 of 41