`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20 Page 1 of 28
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`UNITED FARM WORKERS, et al.,
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`No. 1:20-cv-01452-DAD-JLT
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`Plaintiffs,
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`v.
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`SONNY PERDUE, et al.,
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`Defendants.
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`ORDER GRANTING PLAINTIFFS’ MOTION
`FOR A TEMPORARY RESTRAINING
`ORDER AND A PRELIMINARY
`INJUNCTION
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`(Doc. No. 3)
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`This matter came before the court on October 20, 2020 for a hearing on the motion for a
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`temporary restraining order and a preliminary injunction on behalf of plaintiffs United Farm
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`Workers and UFW Foundation (collectively, “plaintiffs”). (Doc. No. 3.) Attorneys Mark
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`Selwyn, Rachel Jacobson, Gregory Lantier, Nicholas Werle, Bruce Goldstein, and Gabriela Hybel
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`appeared via video for plaintiffs, and United States Department of Justice Trial Attorney Michael
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`Gaffney appeared via video for defendants Sonny Perdue, the Secretary of Agriculture; William
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`Northey, the United States Department of Agriculture’s (“USDA”) Under Secretary for Farm
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`Production and Conservation; and USDA (collectively, “defendants”). For the reasons explained
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`below, the court will grant plaintiffs’ motion for a temporary restraining order and a preliminary
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`injunction.
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`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20 Page 2 of 28
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`BACKGROUND
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`In their complaint, plaintiffs allege the following. Federal law instructs the United States
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`Secretary of Agriculture to procure and preserve information concerning agriculture, including
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`“by the collection of statistics” and “any other appropriate means within his power.” (Doc. No. 1
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`(“Compl.”) at ¶ 20.) Since 1910, the Secretary has satisfied that statutory mandate in part by
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`conducting the Agricultural Labor Survey, often referred to as the Farm Labor Survey (“FLS”).
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`(Id. at ¶ 21.) The FLS collects information from farm employers to obtain data on farm
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`employment, hours worked, wages paid, and other statistics. (Id.) For over 100 years, defendant
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`USDA has consistently employed the FLS to collect data regarding farm labor and wages. (Id.)
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`The FLS is traditionally conducted in April and October. (Id. at ¶ 22.) During those months, the
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`survey collects wage and employment data for four reference weeks, one in each quarter, from
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`farms and ranches with $1,000.00 or more in annual agricultural sales revenue for all states
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`except Alaska. (Id.) The FLS samples approximately 35,000 farms and ranches. (Id.) Most FLS
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`data is collected by mail and computer-assisted phone interviews, with personal interviews used
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`for some large operations and those with special handling arrangements. (Id.)
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`The National Agricultural Statistics Service—USDA’s statistical branch—publishes the
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`FLS data semiannually in May and November in the Farm Labor Report (“FLR”). (Id. at ¶ 23.)
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`The May report includes employment and wage estimates based on January and April reference
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`weeks, and the November report includes estimates based on July and October reference weeks.
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`(Id.) The report includes quarterly estimates of the number of hired workers and average hours
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`worked per worker during each reference week. (Id.) The report also includes quarterly
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`estimates of average hourly wage rates for field workers; livestock workers; field and livestock
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`workers combined; and all hired workers, including supervisors, managers, and other workers.
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`(Id.) The November report, in addition, provides annual data based on the quarterly estimates.
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`(Id.)
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`The H-2A agricultural guest worker program permits agricultural employers to hire
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`foreign workers to perform agricultural work on a temporary basis when domestic labor markets
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`cannot supply an adequate number of workers at a particular time for a certain job. (Id. at ¶ 36.)
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`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20 Page 3 of 28
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`Employers are only authorized to hire foreign guest workers, however, if the United States
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`Department of Labor (“DOL”) certifies that the foreign workers’ temporary employment “will
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`not adversely affect the wages and working conditions of workers in the United States similarly
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`employed.” (Id.) To avoid adverse effects to U.S. workers’ wages, DOL regulations require that
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`employers utilizing the H-2A program pay a wage that is the highest of the (1) Adverse Effect
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`Wage Rate (“AEWR”), (2) the prevailing wage rate,1 (3) an agreed-upon collective bargaining
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`wage, or (4) the federal or state minimum wage. (Id. at ¶ 37.)
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`Under those regulations, the DOL relies primarily on a two-pronged approach based on
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`the AEWR and prevailing wage rate to guard against wage depression that would otherwise result
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`from the hiring of large numbers of foreign agricultural workers. (Id. at ¶ 38.) The prevailing
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`wage rate protects local wages paid for particular jobs, while the AEWR sets a state-wide wage
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`floor to prevent wage disparities for jobs at H-2A employers in larger areas. (Id.) The DOL has
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`recognized that it is the existence of both the AEWR and prevailing wage rates that ensures that
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`U.S. workers are adequately protected from decreased wages caused by an influx of foreign guest
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`workers. (Id.) The AEWR, however, is the primary wage rate under the H-2A program because
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`it is higher than the other minimum wages in most circumstances. (Id.) As a result, the AEWR
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`determines the wages of approximately 92 percent of the farmworkers employed by H-2A
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`program employers.
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`DOL regulations have required the DOL to use the FLS to calculate the AEWR for the H-
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`2A program since the program’s inception in 1986, and the DOL has used FLS data for the H-
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`2A’s predecessor program since 1953. (Id. at ¶ 39.) Because of the DOL’s longstanding reliance
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`on the survey, defendant USDA conducts the FLS in cooperation with the DOL, and the DOL has
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`funded the FLS since July 2011 pursuant to a memorandum of understanding between the two
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`agencies. (Id.) In 2010, the DOL recognized that using data other than the FLS to calculate
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`AEWRs “entails a significant risk that U.S. workers may in the future experience wage
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`1 Plaintiffs note in their motion that under the H-2A program, the “prevailing wage” is based on
`the wages paid in a local geographic area for a particular job. (Doc. No. 3 at 11) (citing Doc. No.
`3-10).
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`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20 Page 4 of 28
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`depression as a result of unchecked expansion of the demand for foreign workers.” (Id. at ¶ 40.)
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`The DOL explained that “[t]he FLS is the only annually available data source that actually uses
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`information sourced directly from farmers,” which “is a strong advantage of the FLS as the
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`AEWR data source compared to all other alternatives.” (Id.) The DOL similarly explained in a
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`2019 notice of proposed rulemaking that “[t]he FLS [remained] the Department’s preferred wage
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`source for establishing the AEWR because it is the only comprehensive wage survey that collects
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`data from farm and ranch employers.” (Id. at ¶ 41.) The DOL also recognized that it had “always
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`used the FLS to set the H-2A AEWR, with the exception of a brief period under” its 2008 rule.
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`(Id.) Most states do not collect, and therefore do not publish, local prevailing wage rates for jobs
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`subject to the H-2A program. (Id. at ¶ 59.) And most states that do publish prevailing wage rates
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`do not publish prevailing wage rates for general crop workers. (Id.) Accordingly, in the absence
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`of the AEWR, most minimum H-2A wages would be determined by the highest of the federal
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`minimum wage of $7.25 per hour or the applicable state minimum wage. (Id.)
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`Agricultural employers have continued to rely heavily on the H-2A program in 2020, and
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`their substantial use of that program will likely continue in 2021. (Id. at ¶ 55.) During the first
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`three quarters of the 2020 fiscal year, the DOL received 12,351 applications from employers
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`seeking certification for 232,362 H-2A workers and approved the hiring of 224,290 of those
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`workers. (Id.) Employers in Washington State received approvals to hire 24,785 H-2A workers,
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`and California employers received approvals to hire 21,337 H-2A workers. (Id.) The October
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`2020 survey was expected to be conducted from on or about October 19, 2020 through on or
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`about November 7, 2020, and the FLR was expected to be published in or about the week of
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`November 23, 2020. (Id. at ¶ 22.)
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`On September 30, 2020, defendant USDA published a cursory, one-page notice (“the
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`Suspension Notice”) in the Federal Register announcing the suspension of October 2020 FLS data
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`collection and the cancellation of its November 2020 publication of the biannual FLR. (Id. at
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`¶¶ 2, 26); see also Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports
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`by Suspending Data Collection for October 2020, 85 Fed. Reg. 61719 (Sept. 30, 2020).
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`According to plaintiffs, defendant USDA did not solicit any public comment or employ any
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`formal rulemaking procedures despite the Suspension Notice amounting to final agency action
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`with respect to the suspension of FLS data collection and FLR publication, and defendant USDA
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`lacks any rationale for suspending the FLS data collection and FLR publication. (Compl. at
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`¶¶ 26, 27.)
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`Plaintiffs filed their complaint against defendants seeking declaratory and injunctive relief
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`on October 13, 2020. (Compl.) Plaintiffs’ complaint asserts three claims for relief: (1) a
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`violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, based upon defendant
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`USDA’s failure to consider important aspects of its decision in this regard; (2) a violation of the
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`APA, 5 U.S.C. § 706, based upon defendant USDA’s failure to offer a reasoned explanation for
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`its decision; and (3) a violation of the APA, 5 U.S.C. § 553, due to defendant USDA’s failure to
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`comply with the requirements of notice-and-comment rulemaking. Plaintiffs filed the pending
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`motion for a temporary restraining order and a preliminary injunction on October 13, 2020. (Doc.
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`No. 3.) On October 19, 2020, defendants filed their opposition to plaintiffs’ motion. (Doc. No.
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`27.) The hearing on plaintiffs’ motion was held on October 20, 2020. The day after that hearing,
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`defendants filed a notice stating that the DOL had transmitted to the Office of Information and
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`Regulatory Affairs (“OIRA”) a draft final rule for adopting a new AEWR methodology on
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`October 21, 2020. (Doc. No. 30); see also See OIRA, Pending EO 12866 Regulatory Review
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`(October 21, 2020), https://www.reginfo.gov/public/do/eoDetails?rrid=131303. Plaintiffs
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`immediately filed a response to defendants’ notice on October 21, 2020. (Doc. No. 31.)
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`The standard governing the issuing of a temporary restraining order is “substantially
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`LEGAL STANDARD
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`identical” to the standard for issuing a preliminary injunction. See Stuhlbarg Intern. Sales Co. v.
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`John D. Brush & Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). “The proper legal standard for
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`preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the
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`merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
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`balance of equities tips in his favor, and that an injunction is in the public interest.’” Stormans,
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`Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council,
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`Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th
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`Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just
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`possible, in order to obtain a preliminary injunction.”); Am. Trucking Ass’n, Inc. v. City of Los
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`Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth Circuit has also held that an “injunction
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`is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were
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`raised and the balance of hardships tips sharply in the plaintiff’s favor.” Alliance for Wild
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`Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011) (quoting Lands Council v. McNair,
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`537 F.3d 981, 97 (9th Cir. 2008) (en banc)).2 The party seeking the injunction bears the burden
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`of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009);
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`see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff
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`must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must
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`demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”)
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`Finally, an injunction is “an extraordinary remedy that may only be awarded upon a clear
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`showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.
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`Here, plaintiffs seek a temporary restraining order and a preliminary injunction: (1)
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`ANALYSIS
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`barring defendants from discontinuing the FLS and ceasing publication of the FLR as defendant
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`USDA announced on September 30, 2020 was its intention, and (2) requiring defendants to
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`maintain the status quo by continuing to conduct the FLS that had previously been scheduled to
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`begin on or around October 19, 2020, and publishing the next edition of the FLR that had been
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`scheduled for November 2020. (Doc. No. 3 at 6.)
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`“The APA sets forth the procedures by which federal agencies are accountable to the
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`public and their actions subject to review by the courts.” Dep’t of Homeland Sec. v. Regents of
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`the Univ. of California, __U.S.__, 140 S. Ct. 1891, 1905 (2020) (internal citation and quotation
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`marks omitted). Only “final agency actions” are reviewable under the APA. 5 U.S.C. § 704; see
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`2 The Ninth Circuit has found that this “serious question” version of the circuit’s sliding scale
`approach survives “when applied as part of the four-element Winter test.” All. for the Wild
`Rockies, 632 F.3d at 1134. “That is, ‘serious questions going to the merits’ and a balance of
`hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,
`so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the
`injunction is in the public interest.” Id. at 1135.
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`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20 Page 7 of 28
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`also 5 U.S.C. § 701 (for purposes of the APA’s judicial review provisions, “agency action” has
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`“the meaning[] given” by § 551). An “‘agency action’ includes the whole or a part of an agency
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`rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C.
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`§ 551(13). The Act “requires agencies to engage in reasoned decisionmaking, and directs that
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`agency actions be set aside if they are arbitrary or capricious.” Regents, 140 S. Ct. at 1905
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`(internal citations and quotation marks omitted). An agency’s “determination in an area
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`involving a ‘high level of technical expertise’” is to be afforded deference. Lands Council v.
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`McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (citing 5 U.S.C. § 706(2)(A)), overruled on
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`other grounds by Winter, 555 U.S. 7. The district court’s role “is simply to ensure that the
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`[agency] made no ‘clear error of judgment’ that would render its action ‘arbitrary and
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`capricious.’” Id. (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)).
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`Under § 706 of the APA, the court is “to assess only whether the decision was based on a
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`consideration of the relevant factors and whether there has been a clear error of judgment.”
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`Regents, 140 S. Ct. at 1905 (internal citation and quotation marks omitted). “Factual
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`determinations must be supported by substantial evidence,” and “[t]he arbitrary and capricious
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`standard requires ‘a rational connection between facts found and conclusions made.’” League of
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`Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 759–60
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`(9th Cir. 2014) (internal citations omitted).
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`This requires the court to ensure that the agency has not, for instance,
`“relied on factors which Congress has not intended it to consider,
`entirely failed to consider an important aspect of the problem, offered
`an explanation for its decision that runs counter to the evidence
`before the agency, or [an explanation that] is so implausible that it
`could not be ascribed to a difference in view or the product of agency
`expertise.”
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`McNair, 537 F.3d at 987 (quoting Motor Vehicle Mfrs. Assn., Inc. v. State Farm Mut. Auto. Ins.
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`Co., 463 U.S. 29, 43 (1983)).
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`As noted, plaintiffs must make a sufficient showing as to all four prongs of the Winter test
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`in order to be entitled to the requested preliminary relief. All. for the Wild Rockies, 632 F.3d at
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`1135. Before considering those factors and plaintiffs’ showing with respect to each, the court will
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`first address when review of an agency decision under the APA is appropriate.
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`A.
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`Administrative Procedure Act Requirements
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`As a threshold matter, defendants argue that the Suspension Notice at issue here is not
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`reviewable under the APA for two reasons: (1) defendant USDA’s decision is an exercise of
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`unreviewable agency discretion; and (2) the controversy is not ripe in that the decision to suspend
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`FLS data collection is not final agency action from which legal consequences directly flow.
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`(Doc. No. 27 at 16–21.) The court considers each of defendants’ arguments in turn below.
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`1.
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`Whether the Suspension Notice is an Exercise of Unreviewable Agency Discretion
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`First, defendants argue that the decision to suspend collection of FLS data and publication
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`of the FLR is committed solely to agency discretion and is therefore unreviewable. The APA
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`does not provide review for “agency action” that “is committed to agency discretion by law.” 5
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`U.S.C. § 701(a)(2). An action is committed to agency discretion, and therefore beyond the scope
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`of APA review, “if the statute is drawn so that a court would have no meaningful standard against
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`which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830
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`(1985). “A statute need not expressly preclude review for the agency’s action to be ‘committed to
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`agency discretion.’” Int’l Bhd. Of Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944, 954 (9th Cir.
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`2017) (internal citation omitted).
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`This doctrine is intended to prevent judicial interference with those agency decisions that
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`“‘involve[] a complicated balancing of a number of factors which are peculiarly within [an
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`agency’s] expertise,’” leaving “‘no meaningful standard against which to judge the agency’s
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`exercise of discretion.’” Lincoln v. Vigil, 508 U.S. 182, 190–91 (1993) (quoting Heckler, 470
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`U.S. at 830). But “the § 701(a)(2) exception for action committed to agency discretion [is to be
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`read] quite narrowly, restricting it to those rare circumstances where the relevant statute is drawn
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`so that a court would have no meaningful standard against which to judge the agency’s exercise
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`of discretion.” Dep’t of Commerce v. New York, __U.S.__, 139 S. Ct. 2551, 2568 (2019)
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`(internal citation and quotation marks omitted). Application of this doctrine has, however,
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`generally been limited to “categories of administrative decisions that courts traditionally have
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`regarded as committed to agency discretion, such as a decision not to institute enforcement
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`proceedings, or a decision by an intelligence agency to terminate an employee in the interest of
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`national security.” Id. (internal citations and quotation marks omitted).
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`Defendants assert that this case presents a statutory and regulatory void similar to that
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`considered by the Supreme Court in Lincoln v. Vigil, 508 U.S. 182 (1993). There, the Indian
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`Health Service decided to discontinue a clinical program for children and reallocate
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`appropriations for a nationwide treatment program. The court explained that the relevant
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`appropriations Acts did “not so much as mention the Program, and both the Snyder Act and the
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`Improvement Act likewise speak about Indian health only in general terms.” Id. at 193. “Like
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`the decision against instituting enforcement proceedings, then, an agency’s allocation of funds
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`from a lump-sum appropriation requires ‘a complicated balancing of a number of factors which
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`are peculiarly within its expertise.’” Id. The court therefore ruled that the “decision to terminate
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`the Program was committed to the Service’s discretion” and was “accordingly unreviewable
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`under 5 U.S.C. § 701(a)(2).” Id. at 194.
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`The undersigned is not persuaded that the holding in Lincoln is applicable here. Rather,
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`this case is more analogous to that considered by the Supreme Court in Department of Commerce
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`v. New York, __U.S.__, 139 S. Ct. 2551 (2019). There, a group of plaintiffs challenged the
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`Secretary of Commerce’s decision to reinstate a question about citizenship on the 2020 census
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`questionnaire on both constitutional and statutory grounds. The government asserted that “the
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`Census Act commits to the Secretary’s unreviewable discretion decisions about what questions to
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`include on the decennial census questionnaire.” Id. at 2567–68. The Supreme Court rejected that
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`argument, holding that while the Act did confer broad authority to the Secretary, it “do[es] not
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`leave his discretion unbounded” since the taking of the census is not one of those areas
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`traditionally committed to agency discretion. Id. at 2568. The court distinguished the Census Act
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`from the National Security Act, “which gave the Director of Central Intelligence discretion to
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`terminate employees whenever he ‘deem[ed]’ it ‘advisable.’” Id. Furthermore, the court noted,
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`“by mandating a population count that will be used to apportion representatives, the Act imposes
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`a duty to conduct a census that is accurate and that fairly accounts for the crucial representational
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`rights that depend on the census and the apportionment.” Id. at 2568–69 (internal citations and
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`quotation marks omitted).
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`In the present case, the Suspension Notice was issued under the authority of 7 U.S.C.
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`§ 2204(a), which directs the Secretary of Agriculture to
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`procure and preserve all information concerning agriculture . . .
`which he can obtain by means of books and correspondence, and by
`practical and scientific experiments, accurate records of which
`experiments shall be kept in his office, by the collection of statistics,
`and by any other appropriate means within his power.
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`(emphasis added). Defendant USDA itself has noted that “[t]he 1938 Agricultural Adjustment
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`Act, as amended, requires USDA to compute parity prices of farm products,” and that
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`computation requires an index of wage rates. Submission for OMB Review; Comment Request,
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`83 Fed. Reg. 50631-02. “Agricultural labor statistics are an integral part of National Agricultural
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`Statistics Service (NASS) primary function of collecting, processing, and disseminating current
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`state, regional, and national agricultural statistics,” and the FLS “is the only timely and reliable
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`source of information on the size of the farm worker population.” Id. Although defendants assert
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`that the DOL recognized in 2008 and 2011 that the FLS could be suspended (Doc. No. 27 at 18),
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`that fact itself does not render defendant USDA’s decision unreviewable. As plaintiffs’ counsel
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`noted at the hearing on the pending motion, so long as defendant USDA’s FLS and FLR are the
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`sole means for the DOL to compute the AEWR, defendant USDA lacks discretion to simply end
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`the survey without articulating a compelling rationale until and unless an adequate replacement or
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`regulation is in place.
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`In short, the court is not persuaded that the Suspension Notice is an exercise of
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`unreviewable agency discretion. The Agricultural Adjustment Act imposes a duty on defendant
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`USDA to procure agricultural statistics, including those that affect farmworkers’ wage rights.
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`The statute does not include unbounded discretionary language, but instead directs the Secretary
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`of Agriculture to collect all statistics. Thus, this situation is distinguishable from those where
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`there is no meaningful standard against which to judge the agency’s exercise of discretion,
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`particularly since the FLS is recognized as the only reliable source of farmworker wage
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`information. Accordingly, the court will review the Suspension Notice under § 701 of the APA.
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`2.
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`Whether the Suspension Notice is a Final Agency Action Ripe for Review
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`The court must next determine whether the Suspension Notice constitutes a final agency
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`action as defined by the APA. As noted above, only “final agency actions” are reviewable. 5
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`U.S.C. § 704. To be final, an agency action must satisfy two conditions:
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`First, the action must mark the “consummation” of the agency’s
`decisionmaking process—it must not be of a merely tentative or
`interlocutory nature. And second, the action must be one by which
`“rights or obligations have been determined,” or from which “legal
`consequences will flow.”
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`Bennett v. Spear, 520 U.S. 154, 177–78 (1997). “The general rule is that administrative orders
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`are not final and reviewable unless and until they impose an obligation, deny a right, or fix some
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`legal relationship as a consummation of the administrative process.” Ukiah Valley Med. Ctr. v.
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`F.T.C., 911 F.2d 261, 264 (9th Cir. 1990) (internal citation and quotation marks omitted). “Other
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`relevant factors include whether the order has the status of law or comparable legal force, and
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`whether immediate compliance with its terms is expected.” Id.
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`While there are limits to what constitutes an “agency action” in this sense, the Supreme
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`Court has held that “[t]he bite in the phrase ‘final action’ . . . is not in the word ‘action,’ which is
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`meant to cover comprehensively every manner in which an agency may exercise its power. It is
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`rather in the word ‘final.’” Whitman v. Am. Trucking Associations, 531 U.S. 457, 478 (2001).
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`Courts have concluded that “agency action” is to be broadly defined, and “[e]ach word in that
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`definition has its own expansive definition.” Nat’l Urban League v. Ross, No. 20-cv-05799-
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`LHK, 2020 WL 5739144, at *19 (N.D. Cal. Sept. 24, 2020), order clarified, No. 20-cv-05799-
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`LHK, 2020 WL 5876939 (N.D. Cal. Oct. 1, 2020).
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`Here, defendants argue that the Suspension Notice cannot be categorized as any type of
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`agency action. (Doc. No. 27 at 18–19.) In making this argument they emphasize that
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`the term “agency action” is “not so all-encompassing as to authorize
`us to exercise judicial review over everything done by an
`administrative agency.” Indep. Equip. Dealers Ass’n v. EPA, 372
`F.3d 420, 427 (D.C. Cir. 2004), [and] “[m]uch of what an agency
`does is in anticipation of agency action,” such as “conduct[ing]
`studies.” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460
`F.3d 13, 19 (D.C. Cir. 2006).
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`(Doc. No. 27 at 19.) Defendants contend that even if the Suspension Notice is an agency action,
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`it is not a final one. Defendants do not address the first prong of Bennett which requires that the
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`action must mark the “consummation” of the agency’s decisionmaking process. Instead, they
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`argue the Suspension Notice does not satisfy the second prong—that legal consequences do not
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`flow from the Suspension Notice—because it does not have any “direct and immediate effect” on
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`plaintiffs and it does not demand “immediate compliance” with its terms. (Doc. No. 27 at 20)
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`(citing Indus. Customers of Nw. Utils. v. Bonneville Power Admin., 408 F.3d 638, 646 (9th Cir.
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`2005)). Defendants contend that plaintiffs’ speculative concerns are ultimately “about
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`downstream actions that may or may not occur at a later date by a separate entity—principally
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`DOL.” (Id.)
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`Attached to defendants’ opposition to the pending motion is the declaration of Brian
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`Pasternak, the current Administrator of the Office of Foreign Labor Certification, Employment
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`and Training Administration (“OFLC”) at the DOL, who has served in senior management
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`positions at the OFLC since 2006. (Doc. No. 27-1.) Therein, declarant Pasternak acknowledges
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`that because FLS data is necessary for publishing AEWRs under DOL’s current H-2A
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`regulations, there is immediate need for DOL regulatory action to revise the AEWR methodology
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`as a result of defendant USDA’s recently issued Suspension Notice.3 (Id. at ¶¶ 7, 9.) Declarant
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`Pasternak also declares that the DOL is “taking this issue under consideration as it develops a
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`final rule establishing a new AEWR methodology, which it intends to publish and have effective
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`before the end of the calendar year to ensure that there is no disruption in setting these AEWRs
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`3 At the hearing on the pending motion, the court noted the brevity and lack of detail of the
`Pasternak Declaration. The court has read that declaration carefully. In it, declarant Pasternak
`states that his office was first notified of defendant USDA’s intent to terminate the existing
`memorandum of understanding between the DOL and USDA for the collection, computation and
`publication of the required information on September 14, 2020. (Doc. No. 27-1 at 2, ¶ 6.) This
`was less than a year after the memorandum was entered into by the two agencies and only sixteen
`days before defendant USDA published its one-page Suspension Notice in the Federal Register.
`As declarant Pasternak has characterized in an understated manner, defendant USDA’s decision
`to issue its Suspension Notice has created “the immediate need for regulatory action” on the part
`of the DOL (Doc. No. 27–1 at ¶ 9), because it appears the survey it is required to rely upon will
`not, absent the granting of the pending motion, exist. It seems apparent based upon a fair reading
`of the Pasternack Declaration that this was not a fully coordinated action between the DOL and
`defendant USDA, and that the DOL is now scrambling.
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`Case 1:20-cv-01452-DAD-JLT Document 33 Filed 10/28/20