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`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 1 of 15
`
`JEFFREY BOSSERT CLARK
`Acting Assistant Attorney General
`JOHN V. COGHLAN
`Deputy Assistant Attorney General
`ERIC WOMACK
`Assistant Branch Director
`MICHAEL J. GAFFNEY (D.C. Bar No. 1048531)
`Trial Attorney
`United States Department of Justice
`Civil Division, Federal Programs Branch
`1100 L St. NW
`Washington, DC 20005
`Tel: (202) 514-2356
`Fax: (202) 616-8470
`Email: Michael.J.Gaffney@usdoj.gov
`
`Attorneys for Defendants
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`FRESNO DIVISION
`
`
`
`Case No. 1:20-CV-01452-DAD-JLT
`
`DEFENDANTS’ MOTION TO MODIFY AND
`DISSOLVE TRO AND PRELIMINARY
`INJUNCTION
`
`NO HEARING REQUESTED
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`UNITED FARM WORKERS, et al.,
`
`
`
`
`
`
`
`Plaintiffs,
`
` v.
`
`SONNY PERDUE, in his official capacity as
`the Secretary of the United States Department
`of Agriculture, et al.,
`
`
`
`

`

`
`
`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 2 of 15
`
`TABLE OF CONTENTS
`
`INTRODUCTION .......................................................................................................................................1
`LEGAL STANDARD ..................................................................................................................................4
`ARGUMENT ...............................................................................................................................................5
`I.
`The Legal Basis for the Preliminary Injunction “Has Evaporated.” ....................................6
`II.
`Plaintiffs Can No Longer Identify Any Injury Redressable by the Preliminary
`Injunction. ............................................................................................................................8
`CONCLUSION ..........................................................................................................................................10
`
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 3 of 15
`
`TABLE OF AUTHORITIES
`
`
`Cases Page(s)
`
`A&M Records, Inc. v. Napster, Inc.,
`284 F.3d 1091 (9th Cir. 2002) ................................................................................................................ 4
`
`
`Agostini v. Felton,
`521 U.S. 203 (1997) ................................................................................................................................ 4
`
`
`Am. Rivers v. Nat’l Marine Fisheries Serv.,
`126 F.3d 1118 (9th Cir. 1997) ................................................................................................................ 5
`
`
`Amarel v. Connell,
`102 F.3d 1494 (9th Cir. 1996) ................................................................................................................ 4
`
`
`Amylin Pharm., Inc. v. Eli Lilly & Co.,
`456 F. App’x 676 (9th Cir. 2011) ........................................................................................................... 9
`
`
`Arizonans for Official English v. Arizona,
`520 U.S. 43 (1997) .................................................................................................................................. 5
`
`
`Bellevue Manor Assocs. v. United States,
`165 F.3d 1249 (9th Cir. 1999) ................................................................................................................ 4
`
`
`California v. EPA,
`No. 19-17480, 2020 WL 6193497 (9th Cir. Oct. 22, 2020) ................................................... 4, 5, 6, 8, 9
`
`
`Caribbean Marine Servs. Co. v. Baldrige,
`844 F.2d 668 (9th Cir. 1988) .................................................................................................................. 8
`
`
`Genesis Healthcare Corp. v. Symczyk,
`569 U.S. 66 (2013) .......................................................................................................................... 5, 7, 8
`
`
`Gilmore v. California,
`220 F.3d 987 (9th Cir. 2000) .................................................................................................................. 4
`
`
`Horne v. Flores,
`557 U.S. 433 (2009) ................................................................................................................................ 4
`
`
`Lewis v. Cont’l Bank Corp.,
`494 U.S. 472 (1990) ................................................................................................................................ 5
`
`
`Mamigonian v. Biggs,
`710 F.3d 936 (9th Cir. 2013) .................................................................................................................. 7
`
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 4 of 15
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`Martinez v. Wilson,
`32 F.3d 1415 (9th Cir. 1994) .................................................................................................................. 6
`
`
`Mateo v. M/S KISO,
`805 F. Supp. 761 (N.D. Cal. 1991) ......................................................................................................... 4
`
`
`Miller v. Benson,
`68 F.3d 163 (7th Cir. 1995) .................................................................................................................... 9
`
`
`Nat’l Min. Ass’n v. Dep’t of Interior,
`251 F.3d 1007 (D.C. Cir. 2001) .............................................................................................................. 7
`
`
`Stratman v. Leisnoi, Inc.,
`545 F.3d 1161 (9th Cir. 2008) ............................................................................................................ 5, 8
`
`
`Statutes
`
` 5
`
` U.S.C. § 704 ............................................................................................................................................. 6
`
`
`Federal Rules
`
`Fed. R. Civ. P. 60 ........................................................................................................................................ 4
`
`Federal Regulations
`
`20 C.F.R. § 655.120 .................................................................................................................................... 9
`
`84 Fed. Reg. 69,774 (Dec. 19, 2019) ...................................................................................................... 7, 9
`
`85 Fed. Reg. 70,445 (Nov. 5, 2020)................................................................................................... passim
`
`
`
`
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 5 of 15
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that at the earliest practical date to be set by the Court, and pursuant to
`Local Rule 231(e), Defendants the Department of Agriculture (“USDA”), Secretary Perdue, and
`Undersecretary Northey will and hereby do move the Court to modify and dissolve the temporary
`restraining order and preliminary injunction issued on October 28, 2020. See Order Granting Plaintiffs’
`Motion for a Temporary Restraining Order and Preliminary Injunction, ECF 33 (“Order” or “October 28
`Order”). Dissolution of the preliminary injunction is warranted because the now-final rule issued by the
`Department of Labor (“DOL”) and published on November 5, 2020, negates the legal premise for the
`Court’s October 28 Order; as a result, Plaintiffs now lack any Article III injury which is redressed by
`continued maintenance of the injunction. The injunction should therefore be dissolved. Defendants also
`respectfully request an administrative stay during the pendency of this motion.
`This Motion is supported by the accompanying Memorandum of Points and Authorities, and such
`other written or oral argument as may be presented at or before the time this motion is taken under
`submission by the Court. In accordance with this Court’s Standing Order, see ECF 6-1 at 2, counsel for
`Defendants conferred with Plaintiffs’ counsel prior to filing this motion with the Court. On November 4,
`2020, Counsel discussed the substance of Defendants’ motion by phone. Counsel did not reach an
`alternative resolution. Plaintiffs oppose the relief sought in this motion.
`Defendants submit this motion for decision without oral argument in light of the nature and timing
`of the relief sought. See ECF 6-1 at 1. Defendants’ counsel is, however, available for argument at the
`Court’s earliest convenience.
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiffs’ Complaint and the analysis contained in the Court’s October 28 Order both turned on
`Plaintiffs’ assertion that USDA’s Farm Labor Survey (“FLS”) and Farm Labor report (“FLR”) are the sole
`means for DOL to determine the Adverse Effect Wage Rate (“AEWR”). Today, DOL published a new
`AEWR regulation that negates that premise. See Adverse Effect Wage Rate Methodology for the
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85
`Fed. Reg. 70,445, 70,476-70,477 (Nov. 5, 2020) (to be codified at 20 C.F.R. pt. 655).
`Plaintiffs filed this lawsuit after USDA issued a notice announcing its intention to suspend the
`collection of FLS data scheduled for October 2020 and the publication of the FLR scheduled for November
`2020. To explain the harm they would suffer absent the collection of this data, Plaintiffs alleged as
`follows: If USDA fails to collect FLS data, DOL will be “unable to publish the AEWR needed to
`administer the H-2A program,” which means “employers will be permitted to pay the next highest wage
`between either the prevailing wage rate in the local area of employment or the federal or state minimum
`wage,” and, as “a result, H-2A workers and U.S. farmworkers working for H-2A program employers will
`be paid materially less.” Complaint, ECF 1 (“Compl.”) ¶ 58. In short: If no data is collected by USDA,
`then no AEWR can be set by DOL, and therefore Plaintiffs’ members could be paid lower wages.
`The Court’s October 28 Order rested on the same rationale. In concluding that USDA’s decision
`was not “committed to agency discretion by law,” for example, the Court explained that “so long as
`defendant USDA’s FLS and FLR are the sole means for the DOL to compute the AEWR, defendant USDA
`lacks discretion to simply end the survey without articulating a compelling rationale until and unless an
`adequate replacement or regulation is in place.” Order at 8, 10 (emphasis added). The Court held that
`USDA’s decision to suspend data collection constituted reviewable “final agency action” because that
`action “is part of another agency action: the DOL’s creation of a methodology for calculating the
`AEWRs.” Id. at 13. The Court’s decision relied on its finding that the “FLS is a prerequisite to calculating
`the AEWRs because current DOL regulations require it to rely on the FLS in doing so.” Id. at 14; see also
`id. (“USDA cannot deny that its issuing of the FLS is a critical part of calculating the AEWRs and thus is
`an agency action. By extension, suspending the FLS is also an agency action for purposes of review under
`the APA.”) (internal citation omitted).
`The Court also based its irreparable harm finding on DOL’s use of USDA’s FLS data. The Court
`stated that “the harm that plaintiffs allege is directly traceable to defendant USDA’s decision to suspend
`the FLS because the Suspension Notice and the AEWRs are inextricably connected.” Id. at 25.
`“Moreover, as the regulatory scheme currently exists, the AEWRs cannot be calculated without the FLS.”
`Id. The Court then explained that while future regulatory changes could alter the analysis, the case was
`
`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`not yet moot: “The fact that the controversy may be mooted in the future if the DOL’s impending final
`rule removes any reliance on the FLS does not compel the dismissal of this challenge.” Id.
`Under DOL’s new AEWR regulation, published today in the Federal Register, USDA’s collection
`and publication of new annual FLS data is no longer necessary for DOL to calculate the AEWR. See 85
`Fed. Reg. at 70,452-70,454. The new rule revises the AEWR methodology to be “more predictable, less
`volatile, and easier to understand.” Id. at 70,452. The revised methodology uses the 2020 AEWRs “as
`the baseline AEWR for the overwhelming majority of H-2A job opportunities” for 2021 and 2022,
`adjusting the wage rates annually, beginning in 2023, based on the Employment Cost Index for wages and
`salaries computed by the Bureau of Labor Statistics. Id. This is the “same index [DOL] currently uses to
`adjust the monthly AEWRs for job opportunities in herding or the production of livestock on the range.”
`Id. For “all occupations other than field and livestock workers (combined),” DOL “will determine the
`AEWRs as the annual statewide average hourly gross wage for the occupation in the state or region based
`on the [Occupational Employment Survey (“OES”)] or, where a statewide average hourly gross wage is
`not reported, the national average hourly gross wage for the occupation based on the OES survey.” Id. at
`70,452, 70,458. “[U]se of the OES survey will allow DOL to consistently establish occupation-specific
`AEWRs for these higher-skilled job opportunities to better protect against adverse effect on workers in
`the United States similarly employed.” Id.; see also Defs.’ Opp. to Pls.’ Mot. for TRO, ECF 27 at 4
`(discussing DOL’s July 26, 2019 proposed rule, including the proposal to use OES data for certain
`occupations). DOL has “determined that this revised methodology best addresses commenters’ concerns
`regarding the unpredictability and volatility of the AEWRs in recent years.” 85 Fed. Reg. at 70,452.
`DOL’s new rule negates the premise underlying Plaintiffs’ claim of irreparable harm and the basis
`for this Court’s Order. USDA’s decision to suspend data collection therefore cannot be the cause of any
`harm that Plaintiffs allege: whether USDA collects and publishes FLS data before the end of the year will
`have no effect on the 2021 AEWRs and therefore no effect on wage rates for farm workers. See id. at
`70,453. The controversy alleged has been mooted because DOL’s final rule “removes any reliance” on
`USDA producing a new FLS. See Order at 25. In light of the new DOL rule, USDA asks this Court to
`dissolve the October 28 TRO and preliminary injunction. USDA also respectfully requests that the Court
`issue an administrative stay during the pendency of this motion.
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`LEGAL STANDARD
`“A district court has inherent authority to modify a preliminary injunction” in light of new facts or
`new law. A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1098 (9th Cir. 2002). “[I]nterlocutory
`orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any
`time prior to final judgment.” Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996).
`In evaluating a motion to modify or dissolve a preliminary injunction, courts often “look[] to the
`standard used in examining a Rule 60(b) motion.” Mateo v. M/S KISO, 805 F. Supp. 761, 786 (N.D. Cal.
`1991). Federal Rule of Civil Procedure 60(b) permits a party to obtain relief from a judgment or order if
`“applying [the judgment or order] prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5); Horne
`v. Flores, 557 U.S. 433, 454 (2009) (a party “may obtain relief if prospective enforcement of that order
`‘is no longer equitable’”). Rule 60(b)(5) “codifies the long-established principle of equity practice that a
`court may, in its discretion, take cognizance of changed circumstances and relieve a party from a
`continuing decree.” Gilmore v. California, 220 F.3d 987, 1007 (9th Cir. 2000). It likewise “codifies the
`courts’ traditional authority, ‘inherent in the jurisdiction of the chancery,’ to modify or vacate the
`prospective effect of their decrees.” Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1252 (9th
`Cir. 1999).
`A court should grant a “Rule 60(b)(5) motion when the party seeking relief from an injunction or
`consent decree can show a significant change either in factual conditions or in law.” Agostini v. Felton,
`521 U.S. 203, 215 (1997) (internal quotation marks omitted). “A court errs when it refuses to modify an
`injunction or consent decree in light of such changes.” Id. That is because, while it is “true that the trial
`court has discretion” to modify orders having prospective effect, “the exercise of discretion cannot be
`permitted to stand if . . . it rests upon a legal principle that can no longer be sustained.” Id. at 238.
`The requisite change in law can take the form of a change in statutory, regulatory, or decisional
`law. See id. at 215 (change in statutory or decisional law); California v. EPA, No. 19-17480, 2020 WL
`6193497, at *2 (9th Cir. Oct. 22, 2020) (change in regulations). As the Ninth Circuit recognized two
`weeks ago when confronted with a regulatory revision, “[a]n unbroken line of Supreme Court cases makes
`clear that it is an abuse of discretion to deny a modification of an injunction after the law underlying the
`order changes” to no longer require what the injunction imposes on the enjoined party. California, 2020
`
`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`WL 6193497, at *4. The Ninth Circuit stated that “a district court abuses its discretion by refusing to
`modify an injunction even after its legal basis has evaporated and new law permits what was previously
`enjoined.” Id. at *2. The court held that a “change in the law alone warrant[s] dissolution of [an]
`injunction”; the movant is not required to demonstrate that other equitable factors favor dissolution. Id.
`at *6. As with most other circuits, the Ninth Circuit does “not balance the harms caused by modifying an
`injunction.” Id. at *5. Rather, it views “the revisions in the law as sufficient to require modification.” Id.
`Dissolution is also warranted where a plaintiff can no longer identify any Article III injury that can
`be redressed by the maintenance of the injunction. An “actual controversy must be extant at all stages of
`review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S.
`43, 67 (1997). “If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of
`the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as
`moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) (quoting Lewis v. Cont’l Bank
`Corp., 494 U.S. 472, 477-478 (1990)). “If an event occurs that prevents the court from granting effective
`relief, the claim is moot and must be dismissed.” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d
`1118, 1123 (9th Cir. 1997), as amended (Sept. 16, 1997). The Ninth Circuit has “repeatedly recognized
`that the enactment of a new law that resolves the parties’ dispute” renders relief moot. Stratman v. Leisnoi,
`Inc., 545 F.3d 1161, 1167 (9th Cir. 2008)
`
`ARGUMENT
`In light of a change in DOL’s regulations, the Court’s October 28 Order should be modified and
`the TRO and preliminary injunction lifted. Plaintiffs assert claims based on the following: If USDA fails
`to publish the 2020 FLS, DOL will not be able to calculate the AEWRs for calendar year 2021, and farm
`workers will therefore receive lower wages. That causal chain is now severed. Pursuant to its new
`regulations, DOL will calculate AEWRs without reliance on any new FLS wage data published by USDA.
`Dissolution of the October 28 injunction is required for two independent reasons, both of which implicate
`the Court’s jurisdiction. First, DOL’s regulatory change negates the legal premise on which the October
`28 Order rests, including the Court’s holding that USDA’s suspension constituted reviewable “final
`agency action.” Second, Plaintiffs now lack any Article III injury traceable to Defendants’ actions or
`redressable by the continued maintenance of the preliminary injunction.
`
`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`Case 1:20-cv-01452-DAD-JLT Document 36 Filed 11/05/20 Page 10 of 15
`
`I.
`
`The Legal Basis for the Preliminary Injunction “Has Evaporated.”
`“Events have largely overtaken this litigation.” Martinez v. Wilson, 32 F.3d 1415, 1419 (9th Cir.
`1994). DOL’s final rule demonstrates that USDA’s suspension notice is not reviewable “final agency
`action.” See 5 U.S.C. § 704. The Court should therefore dissolve the TRO and preliminary injunction.
`California v. EPA, issued two weeks ago, demonstrates that dissolution is warranted as the Court’s
`prior “legal basis” for issuing the injunction “has evaporated.” See 2020 WL 6193497, at *2. In 2016,
`EPA issued guidelines governing emissions from landfills. Id. at *1. These guidelines required EPA to
`review and approve state plans describing how each state would implement EPA’s guidelines; if a state
`failed to submit a plan, EPA was required to promulgate a federal plan by a stated deadline. Id. EPA
`missed the deadline and several states sued. Id. EPA then initiated a rulemaking that proposed to extend
`its deadline to issue a federal plan. Id. While the rulemaking was pending, but not yet final, the district
`court issued an injunction requiring EPA to produce its federal plan within six months. Id. According to
`the district court, the injunction was warranted given the existing regulations and notwithstanding the
`ongoing rulemaking. Id. at *3. Shortly thereafter, EPA issued its final rules, which extended the
`regulatory deadline for promulgating a federal plan by two years. Id. at *1. On the same day that EPA
`published its final rules, EPA filed a motion requesting relief from the district court’s injunction, arguing
`that the new rules undermined the legal basis on which the court’s injunction had been issued. Id. at *3.
`The district court denied that motion. Id. The Ninth Circuit held that the district court’s refusal “to modify
`an injunction even after its legal basis has evaporated” constituted an abuse of discretion. Id. at *2. That
`was true absent any showing by EPA that continued compliance with the injunction was infeasible or
`would otherwise harm EPA: “Compelling EPA . . . to continue to adhere to an injunction based on a legal
`duty that has since disappeared is a harm in and of itself.” Id. at *7.
`Just as in California v. EPA, the injunction here should be dissolved in light of the new final rule
`published today in the Federal Register. In both cases, the legal basis for the prospective relief turned on
`provisions that were revised after issuance of the injunction, and in both cases, the change in the law took
`the form of a new regulation. In California v. EPA, the injunction mandating that EPA promptly issue a
`federal plan rested on the regulation, subsequently revised, that required EPA to issue a federal plan by a
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`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
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`stated date. Here, the October 28 Order mandating that USDA collect new FLS data rested on the
`regulation, now revised, that required DOL to use the new FLS data in setting the AEWRs for 2021.
`The Court’s threshold ruling that USDA’s suspension constituted “final agency action” provides
`one example of how the Order’s rationale has been invalidated by DOL’s final rule. In the Order, the
`Court explained that USDA’s decision to suspend data collection constituted “final agency action”
`because that action “is part of another agency action: the DOL’s creation of a methodology for calculating
`the AEWRs.” Order at 13. The Court stated that the “FLS is a prerequisite to calculating the AEWRs
`because current DOL regulations require it to rely on the FLS in doing so.” Id. at 14. “USDA cannot
`deny that its issuing of the FLS is a critical part of calculating the AEWRs and thus is an agency action,”
`the Court explained. Id. “By extension, suspending the FLS is also an agency action for purposes of
`review under the APA.” Id. The Court offered no other explanation as to how USDA’s decision could
`constitute reviewable final agency action. In the absence of “final agency action,” the Court lacks
`jurisdiction to issue or maintain a preliminary injunction—or any other relief—against these Defendants
`in this litigation. See Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (APA’s “final agency
`action” requirement is jurisdictional); Genesis Healthcare, 569 U.S. at 71 (court must have jurisdiction
`“at all stages of review, not merely at the time the complaint is filed”).
`The “old set of rules” governing the AEWR methodology “cannot be evaluated as if nothing has
`changed.” Nat’l Min. Ass’n v. Dep’t of Interior, 251 F.3d 1007, 1011 (D.C. Cir. 2001). “A new system
`is now in place.” Id. Under that new system, DOL will no longer utilize new FLS data to calculate the
`2021 AEWRs, even if USDA were to collect the data and publish a report this year. The 2020 AEWRs
`(those “in effect on January 2, 2020”) have already been established. 84 Fed. Reg. 69,774 (Dec. 19, 2019).
`The next set of rates—those that will apply to 2021—will be calculated using the new methodology in the
`final rule issued today. 85 Fed. Reg. at 70,446 (DOL “has determined it is appropriate to use the 2020
`AEWRs, which were based on the results of the FLS published in November 2019, as the starting point
`to establish AEWRs for most H-2A job opportunities during calendar years 2021 and 2022 and, subject
`to annual adjustments, in subsequent years.”). USDA’s collection and publication (or not) of new FLS
`data will not affect those rates. Id. at 70,453 (“[E]ven if more recent, 2020 FLS wage data were available,
`relying on it to set 2021 AEWRS would only serve to perpetuate the very wage volatility that the
`
`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`7
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`Department seeks to ameliorate through this rule.”). The legal basis on which the Court’s October 28
`Order rests “has evaporated” and the Court should dissolve the preliminary injunction. See California,
`2020 WL 6193497 at *2.
`II.
`Plaintiffs Can No Longer Identify Any Injury Redressable by the Preliminary Injunction.
`Dissolution is also appropriate because continued maintenance of the injunction would provide no
`redress to Plaintiffs. Plaintiffs cannot identify any Article III injury supporting the continued preservation
`of the injunction—let alone any imminent, irreparable harm they would suffer if the preliminary injunction
`were lifted. The requested injunctive relief is therefore moot, and the injunction should be dissolved.
`DOL’s new final rule is an intervening change in law that demonstrates that Plaintiffs cannot
`establish that they will suffer any irreparable, Article III injury absent an injunction. See Genesis
`Healthcare, 569 U.S. at 72 (“If an intervening circumstance deprives the plaintiff of a personal stake in
`the outcome of the lawsuit, at any point during litigation, the action can no longer proceed.”). Plaintiffs
`alleged that DOL would not be able to publish the 2021 AEWR without USDA’s 2020 FLS data, and that
`farm workers would be paid lower wages as a result. Compl. ¶ 58. Pursuant to DOL’s final rule, DOL
`will be able to determine the 2021 AEWR without reliance on new FLS data. See 85 Fed. Reg. at 70,452-
`70,454. Any argument about the 2021 AEWRs issued under DOL’s new rule is not one directed at USDA
`and its decision to suspend FLS data collection. Nor can the Court provide any constitutionally
`recognizable redress to Plaintiffs by denying the instant motion and leaving intact the preliminary
`injunction. Maintaining the injunction (even in the wake of the new DOL rule) would require USDA to
`conduct a survey that it is not required by statute or regulation to conduct, and, under DOL’s new
`regulation, the injunction has no bearing on whether DOL will release the 2021 AEWRs that Plaintiffs
`speculated would go unpublished. This new legal regime renders Plaintiffs’ claim for injunctive relief
`moot. See Stratman, 545 F.3d at 1167.
`The prospect of a challenge to DOL’s new regulation between now and the effective date does not
`demonstrate a substantial showing of imminent irreparable harm. To establish its entitlement to a
`preliminary injunction, a “plaintiff must do more than merely allege imminent harm sufficient to establish
`standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite to preliminary
`injunctive relief.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
`
`DEFENDANTS’ MOTION TO MODIFY AND DISSOLVE
`TRO AND PRELIMINARY INJUNCTION
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`8
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`“[E]stablishing a threat of irreparable harm in the indefinite future is not enough. Rather, a plaintiff must
`demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” Amylin
`Pharm., Inc. v. Eli Lilly & Co., 456 F. App’x 676, 679 (9th Cir. 2011). To meet that high bar, speculation
`is insufficient—particularly about possible future litigation concerning DOL’s final rule. See California,
`2020 WL 6193497, at *3 n.2; see also Miller v. Benson, 68 F.3d 163, 164–65 (7th Cir. 1995).
`That DOL’s new AEWR methodology will be used to calculate the 2021 AEWRs requires no
`speculation and is based on no contingencies. Plaintiffs asserted that they would suffer harm “if no
`replacement regulation [had] become effective” in time for DOL to set the 2021 AEWRs, see Pls.’
`Response to Defs.’ Notice, ECF 31 at 2, but that is no longer a concern. DOL’s final rule takes effect on
`December 21, 2020 without any further action by DOL or any other entity. Because the new rule takes
`effect before the end of the calendar year, it will be in effect at the time that DOL will establish AEWRs
`for the following year. See 20 C.F.R. § 655.120(c). The former methodology is no longer relevant because
`rates for 2020 have alr