United States Court of Appeals, District of Columbia Circuit
Argued February 25, 2014.
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Appeal from the United States District Court for the District of Columbia. (No. 1:11-cv-01790).
Julie A. Murray argued the cause for appellants. With her on the briefs were Michael T. Kirkpatrick and Edward J. Tuddenham.
Michelle R. LaPointe was on the brief for amici curiae The Southern Poverty Law Center, et al. in support of appellants.
Craig A. Defoe, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorney General, and David J. Kline, Director. Geoffrey Forney, Senior Litigation Counsel, entered an appearance.
Edwin B. Swan, pro hac vice, argued the cause for intervenors. On the brief was Carl W. Hampe.
Before: TATEL, BROWN, and MILLETT, Circuit Judges. Opinion for the Court by Circuit Judge BROWN.
Brown, Circuit Judge :
The Immigration and Nationality Act creates a temporary foreign worker visa program that allows employers to hire foreign workers when there are not enough qualified and available American workers to fill open jobs. The Department of Labor is tasked with administering the visa program to protect the wages and working conditions of U.S. workers. In August 2011, the Department updated the special procedures that establish the minimum wages and working conditions employers must offer U.S. sheepherders, goatherders, and open-range (cattle) herders before hiring foreign herders.
The plaintiffs in this action are U.S. workers experienced in herding. Although the plaintiffs would prefer to work as herders, they have been forced out of the industry by the substandard wages and working conditions they attribute to the easy availability of foreign herders. The plaintiffs paint a portrait of agency capture, suggesting the Department has, without giving herders or their representatives an opportunity to be heard, administered the temporary worker visa program in a way that gives herding operations access to inexpensive foreign labor without protecting U.S. workers.
The plaintiffs, all of whom had left their herding jobs sometime prior to August 2011, filed this action alleging the Department of Labor violated the Administrative Procedure Act by issuing the special procedures without notice and comment. The Mountain Plains Agricultural Services and the Western Range Association--two groups representing employers in the herding industry--intervened on the side of the government. The intervenors filed a motion to dismiss for lack of jurisdiction and all the parties filed cross-motions for summary judgment in the district court. The district court granted the motion to dismiss, holding the plaintiffs lacked Article III and prudential standing. We reverse the judgment of the district court.
The H-2A visa program--created by the Immigration and Nationality Act of 1952 (INA) and amended by the Immigration Reform and Control Act of 1986--permits employers to hire foreign workers to perform temporary agricultural work in the United States. An employer seeking to hire H-2A foreign workers must first seek certification from the Department of Labor that (1) there are not sufficient qualified and willing U.S. workers to fill open positions and (2) hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. 8 U.S.C. § 1188(a)(1). Only after obtaining the Department of Labor certification may the employer petition United States Citizenship and Immigration Services to classify a specific foreign worker as an H-2A temporary worker.
The Department of Labor has adopted regulations by notice-and-comment rulemaking that govern the H-2A certification process. The regulations were most recently amended, again through notice-and-comment procedures, in 2010. Through those regulations, the Department sets minimum terms and conditions employers must offer workers to determine the availability of American workers to fill employers' jobs. See 20 C.F.R. § § 655.120-655.122. The regulations also establish procedures for employers seeking H-2A certification to advertise open positions. See 20 C.F.R. § § 655.150-655.158. Qualified U.S. workers responding to these job offers must be given priority over foreign workers. See 20 C.F.R. § 655.135(d). Even after an employer's H-2A application is approved and the employer hires foreign laborers, the employer must continue to provide its American and foreign workers the minimum wages and working conditions laid out in the regulations to ensure the employment of foreign workers does not adversely affect the terms of employment of similarly employed American workers. 20 C.F.R. § 655.122(a).
Employers seeking H-2A certification are required to pay the higher of the Adverse Effect Wage Rate (AEWR), the prevailing wage, or the legal minimum wage. 20 C.F.R. § 655.120(a). The AEWR is a specially calculated wage based on the Department of Agriculture's Farm Labor Survey, which approximates what the prevailing wage would be if not for the hiring of foreign workers. See Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6891-93 (Feb. 12, 2010). Any employer-provided housing must meet standards set by the Occupational Safety and Health Administration. 20 C.F.R. § 655.122(d).
Although the same requirements generally apply to employers seeking H-2A certification for workers in any agricultural occupation, the H-2A regulations allow the Administrator of the Office of Foreign Labor Certification to create special procedures for processing certain H-2A applications. 20 C.F.R. § § 655.102, 655.120(a). This " special procedures" exception predated, and was continued in, the 2010 version of the H-2A regulations.
In 2011, the Department of Labor issued two Training and Employment Guidance Letters (TEGLs) providing special procedures for certain H-2A certifications. It published the TEGLs in the Federal Register without having gone through Administrative Procedure Act (APA) notice and comment procedures. See 5 U.S.C. § 553. TEGL No. 15-06 establishes special procedures for the certification process for cattleherders. TEGL No. 15-06, Change 1, Special Procedures: Labor Certification Process for Occupations Involved in the Open Range Production of Livestock Under the H-2A Program, 76 Fed. Reg. 47,243 (Aug. 4, 2011). TEGL No. 32-10 outlines special procedures for employers engaged in sheepherding and goatherding operations. TEGL No. 32-10, Special Procedures: Labor Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations Under the H-2A Program, 76 Fed. Reg. 47,256 (Aug. 4, 2011). The 2011 TEGLs update special procedures--also issued without notice and comment--that had long been in place for employers seeking H-2A certification in these occupations. The TEGLs reflect the Department of Labor's belief that the 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--make special H-2A procedures necessary. See TEGL No. 32-10, 76 Fed. Reg. at 47,256.
Compared to the general H-2A regulations applicable to most agricultural employers, the TEGLs establish significantly different procedures for herder employers seeking H-2A certification. Among other differences, the TEGLs impose different minimum wage requirements and provide lower standards for employer-provided housing. Compare 20 C.F.R. § 655.120(a), with TEGL No. 15-06, 76 Fed. Reg. at 47,244-45, and TEGL No. 32-10, 76 Fed. Reg. at 47,257-58; 20 C.F.R. § 655.122(d)(1)(i), and 29 C.F.R. § 1910.142, with TEGL No. 15-06, 76 Fed. Reg. at 47,246-47.
The plaintiffs in this action have substantial herding experience. Each originally came to the United States as an H-2A herder, but left his job due to poor or abusive working conditions. The plaintiffs currently have a lawful immigration status and are authorized to work in the United States, thus qualifying as U.S. workers under the INA and H-2A regulations. See 20 C.F.R. § 655.103(b). The plaintiffs have all submitted affidavits declaring they are qualified and available to work as herders. See J.A. 45-57. However, the plaintiffs state they are deterred from accepting herding jobs because of poor wages and working conditions, which they attribute to the lax standards established by the TEGLs and prior special procedures. They claim the Department of Labor has, without protecting U.S. workers, allowed employers easy access to a large supply of foreign herders. None of the plaintiffs has worked as a herder since, at least, May 2011. They aver they would prefer to work as herders, but they have not heard of any herding jobs offering decent wages and working conditions. See id .
The plaintiffs brought this action in October 2011. They allege the TEGLs constituted " rule making" within the meaning of the Administrative Procedure Act, 5 U.S.C. § 553, the TEGLs were subject to notice and comment requirements, and the Department of Labor violated the APA by issuing the TEGLs without those procedures. They ask the court to set aside the rules until they are adopted through notice-and-comment rulemaking.
The Mountain Plains Agricultural Services and the Western Range Association intervened in the action. Together, the intervenors' member herding operations are responsible for approximately sixty percent of the lamb and wool production in the United States. Their members employ 1,500 to 2,000 foreign sheepherders at any given time, and additional foreign cattle herders. In their brief, the intervenors state that virtually all of their members' herder employees are foreign workers admitted to the United States under the H-2A program.
The intervenors filed a motion to dismiss for lack of jurisdiction in the district court. All parties filed cross-motions for summary judgment. The district court granted the intervenors' motion to dismiss. The court concluded the plaintiffs lack Article III standing because they have not established a personal injury traceable to the disputed regulations. Alternatively, the district court held the plaintiffs lack prudential standing because they are not within the zone of interests protected by the
Immigration and Nationality Act. Having granted the motion to dismiss for lack of jurisdiction, the court did not reach the cross-motions for summary judgment. The plaintiffs appealed.
We begin our analysis by assuring ourselves of our ...