Case 1:20-cv-01452-DAD-JLT Document 31 Filed 10/21/20 Page 1 of 2
`
`
`
`
`
`Mark D. Selwyn (SBN 244180)
`Mark.Selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real,
`Suite 400
`Palo Alto, California 94306
`(650) 858-6031
`Telephone:
`(650) 858-6100
`Facsimile:
`
`Attorney for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`UNITED FARM WORKERS and UFW
`FOUNDATION,
`
`Plaintiffs,
`
`v.
`SONNY PERDUE, WILLIAM NORTHEY, and
`THE UNITED STATES DEPARTMENT OF
`AGRICULTURE,
`
` Case No. 1:20-CV-01452-DAD-JLT
`
`PLAINTIFFS’ RESPONSE TO
`DEFENDANTS’ NOTICE (ECF 30)
`
`
`
`Defendants.
`
`
`
`Defendants’ “Notice” only underscores the importance for this Court to order the U.S.
`Department of Agriculture (USDA) to conduct the Farm Labor Survey (FLS), as it has done for
`more than a century. That the U.S. Department of Labor (DOL) has transferred a draft final rule to
`the Office of Information and Regulatory Affairs (OIRA) in no way assures that an adequate
`replacement methodology for calculating the Adverse Effect Wage Rates (AEWRs) will be
`promulgated and effective in the short remaining time before DOL must promulgate AEWRs for
`2021. The only way to assure that the DOL can promulgate AEWRs for 2021 is to require the
`USDA to continue with its practice of conducting the FLS and publishing the Farm Labor Report
`(FLR).
`
`
`
`
`
`1
`
`
`
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ NOTICE
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`Case 1:20-cv-01452-DAD-JLT Document 31 Filed 10/21/20 Page 2 of 2
`
`
`
`DOL’s transfer of this draft final rule to OIRA—more than two months after the final
`rule’s promulgation was planned1—confirms that the timing of any replacement regulation for the
`determination of 2021 AEWRs remains uncertain.2 OIRA has as many as 90 days to review the
`rule under Executive Order 12866; the OMB director can extend that period another 30 days, and
`the Secretary of Labor could extend OIRA review indefinitely. See Exec. Order No. 12,866, 58
`Fed. Reg. 51735 § 6(b)(2) (Oct. 4, 1993).
`Nor does DOL’s transfer of a draft final rule to OIRA alleviate the irreparable injury that
`hundreds of thousands of farmworkers will suffer absent a temporary restraining order. Under
`current law, DOL cannot set the 2021 AEWRs unless USDA timely conducts the FLS and
`publishes the November FLR. See 20 C.F.R. § 655.103. Defendants admitted as much in their
`brief, see ECF 27 at 10-11; in the Declaration of Brian D. Pasternak, see ECF 27-1 at ¶ 7; and at
`oral argument. Therefore, if no replacement regulation has become effective and USDA has
`neither conducted the FLS nor published the November FLR, hundreds of thousands of
`farmworkers will lose the AEWRs’ legal protection and suffer severe economic hardship.
`
`Dated: October 21, 2020
`
`Respectfully submitted,
`/s/ Mark D. Selwyn
`MARK D. SELWYN (SBN 244180)
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real,
`Suite 400
`Palo Alto, California 94306
`(650) 858-6031
`Telephone:
`(650) 858-6100
`Facsimile:
`
`Attorney for Plaintiffs
`
`
`1 According to DOL’s official rulemaking timetable, the final rule was expected at the beginning of August 2020. See
`Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, regulations.gov (last visited Oct.
`21, 2020), https://www.regulations.gov/docket?D=ETA-2019-0007.
`
`2 Even if a final rule were promulgated in time to set 2021 AEWRs, that rule will likely be subject to judicial
`challenge, as the Government acknowledged at oral argument. Indeed, regulations affecting the H-2A program have a
`long history of drawing judicial challenges from both farmworkers and employers, so even a hypothetical final rule
`favorable to farmworkers would not be insulated from further delay. See, e.g., Shoreham Co-op. Apple Producers v.
`Donovan, 764 F.2d 135, 137-138 (2d Cir. 1985); Virginia Agr. Growers Ass'n, Inc. v. Donovan, 774 F.2d 89 (4th Cir.
`1985); N. Carolina Growers’ Ass’n, Inc. v. Solis, 644 F. Supp. 2d 664, 667 (M.D.N.C. 2009); United Farm Workers
`of Am., AFL-CIO v. Chao, 227 F. Supp. 2d 102 (D.D.C. 2002).
`2
`
`Case No. 1:20-CV-01452-DAD-JLT
`
`
`
`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ NOTICE
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`