Case 1:20-cv-01452-DAD-JLT Document 39 Filed 11/11/20 Page 1 of 22
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`Mark D. Selwyn (SBN 244180)
`mark.selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, CA 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’ OPPOSITION TO
`MOTION TO MODIFY AND
`DISSOLVE TRO AND PRELIMINARY
`INJUNCTION
`
`ORAL ARGUMENT REQUESTED
`
`Defendants.
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`PLAINTIFFS’ OPPOSITION TO MOTION TO MODIFY
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`Case 1:20-cv-01452-DAD-JLT Document 39 Filed 11/11/20 Page 2 of 22
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`TABLE OF CONTENTS
`INTRODUCTION ................................................................................................................................ 1
`BACKGROUND .................................................................................................................................. 2
`LEGAL STANDARD ........................................................................................................................... 6
`ARGUMENT ........................................................................................................................................ 7
`I.
`Plaintiffs’ Members Will Suffer Irreparable Injury If The Injunction Is Dissolved ................. 7
`A.
`The DOL Rule Does Not Invalidate This Court’s Irreparable Harm Findings
`Or Render Plaintiffs’ Claims Moot ............................................................................... 8
`The DOL Rule Will Be Challenged, And Serious Questions Exist About The
`Rule’s Validity .............................................................................................................. 9
`Defendants’ Contrary Arguments Lack Merit ............................................................ 11
`C.
`USDA’s Cancellation Of The Farm Labor Survey Still Constitutes Final Agency
`Action ...................................................................................................................................... 14
`CONCLUSION ................................................................................................................................... 17
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`
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`II.
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`B.
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`Case 1:20-cv-01452-DAD-JLT Document 39 Filed 11/11/20 Page 3 of 22
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Agostini v. Felton,
`521 U.S. 203 (1997) ...............................................................................................................7, 8
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`Bennett v. Spear,
`520 U.S. 154 (1997) .................................................................................................................16
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`California v. Azar,
`911 F.3d 558 (9th Cir. 2018) .....................................................................................................9
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`California v. EPA,
`385 F. Supp. 3d 903 (N.D. Cal. 2019) .....................................................................................12
`
`California v. EPA,
`No. 18-cv-3237, 2019 WL 5722571 (N.D. Cal. Nov. 5, 2019) ...............................................13
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`California v. EPA,
`No. 19-17480, 2020 WL 6193497 (9th Cir. Oct. 22, 2020) ........................................12, 13, 14
`
`Coleman v. Brown,
`922 F. Supp. 2d 1004 (E.D. Cal. 2013)..................................................................................7, 8
`
`Department of Commerce v. New York,
`139 S. Ct. 2551 (2019) .............................................................................................................11
`
`Gifford Pinchot Task Force v. Perez,
`No. 03:13-cv-00810-HZ, 2014 WL 3019165 (D. Or. July 3, 2014) ............................15, 16, 17
`
`Gilmore v. California,
`220 F.3d 987 (9th Cir. 2000) .....................................................................................................7
`
`Lujan v. National Wildlife Federation,
`497 U.S. 871 (1990) .................................................................................................................15
`
`Martinez v. Wilson,
`32 F.3d 1415 (9th Cir. 1994) ...................................................................................................15
`
`Mateo v. M/S Kiso,
`805 F. Supp. 761 (N.D. Cal. 1991) ............................................................................................6
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`Miller v. Benson,
`68 F.3d 163 (7th Cir. 1995) .....................................................................................................14
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`National Mining Association v. U.S. Department of Interior,
`251 F.3d 1007 (D.C. Cir. 2001) ...............................................................................................15
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`Case 1:20-cv-01452-DAD-JLT Document 39 Filed 11/11/20 Page 4 of 22
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`National Urban League v. Ross,
`977 F.3d 770 (9th Cir. 2020) .............................................................................................16, 17
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`Rufo v. Inmates of Suffolk County Jail,
`502 U.S. 367 (1992) ...................................................................................................................7
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`Stratman v. Leisnoi, Inc.,
`545 F.3d 1161 (9th Cir. 2008) .................................................................................................14
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`System Federation No. 91 Railway Employees’ Department v. Wright,
`364 U.S. 642 (1961) ...................................................................................................................7
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`U.S. Army Corps of Engineers v. Hawkes Co.,
`136 S. Ct. 1807 (2016) .......................................................................................................16, 17
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`United States v. Westlands Water District,
`134 F. Supp. 2d 1111 (E.D. Cal. 2001)......................................................................................6
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`Whitman v. American Trucking Associations,
`531 U.S. 457 (2001) .................................................................................................................15
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`Regulations
`
`Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A
`Nonimmigrants in Non-Range Occupations in the United States, 85 Fed. Reg.
`70,445 (Nov. 5, 2020) ...................................................................................................... passim
`
`Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions
`From Existing Electric Utility Generating Units; Revisions to Emission
`Guidelines Implementing Regulations, 84 Fed. Reg. 32,520 (July 8, 2019) ...........................13
`
`Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed.
`Reg. 6884 (Feb. 12, 2010) .........................................................................................................6
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`Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84
`Fed. Reg. 36,168 (July 26, 2019) .........................................................................................6, 10
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`PLAINTIFFS’ OPPOSITION TO MOTION TO MODIFY
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`INTRODUCTION
`Nothing about the rule recently issued by the United States Department of Labor (DOL)
`obviates the necessity for the preliminary injunction issued by this Court. This Court enjoined the
`United States Department of Agriculture (USDA) from ending (1) data collection through the Farm
`Labor Survey (FLS) and (2) publication of the Farm Labor Report (FLR)—including the survey
`originally planned for October 2020 and the report scheduled for publication in November 2020. In
`so doing, the Court recognized that unless USDA collects data now, hundreds of thousands of U.S.
`farmworkers and agricultural guestworkers would likely experience devastating wage cuts if DOL
`cannot provide a satisfactory replacement for the current AEWR methodology by the end of the year.
`DOL has now issued a rule that, when it becomes effective on December 21, 2020, will modify
`the methodology for calculating AEWRs. That methodology—which drastically departs from the
`proposed rule DOL issued in July 2019—arbitrarily freezes 2020 AEWRs for two years instead of
`using the most accurate, recent FLS data to issue 2021 AEWRs. The rule also uses a generic labor
`index to adjust AEWRs—based on outdated FLS data—starting in 2023. While acknowledging that
`“the FLS has been the only comprehensive survey of wages paid by farmers and ranchers,” DOL
`justifies its decision to stop using updated FLS data largely by relying on USDA’s decision to
`discontinue the survey. However, the rule ignores that, under this Court’s Order, 2020 FLS data will
`be available to calculate 2021 AEWRs. DOL also chose to freeze farmworker wages and then adjust
`those wages using an index that does not measure farmworker wages, even though it recognizes that
`paying below-market wages harms farmworkers and contravenes DOL’s statutory mandate. That
`contradiction is underscored by DOL’s concession that the rule is actually meant to depress
`farmworker wages below market rates.
`For three reasons, DOL’s new rule does not impact the Court’s conclusion that farmworkers
`will be irreparably injured absent injunctive relief or render Plaintiffs’ claims moot. First, the rule
`does not undermine any fact, premise, or assumption underlying this Court’s findings that Plaintiffs’
`members would be irreparably harmed absent injunctive relief. The Court anticipated and considered
`DOL’s forthcoming rule when it issued the injunction. Defendants’ motion to dissolve the injunction
`thus amounts to an improper request for this Court to reconsider issues it already decided. And in any
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`event, the rule does not moot Plaintiffs’ claims because the rule is not yet effective and will not
`become effective until December 21, 2020, at the earliest. Second, it is likely that the rule will be
`challenged, and enjoined, under the Administrative Procedure (APA) before that date. Serious
`questions exist about the rule’s validity, which are underscored by the contradictory rationales
`offered to support the changes to the AEWR methodology. If the Court were to dissolve the
`injunction and DOL’s rule were not to become effective on December 21, 2020, hundreds of
`thousands of farmworkers will suffer a dramatic reduction in their wages. Third, the legal theories
`and cases on which Defendants rely offer no support for their claims that Plaintiffs are no longer
`injured by USDA’s decision, that the “legal basis” for the injunction has evaporated, or that
`Plaintiffs’ claims are now moot. In particular, DOL’s new rule does not resolve the legality of
`USDA’s action because it neither authorizes USDA to cancel a century-old program immediately
`and arbitrarily nor excuses USDA’s failure to conduct notice-and-comment rulemaking. Put simply,
`USDA’s action remains unlawful. The legal basis for the Court’s injunction therefore remains
`intact.
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`Nor does DOL’s new rule vitiate this Court’s conclusion that USDA’s decision to end the
`FLS and FLR constitutes final agency action. Defendants offer no support for the proposition that
`an agency decision already adjudged to be final agency action can be rendered a non-final, non-
`action by a separate agency’s later action. And even taking DOL’s rule into account, the Court’s
`finding that USDA’s decision constituted final agency action remains correct under the governing
`standards.
`Defendants’ motion should be denied.
`BACKGROUND
`On October 13, 2020, Plaintiffs filed a complaint and motion for a temporary restraining
`order and preliminary injunction. Plaintiffs argued that USDA’s half-page, cursory notice
`announcing the immediate cancellation of data collection by the century-old FLS and the cessation
`of FLR publication was arbitrary and capricious and procedurally deficient under the APA. See
`ECF No. 3, at 9-21. The motion for a temporary restraining order and preliminary injunction also
`explained that without immediate relief compelling USDA to conduct the FLS in October and issue
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`Case 1:20-cv-01452-DAD-JLT Document 39 Filed 11/11/20 Page 7 of 22
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`the FLR in November, Plaintiffs’ members and many thousands of other farmworkers across the
`country would likely suffer substantial economic harm. Id. at 21-23. Those harms specifically
`included the loss of wage increases that were anticipated if DOL published AEWRs for 2021 relying
`on FLS data from 2020, as envisioned under DOL’s operable rules. See id. at 11-13 & nn.8, 10, 13
`(explaining that wages in California, Oregon, and Idaho had increased by between 4.26% and 5.44%
`per year between 2015 and 2020); see also id. at 5 (explaining that the May 2020 FLR documented
`that farmworker wages had increased by 3% nationally compared to 2019).
`In their opposition, filed on October 19, Defendants did not dispute that USDA’s decision
`to cancel the FLS and FLR was arbitrary and capricious. Defendants instead argued primarily that
`USDA’s decision was not subject to judicial review and that Plaintiffs had not demonstrated
`irreparable harm. See ECF No. 27, at 9-18. A key premise of Defendants’ arguments was the fact
`that DOL planned to issue a new rule and publish 2021 AEWRs using that new methodology before
`the end of the calendar year. See id. at 14, 17; see also ECF No. 27-1, at ¶ 9 (Pasternak declaration
`attesting that, in response to USDA’s decision, DOL was “develop[ing] a final rule establishing a
`new AEWR methodology, which it intends to publish and have effective before the end of the
`calendar year to ensure there is no disruption in setting these AEWRs for calendar year 2021”). On
`October 21, 2020, Defendants informed the Court that DOL had transferred to the Office of
`Information and Regulatory Affairs a draft final rule with a new AEWR methodology, suggesting
`that the final rule would be published in short order. See ECF No. 30.
`On October 28, 2020, this Court granted Plaintiffs’ motion and enjoined USDA from
`terminating the FLS and FLR. The Court found that Plaintiffs were likely to succeed on most of
`their claims and that Plaintiffs’ members would suffer irreparable harm absent immediate relief.
`See ECF No. 33, at 15-25 (Order). In so doing, the Court expressly rejected Defendants’ argument
`that DOL’s forthcoming rule prevented Plaintiffs from establishing irreparable harm, explaining
`that
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`if the DOL’s new methodology is challenged and ultimately set aside, and the 2021
`AEWRs ultimately require the FLS data to be calculated, they will suffer irreparable
`harm if the court does not preserve the status quo now because the October 2020 FLS
`data will not have been gathered and will not be available when it is needed.
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`Id. at 25. The Court also found that USDA’s decision constituted final agency action subject to
`judicial review and that USDA’s decision to suspend the FLS was “a live controversy”
`notwithstanding DOL’s rulemaking. Id. at 8-15, 25.
`On November 5, 2020, DOL published a final rule adopting a new methodology for
`calculating AEWRs under the H-2A program (the DOL Rule). See Adverse Effect Wage Rate
`Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations
`in the United States, 85 Fed. Reg. 70,445 (Nov. 5, 2020). The rule does not take effect until
`December 21, 2020. Id.
`The DOL Rule amends the methodology for calculating AEWRs under the H-2A program
`in a way that essentially guarantees inaccuracy—the methodology untethers the wages for most
`agricultural jobs from actual, real-time farmworker wage rates. For most agricultural jobs, the rule
`freezes the 2020 AEWRs currently in place—which were based on FLS data reflecting what
`farmworkers were paid in 2019—until the end of 2022. See 85 Fed. Reg. at 70,452. Starting in
`2023, DOL will begin adjusting the 2020 AEWRs annually based on the annual increase in the
`Employment Cost Index, an index that measures the change in the price of labor for all jobs in the
`U.S. labor market. Id. at 70,452, 70,455. For a limited number of higher-skilled jobs, DOL will
`continue to set AEWRs every year based on the Occupational Employment Statistics (OES)
`survey—a program administered by DOL’s Bureau of Labor Statistics that excludes farms from its
`data collection. Id. at 70,452. DOL explained that it was important that the wages for those jobs
`(but apparently not other jobs) be based on “accurate occupational data that better reflect the actual
`wage paid” because otherwise the AEWR would not “protect against adverse effect.” Id. at 70,453.
`Although the DOL Rule decides to abandon the use of FLS data to establish AEWRs, the
`DOL recognizes the crucial role that the FLS has long played in the administration of the H-2A
`program and concludes that it is appropriate to continue to rely on past FLS data. It notes, for
`example, that “the FLS has been the only comprehensive survey of wages paid by farmers and
`ranchers and has enabled the Department to establish minimum hourly rates of pay for H-2A job
`opportunities.” Id. at 70,446 (emphasis added). The DOL Rule then concludes that “given the
`comprehensiveness and relevance of the FLS data, the Department has determined it is appropriate
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`to use 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 … in subsequent
`years.” Id.
`What is perhaps most surprising about DOL’s stated justification for abandoning the use of
`more recent FLS data are the many references to USDA’s decision to discontinue the survey. As
`the rule explains, DOL reached its conclusion because “USDA publicly announced its intent to
`cancel the planned October data collection” and that, as a result, it “may not release its November
`2020 report.” Id. The rule concludes that “[i]n light of USDA’s recent announcement regarding
`the FLS, the continued lack of any statutory or regulatory requirement that USDA conduct the FLS,
`and ongoing litigation over the announcement,” relying on old FLS data instead of current FLS data
`is “appropriate in order to promote greater certainty in the setting of AEWRs in future years.” Id.
`The rule says nothing about the fact that, under this Court’s Order, 2020 FLS data will be available
`to publish 2021 AEWRs. Nor does the rule address the Memorandum of Understanding (MOU)
`that DOL entered into with USDA in December 2019, less than a year ago, that committed USDA
`to conducting the FLS (with DOL’s support) so that DOL could publish AEWRs for the H-2A
`program. See generally ECF No. 3-11. The MOU explicitly recognized that DOL is “reliant upon
`the information provided by the [FLS] in performing its statutory and regulatory responsibilities”
`and that “it is not possible for [DOL] to obtain the needed information by any other means.” Id. at
`3.
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`The only other purported justification the DOL Rule offers for the two-year wage freeze is
`a desire to depress market wages. The rule explains that using the 2020 AEWRs for 2021 and 2022
`is meant to address commenters’ “concerns that recent accelerations in the wage rates are …
`attributable to flawed survey results and have caused artificially surging wage increases, as well as
`the need to have time to engage in long range planning.” 85 Fed. Reg. at 70,456. Although the
`DOL Rule “disagrees with the commenters’ suggestions that the FLS survey results were flawed,”1
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`1
`It would be surprising if DOL had agreed with those claims given that it has repeatedly
`explained that the FLS is its preferred data source because it is more accurate than alternatives,
`including the OES survey that it intends to use to set AEWRs for higher-skilled jobs. See
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`it nonetheless adopts a two-year “transition period” to “balance[] commenters’ concerns related to
`significant wage fluctuations” (i.e., increases) and avoid “the kind of unexpected wage changes that
`commenters expressed concerns about.” Id. Stated differently, even though DOL believes that FLS
`data accurately and comprehensively reflects market wages, the rule freezes AEWRs for two years
`to insulate employers from the market wage increases reflected by that FLS data. Id.
`On November 5, 2020, the same day that the DOL Rule was published in the Federal
`Register, Defendants filed a motion to dissolve the preliminary injunction entered on October 28,
`2020. See ECF No. 36 (Mot.). Defendants contend, using various formulations, that “DOL’s new
`rule negates the premise underlying Plaintiffs’ claim of irreparable harm and the basis for this
`Court’s Order.” Id. at 3.
`Plaintiffs are continuing to analyze the DOL Rule—which is a marked departure from the
`proposed rule issued in July 2019—but have already identified several procedural and substantive
`deficiencies. Accordingly, Plaintiffs intend to challenge the DOL Rule.
`LEGAL STANDARD
`Although “Rule 60(b) motions apply only to final judgments,” courts have used Rule 60(b)
`standards as a guide to resolving motions to reconsider interlocutory orders. Mateo v. M/S Kiso,
`805 F. Supp. 761, 786 (N.D. Cal. 1991). “Rule 60 reconsideration is generally appropriate in three
`instances: 1) when there has been an intervening change of controlling law, 2) new evidence has
`come to light, or 3) when necessary to correct a clear error or prevent manifest injustice.” United
`States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). Rule 60(b)(5) allows
`relief from an order when “applying it prospectively is no longer equitable”; in essence, the rule
`
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`Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 Fed. Reg.
`36,168, 36,180 (July 26, 2019) (DOL explaining that “[t]he FLS [remained] the Department’s
`preferred wage source for establishing the AEWR because it is the only comprehensive wage
`survey that collects data from farm and ranch employers”); Temporary Agricultural Employment
`of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6898 (Feb. 12, 2010) (DOL explaining
`that “[t]he FLS is the only annually available data source that actually uses information sourced
`directly from farmers,” which “is a strong advantage of the FLS as the AEWR data source
`compared to all other alternatives”).
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`codifies the practice of courts considering changed circumstances when determining whether a party
`should be so relieved. See Gilmore v. California, 220 F.3d 987, 1007 (9th Cir. 2000).
`“[A] party seeking modification [of an injunction] ‘bears the burden of establishing that a
`significant change in circumstances warrants revision of the decree.’” Coleman v. Brown, 922 F.
`Supp. 2d 1004, 1026 (E.D. Cal. 2013) (emphasis added) (quoting Rufo v. Inmates of Suffolk Cty.
`Jail, 502 U.S. 367, 383 (1992)). These changed circumstances “ordinarily involve [the enjoined
`party] pointing to a change in background assumptions on which th[e] Court relied in making its …
`determination.” Coleman, 922 F. Supp. 2d at 1032. Under that standard, a “moving party ‘may not
`... challenge the legal conclusions on which a prior judgment or order rests.’” Id. at 1026 (alteration
`in original). When pointing to a supposed change in law, “the moving party must generally
`demonstrate that ‘the statutory or decisional law has changed to make legal what the decree was
`designed to prevent.’” Id. And when alleging a change in facts, “the party may not rely on ‘events
`that actually were anticipated at the time [the court] entered into a decree.’” Id. at 1027. In other
`words, changes that are anticipated and accounted for by a court order “do[] not constitute a change
`in factual conditions warranting relief under Rule 60(b)(5).” Agostini v. Felton, 521 U.S. 203, 216
`(1997). As the Supreme Court explained, “[f]irmness and stability must no doubt be attributed to
`continuing injunctive relief based on adjudicated facts and law, and neither the plaintiff nor the court
`should be subjected to the unnecessary burden of re-establishing what has once been decided.” Sys.
`Fed’n No. 91 Ry. Emps.’ Dep’t v. Wright, 364 U.S. 642, 647 (1961).
`ARGUMENT
`PLAINTIFFS’ MEMBERS WILL SUFFER IRREPARABLE INJURY IF THE INJUNCTION IS
`DISSOLVED
`
`I.
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`Defendants have never disputed that Plaintiffs’ members and hundreds of thousands of other
`H-2A and U.S. farmworkers will face severe economic hardship in 2021 if their wages are cut
`because DOL is unable to issue 2021 AEWRs. Farmworkers are already some of the lowest-paid
`workers in the United States, with more than 33% of farmworker families living below the poverty
`line and already struggling to feed themselves and afford adequate healthcare. See Order 23. Nor
`have Defendants contested that the likelihood of such severe wage cuts to subsistence workers
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`PLAINTIFFS’ OPPOSITION TO MOTION TO MODIFY
`AND DISSOLVE TRO AND PRELIMINARY INJUNCTION
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`establishes irreparable injury. Defendants argue only that Plaintiffs’ members will no longer be
`harmed by USDA’s decision to discontinue the FLS because DOL issued a new rule that becomes
`effective on December 21, 2020 that will allow DOL to issue 2021 AEWRs without relying on FLS
`data. See Mot. 3.
`The DOL Rule Does Not Invalidate This Court’s Irreparable Harm Findings
`A.
`Or Render Plaintiffs’ Claims Moot
`
`Nothing in DOL’s new rule protects Plaintiffs’ members and other farmworkers from being
`irreparably harmed absent an injunction. To start, the DOL Rule was anticipated and considered
`when the Court issued its order granting Plaintiffs’ motion for a preliminary injunction. In opposing
`Plaintiffs’ preliminary injunction motion, Defendants argued that USDA’s decision was not
`reviewable and Plaintiffs could not establish irreparable harm because DOL planned to issue a new
`rule and publish updated AEWRs using that revised methodology before the end of the calendar
`year. See ECF No. 27, at 14, 17. The Court expressly rejected those arguments, explaining that
`Plaintiffs’ members “will suffer irreparable harm if the court does not preserve the status quo now
`because the October 2020 FLS data will not have been gathered and will not be available when it is
`needed” “if the DOL’s new methodology is challenged and ultimately set aside, and the 2021
`AEWRs ultimately require the FLS data to be calculated.” Order 25. In other words, the Court
`plainly anticipated that DOL would issue new regulations and nonetheless concluded that the
`injunction was necessary to protect Plaintiffs’ members from the irreparable harm that would result
`if 2020 FLS data were unavailable while challenges to the new rule were litigated. See id. In
`essence, then, Defendants’ arguments are nothing more than an attempt to have the Court reconsider
`an issue that it already decided. Such challenges are inappropriate. See Agostini, 521 U.S. at 216
`(holding that changes that are anticipated and accounted for by a court order “do[] not constitute a
`change in factual conditions warranting relief under Rule 60(b)(5)”); Coleman, 922 F. Supp. 2d at
`1026-1027 (noting that a party cannot seek reconsideration “rely[ing] on ‘events that actually were
`anticipated at the time [the court] entered into a decree’”).
`Moreover, the DOL Rule does not undermine the basis for this Court’s injunction for the
`simple reason that it is not effective until December 21, 2020. The Ninth Circuit has held that the
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`PLAINTIFFS’ OPPOSITION TO MOTION TO MODIFY
`AND DISSOLVE TRO AND PRELIMINARY INJUNCTION
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`promulgation of new regulations does not moot a case and require dissolving a preliminary
`injunction where the new regulations are not yet effective. See California v. Azar, 911 F.3d 558,
`569 (9th Cir. 2018). In Azar, the district court preliminarily enjoined two interim final rules (IFRs)
`because “the IFRs [were] likely to be procedurally invalid under the APA.” Id. Although the Ninth
`Circuit recognized that “[i]f the final rules become effective as planned [in approximately one
`month] on January 14, there will be no justiciable controversy regarding the procedural defects of
`IFRs that no longer exists,” the court emphasized that “it is not yet January 14.” Id. The court
`therefore held that “mootness is not an issue until the final rules supersede the IFRs as expected on
`January 14, 2019.” Id. In other words, because “[t]he IFRs ha[d] not been superseded yet, and the
`procedural validity of the IFRs [was] a live controversy,” the court could “still grant the parties
`effective relief.” Id. Azar confirms that a rule’s effective date, not the publication date in the Federal
`Register, is dispositive when considering mootness.
`Here, the DOL Rule does not become effective until December 21, 2020. If the October
`2020 FLS data that USDA is supposed to be collecting under this Court’s Order were to become
`irrelevant to DOL’s administration of the H-2A program, it would happen only after DOL’s new
`rule becomes effective. Until then, this Court can grant Plaintiffs effective relief by preventing
`USDA from arbitrarily canceling the FLS and leaving hundreds of thousands of farmworkers
`exposed to the risk of losing the AEWRs’ protections in 2021. Accordingly, “[m]ootness, if at all,
`will arise only [later].” Id.
`The DOL Rule Will Be Challenged, And Serious Questions Exist About The
`B.
`Rule’s Validity
`
`The likelihood that the DOL Rule will be challenged and enjoined before its effective date
`further underscores that any mootness concerns (to the extent any exist at all) will arise only after
`the rule’s effective date. If the DOL Rule