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`Case 1:20-cv-01690-DAD-JLT Document 37 Filed 12/23/20 Page 1 of 39
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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-01690-DAD-JLT
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`Plaintiffs,
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`v.
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`ORDER GRANTING PLAINTIFFS’ MOTION
`FOR A PRELIMINARY INJUNCTION
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`THE UNITED STATES DEPARTMENT
`OF LABOR, et al.,
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`(Doc. No. 5)
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`Defendants.
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`This matter came before the court on December 14, 2020 for hearing on the motion for a
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`preliminary injunction on behalf of plaintiffs United Farm Workers and UFW Foundation
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`(collectively, “plaintiffs”). (Doc. No. 5.) Attorneys Mark Selwyn, Derek Woodman, Nicholas
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`Werle, Bruce Goldstein, Trent Taylor, and Gabriela Hybel appeared by video for plaintiffs, and
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`United States Department of Justice Trial Attorney Michael Gaffney appeared by video for
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`defendants the United States Department of Labor (“DOL”) and Eugene Scalia, the Secretary of
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`Labor (collectively, “defendants”). For the reasons explained below, the court will grant
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`plaintiffs’ motion for a preliminary injunction.
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`BACKGROUND
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`In their complaint, plaintiffs allege the following. Of the two to three million
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`farmworkers currently in the United States, over 200,000 are H-2A foreign guestworkers. (Doc.
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`No. 1 (“Compl.”) at ¶ 24.) The H-2A agricultural guestworker program permits agricultural
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`employers to hire foreign workers on a temporary basis under certain circumstances. (Id. at ¶ 17.)
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`The H-2A program is rooted in the Immigration and Nationality Act of 1952 (“INA”), which
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`created a broad class of non-immigrant “H” visas for temporary admission of foreign workers to
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`provide temporary or seasonal labor in sectors of the economy where there are shortages of U.S.
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`workers. (Id. at ¶ 32.) The INA was later amended to establish the separate H-2A visa
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`classification for agricultural labor. (Id.) As amended, the INA prohibits the United States
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`Department of Homeland Security from issuing an H-2A visa unless the employer seeking to hire
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`foreign guestworkers has applied for and received a certification from the DOL that: (a) “there
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`are not sufficient workers who are able, willing, and qualified” and available to perform the
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`sought for services, and (b) the foreign workers’ temporary employment “will not adversely
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`affect the wages and working conditions of workers in the United States similarly employed.”
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`(Id. at ¶ 32.) This certification requirement furthers the INA’s purpose of protecting U.S. workers
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`from the potential adverse effects of an influx of guestworkers in that certification prohibits
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`agricultural employers from hiring foreign guestworkers unless they have shown that the U.S.
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`labor market cannot supply the required workers, and then requires that this supplemental, foreign
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`labor supply not harm U.S. farmworkers’ wages and working conditions. (Id. at ¶ 33.)
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`To prevent adverse effects on U.S. workers, the DOL’s regulations require that employers
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`utilizing the H-2A program pay a wage that is the highest of either: (1) the Adverse Effect Wage
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`Rate (“AEWR”), (2) the prevailing wage rate, (3) an agreed-upon collective bargaining wage, or
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`(4) the federal or state minimum wage. (Id. at ¶ 35.) Under those regulations, the DOL relies
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`primarily on a two-pronged approach based on the AEWR and prevailing wage rate to guard
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`against wage depression that would otherwise result from the hiring of high numbers of foreign
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`agricultural workers. (Id.) The prevailing wage rate protects local wages paid, while the AEWR
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`sets a state-wide wage floor to prevent wage disparities over larger geographic areas. (Id. at
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`¶ 36.) The AEWR, however, is the primary wage rate under the H-2A program because it is
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`higher than the other wages in most circumstances. (Id.) As a result, the AEWR determines the
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`wages of approximately 92 percent of the farmworkers working for H-2A program employers.
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`(Id.)
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`Prior to December 21, 2020, the DOL’s regulations required the DOL to use the United
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`States Department of Agriculture’s (“USDA”) Agricultural Labor Survey, commonly referred to
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`as the Farm Labor Survey (“FLS”), in order to calculate the AEWR. (Id. at ¶ 37.) The USDA
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`has conducted the FLS since 1910. (Id. at ¶ 52.) The FLS collects information from farm
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`employers to obtain data on farm employment, hours worked, wages paid, and other statistics.
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`(Id.) The National Agricultural Statistics Service (“NASS”)—the USDA’s statistical branch—
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`publishes FLS data semiannually in May and November in the Farm Labor Report (“FLR”). The
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`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. at ¶ 53.) The November report also provides annual data based on quarterly estimates. (Id.)
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`Aside from a brief two-year period starting in 2008, the DOL’s regulations required it to
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`use the FLS to calculate the AEWR for the H-2A program since the program’s inception in 1986.
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`(Id. at ¶ 37.) The DOL had also used FLS data for the H-2A’s predecessor program since 1953.
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`(Id.) Because of the DOL’s longstanding reliance on the FLS, the USDA has conducted the FLS
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`in cooperation with the DOL, and the DOL has funded the FLS since July 2011 pursuant to a
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`memorandum of understanding between the two agencies. (Id.) Indeed, in a December 2019
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`memorandum of understanding between the DOL and the USDA, the DOL agreed to continue
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`funding the FLS through December 31, 2022. (Id. at ¶ 56.)
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`Under the DOL’s prior regulations, which were adopted in 2010, the DOL sets an AEWR
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`for each state or multi-state region using “[t]he annual weighted average hourly wage for field
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`and livestock workers (combined) . . . as published annually by the U.S. Department of
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`Agriculture . . . based on its quarterly wage survey,” the FLS. (Id. at ¶ 38); see also Temporary
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`Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6,884 (Feb. 12, 2010)
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`(“the 2010 Rule”). That 2010 Rule explained that the AEWR seeks to approximate the market
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`wages that would exist absent an influx of foreign workers, thus “put[ting] incumbent farm
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`workers in the position they would have been in but for the H-2A program.” (Compl. at ¶ 39.)
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`The DOL elucidated that the AEWR was premised on the idea that “an increase of workers under
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`the H-2A program” would prevent wages from “increas[ing] by an amount sufficient to attract
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`more [U.S.] workers until supply and demand were met in equilibrium.” (Id.) In other words,
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`“the AEWR avoids adverse effects on currently employed workers by preventing wages from
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`stagnating at the local prevailing wage rate when they would have otherwise risen to a higher
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`equilibrium level over time.” (Id.) The DOL has recognized that without the protections afforded
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`by AEWRs set at regional or state-wide market rates, farmworkers “would be adversely affected
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`by lowered wages as a result of an influx of temporary foreign farm workers.” (Id.)
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`In adopting the 2010 Rule, the DOL also concluded that the FLS was the best available
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`data source for establishing AEWRs. (Id. at ¶ 40.) The DOL explained at that time that “[t]he
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`FLS is the only annually available data source that actually uses information sourced directly
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`from [farm employers],” which “is a strong advantage of the FLS as the AEWR data source
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`compared to all other alternatives.” (Id.) Additionally, the FLS’s “broader geographic scope
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`makes the FLS more consistent with both the nature of agricultural employment and the statutory
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`intent of the H-2A program.” (Id.) In short, FLS data was best suited to protect against adverse
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`effects because it allowed the DOL to establish AEWRs at regional market rates. (Id.)
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`Conversely, the DOL recognized that using data other than the FLS to calculate AEWRs—in that
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`case, the DOL’s Occupational Employment Statistics (“OES”) survey data—“entails a significant
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`risk that U.S. workers may in the future experience wage depression as a result of unchecked
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`expansion of the demand for foreign workers.” (Id.)
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`On July 26, 2019, the DOL published a Notice of Proposed Rulemaking (“NPRM”)
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`proposing to continue its reliance on FLS data to establish AEWRs under the H-2A program. (Id.
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`at ¶ 43); see also Temporary Agricultural Employment of H-2A Nonimmigrants in the United
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`States, 84 Fed. Reg. 36,168 (July 26, 2019) (“the NPRM”). Specifically, the NPRM proposed to
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`establish separate AEWRs for distinct agricultural occupations within each state or region relying
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`on FLS data. (Id. at ¶ 44.) If the FLS did not report a wage for a specific occupation in a given
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`state or region, the AEWR would instead be based on OES data. (Id.) Further, if OES data did
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`not include a statewide annual average hourly wage for a standard occupational classification,
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`then the AEWR would be based on the national wage for that occupational classification as
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`determined by the FLS or OES. (Id.)
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`However, on September 30, 2020, the USDA abruptly announced that it had suspended
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`data collection for the October 2020 FLS and canceled the November 2020 publication of the
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`biannual FLR. (Id. at ¶ 55); see also Notice of Revision to the Agricultural Labor Survey and
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`Farm Labor Reports by Suspending Data Collection for October 2020, 85 Fed. Reg. 61,719
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`(Sept. 30, 2020) (“FLS Suspension Notice”). On October 13, 2020, plaintiffs sued the USDA
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`seeking a temporary restraining order and preliminary injunction preventing the USDA from
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`implementing the FLS Suspension Notice. (Compl. at ¶ 57); see also United Farm Workers v.
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`Perdue, No. 1:20-cv-1452-DAD-JLT, 2020 WL 6318432 (E.D. Cal. Oct. 28, 2020). In that case,
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`plaintiffs argued that the USDA’s decision was arbitrary and capricious—largely because it failed
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`to consider the DOL’s reliance on the FLS data—and that it failed to comply with the APA’s
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`notice-and-comment requirements. (Compl. at ¶ 57.) Plaintiffs also argued that H-2A foreign
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`guestworkers and U.S. farmworkers would be irreparably harmed if FLS data from 2020 and the
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`November 2020 FLR were not available for the DOL to use in establishing the 2021 AEWRs.
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`(Id.) On October 28, 2020, this court granted plaintiffs’ motion and enjoined the USDA from
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`canceling the October 2020 FLS and ceasing publication of the November 2020 FLR. (Id. at
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`¶ 58); see also Perdue, 2020 WL 6318432.
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`On November 5, 2020, the DOL published a final rule in the Federal Register announcing
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`changes to its methodology for setting AEWRs under the H-2A program. (Compl. at ¶ 4); see
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`also Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A
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`Nonimmigrants in Non-Range Occupations in the United States, 85 Fed. Reg. 70,445 (Nov. 5,
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`2020) (“the Final Rule”). The Final Rule became effective on December 21, 2020. (Compl. at
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`¶ 4.) In that Final Rule, the DOL elected to freeze the current 2020 AEWRs for two years. (Id. at
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`¶ 61.) The 2020 AEWRs are based on FLS data reflecting what farmworkers were paid in 2019.
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`(Id.) The Final Rule maintains these 2019 wage rates as the AEWRs for most agricultural jobs in
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`2021 and 2022. (Id.) Then, beginning in 2023, the DOL would adjust the AEWRs annually
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`using the Employment Cost Index (“ECI”)—an index that measures the change in the cost of
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`labor by surveying various private industries, but notably excluding farms and agricultural
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`workers. (Id.) Under the Final Rule, the DOL will also establish AEWRs each year—including
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`in 2021 and 2022—for a smaller set of “higher-skilled” agricultural jobs using the annual
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`statewide average hourly gross wage for the occupation based on the OES survey—a program
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`administered by the DOL’s Bureau of Labor Statistics that excludes farms from its data
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`collection. (Id.)
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`On November 30, 2020, plaintiffs filed their complaint against defendants in this action
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`seeking declaratory and injunctive relief and asserting the following three claims: (1) a violation
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`of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, because the Final Rule
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`contravenes the governing statute; (2) a violation of the APA, 5 U.S.C. § 706, because the Final
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`Rule lacks adequate justification and analysis of the economic effects it will have on U.S.
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`workers; and (3) a violation of the APA, 5 U.S.C. § 553, because defendants failed to comply
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`with the requirements of notice-and-comment rulemaking in promulgating the Final Rule.
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`(Compl. at 37–39.) Plaintiffs filed the pending motion for a preliminary injunction on November
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`30, 2020. (Doc. No. 5.) On December 7, 2020, defendants filed their opposition to plaintiffs’
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`motion, and plaintiffs replied thereto on December 11, 2020. (Doc. Nos. 31, 34.) The California
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`Attorney General’s Office filed an amicus curiae brief on behalf of the State of California in
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`support of plaintiffs’ pending motion for a preliminary injunction on December 9, 2020.1 (Doc.
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`No. 32-1.)
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`“The proper legal standard for preliminary injunctive relief requires a party to demonstrate
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`LEGAL STANDARD
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`‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the
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`absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction
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`is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting
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`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v.
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`Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that
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`1 The court granted the State of California’s motion for leave to file its amicus curiae brief on
`December 10, 2020. (Doc. No. 33.)
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`irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.’”)
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`(quoting All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). The Ninth
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`Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that
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`serious questions going to the merits were raised and the balance of hardships tips sharply in the
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`plaintiff’s favor.” All. for Wild Rockies, 632 F.3d at 1134–35 (quoting Lands Council v. McNair,
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`537 F.3d 981, 987 (9th Cir. 2008) (en banc), overruled on other grounds by Winter, 555 U.S. 7.2
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`The party seeking the injunction bears the burden of proving these elements. See Klein v. City of
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`San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); Caribbean Marine Servs. Co. v. Baldrige,
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`844 F.2d 668, 674 (9th Cir. 1988) (“A plaintiff must do more than merely allege imminent harm
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`sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a
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`prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an extraordinary remedy
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`that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
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`Winter, 555 U.S. at 22.
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`Here, plaintiffs allege various violations of the APA and seek a preliminary injunction (1)
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`ANALYSIS
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`preventing the DOL from implementing the regulatory changes announced in its Final Rule
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`published on November 5, 2020, and (2) ordering the DOL to issue AEWRs. (Doc. No. 5 at 33.)
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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 quotation marks and
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`citation omitted). Only “final agency actions” are reviewable under the APA. 5 U.S.C. § 704;
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`see also 5 U.S.C. § 701 (for purposes of the APA’s judicial review provisions, “agency action”
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`has “the meaning[] given” by § 551). An “‘agency action’ includes the whole or a part of an
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`agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”
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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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`5 U.S.C. § 551(13). Under § 706 of the APA, the court is “to assess only whether the decision
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`was based on a consideration of the relevant factors and whether there has been a clear error of
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`judgment.” Regents, 140 S. Ct. at 1905 (internal quotation marks and citation omitted).
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`The APA “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. McNair, 537 F.3d at
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`993 (citing 5 U.S.C. § 706(2)(A)). The district court’s role “is simply to ensure that the [agency]
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`made no ‘clear error of judgment’ that would render its action ‘arbitrary and capricious.’” Id.
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`(citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)). “Factual determinations must
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`be supported by substantial evidence,” and “[t]he arbitrary and capricious standard requires ‘a
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`rational connection between facts found and conclusions made.’” League of Wilderness
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`Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 759–60 (9th Cir. 2014)
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`(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. The court will begin its analysis by considering plaintiffs’ likelihood of success on their
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`claims.
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`A.
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`Likelihood of Success on the Merits
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`Plaintiffs bear the burden of demonstrating that they are likely to succeed on the merits of
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`this action or, at the very least, that “serious questions going to the merits were raised.” All. for
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`the Wild Rockies, 632 F.3d at 1131.
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`1.
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`Whether the Final Rule is Arbitrary and Capricious Because It Contravenes
`Federal Law by Failing to Protect United States Workers Against Adverse Effects
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`In their first claim, plaintiffs allege that the Final Rule is arbitrary and capricious because
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`it contravenes the INA’s mandate that the DOL ensure that the hiring of temporary foreign
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`guestworkers “will not adversely affect the wages and working conditions of workers in the
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`United States similarly employed.” (Compl. at ¶¶ 99–103.)
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`“Agencies cannot exceed the scope of their authority as circumscribed by Congress.”
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`Planned Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health & Human Servs.,
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`946 F.3d 1100, 1112 (9th Cir. 2020). Under § 706(2)(A) of the APA, regulations that contravene
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`federal law or that are “‘contrary to clear congressional intent’” must be declared invalid and set
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`aside. Id. “When reviewing an agency’s statutory interpretation under the APA’s ‘not in
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`accordance with law’ standard,” the court must “adhere to the familiar two-step test of Chevron.”
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`Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008). At Chevron step one,
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`“if Congress ‘has directly spoken to the precise question at issue . . . the court, as well as the
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`agency, must give effect to the unambiguously expressed intent of Congress.’” Harkonen v. U.S.
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`Dep’t of Justice, 800 F.3d 1143, 1149 (9th Cir. 2015) (quoting Chevron, U.S.A., Inc. v. NRDC,
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`467 U.S. 837, 842 (1984)). If the court determines that the statute is ambiguous with respect to
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`the precise question at issue, and Congress therefore left a gap for the agency to fill, the court
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`must proceed to Chevron step two and ask “whether the agency’s answer is based on a
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`permissible construction of the statute.” Id. (quoting Chevron, 467 U.S. at 843). While the
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`standard of review at Chevron step two is highly deferential to the agency determination, id., the
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`analysis is the same test applied to agency changes in policy: that is, “[a] permissible
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`construction is one that is not ‘arbitrary, capricious, or manifestly contrary to the statute.’” Altera
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`Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061, 1075 (9th Cir. 2019), cert.
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`denied, No. 19-1009, 2020 WL 3405861 (U.S. June 22, 2020).
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`Here, the court finds that plaintiffs have demonstrated a likelihood of success on the
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`merits of this claim. The undersigned finds the decision in American Federation of Labor &
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`Congress of Industrial Organizations (AFL-CIO) v. Brock, 835 F.2d 912 (D.C. Cir. 1987) to be
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`instructive under the circumstances presented here. There, the plaintiffs challenged the DOL’s
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`new methodology for computing the AEWRs as both contrary to congressional intent and
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`arbitrary and capricious. Id. at 914. Over the preceding twenty years, the DOL had periodically
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`increased the AEWRs to compensate for past adverse wage effects. Id. Based on the assumption
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`that farm wages had stagnated due to the influx of foreign guestworkers, the DOL had linked
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`AEWRs to manufacturing wages and enhanced those wages by a USDA data-based index,
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`producing AEWRs that exceeded farm wages by approximately 20 percent. Id. In 1987, the
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`DOL issued a new methodology that set AEWRs for all states equal to the average hourly
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`agricultural wages paid the prior year. Id. Because farmworkers faced possible wage cuts under
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`the new rule, plaintiffs challenged it. Id.
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`After the district court invalidated the new rule, the D.C. Circuit reversed. The court first
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`determined that
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`Congress, indeed, has never paid any attention to the method or
`policy of calculating AEWRs. . . . [C]alculating AEWRs has been
`left entirely to the Department’s discretion. The committee and floor
`discussion on the IRCA, cited by both parties, confirms only
`Congress’ general intent to protect United States workers against
`adverse effects from imported labor.
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`Id. at 915. At Chevron step two, however, the court found that the new AEWR rule was not a
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`permissible construction of the statute. Id. at 917–19. “Because the Department ma[de] no
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`explanatory attempt to ‘forthrightly distinguish or outrightly reject’ [its] contradictory precedent,
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`[the court] and the public [we]re ‘left with no guideposts for determining the consistency of
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`administrative action . . . or for accurately predicting future action’ by the agency.” Id. at 918. In
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`discounting the DOL’s arguments that its previous AEWR methodology caused wage rate
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`anomalies and was difficult to calculate, the court stated that
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`[i]f [the DOL] is saying that there is no wage depression from past
`foreign workers, it must make that case forthrightly. Inability to
`secure persuasive data as to any effects of past wage depression
`might indeed justify ending the enhancement or contribute to such a
`decision. But the example given by the Department could just as
`logically suggest that adjustments were needed, but in an upward
`direction rather than a total elimination. The Department simply
`does not explain why such variances justify the Department’s total
`abandonment of its policy of enhancing AEWRs to compensate for
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`past wage depressions rather than changes in methodology to assure
`more accurate estimates. Thus, even if the Department does have a
`case for changing its premises about adverse wage effects on
`American workers, that case has yet to be made.
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`Id. at 919.
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`As an initial matter, the court agrees with the D.C. Circuit’s reasoning expressed in the
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`Brock decision as it relates to Chevron step one. Defendants assert in this case, and the court
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`agrees, that the INA does not prescribe the methodology for calculating the AEWR—or even
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`require that the DOL set an AEWR—but instead broadly delegates to the DOL the responsibility
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`to craft a mechanism to certify that hiring H-2A workers “will not adversely affect the wages of
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`workers in the United States similarly employed.” (See Doc. No. 31 at 19) (quoting 8 U.S.C. §
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`1188(a)(1)(B)); United Farm Workers v. Solis, 697 F. Supp. 2d 5, 9 (D.D.C. 2010) (rejecting a
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`challenge to the DOL’s 2008 AEWR rule and stating “Congress did not . . . define adverse effect
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`and left it in the [DOL’s] discretion how to ensure that the importation of farmworkers met the
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`statutory requirements”).
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`Accordingly, the court must move to the second question under Chevron: whether the
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`DOL’s Final Rule is a permissible construction of the INA. The gravamen of plaintiffs’ claim in
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`this case is that the Final Rule’s determination to permit employers to pay guestworkers below
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`market wage rates is contrary to Congress’s clear intent because the wages of U.S. farmworkers
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`will decline or stagnate in response. (Doc. No. 5 at 15–17.) Plaintiffs note that the DOL has
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`historically recognized that while admitting H-2A workers can address a labor shortage, “[a]bsent
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`an increase of workers under the H-2A program, wages would rise above the currently observed
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`wage in order to dispel the labor shortage.” (Doc. No. 5 at 15) (quoting 75 Fed. Reg. at 6,891).
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`Indeed, the DOL’s 2010 Rule explained that AEWRs guard against wage stagnation “[b]y
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`computing an AEWR to approximate the equilibrium wage that would result absent an influx of
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`temporary foreign workers, . . . put[ting] incumbent farm workers in the position they would have
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`been in but for the H-2A program.” (Doc. No. 5 at 15) (quoting 75 Fed. Reg at 6,891–92). That
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`approach, the DOL explained, “avoids adverse effects on currently employed workers by
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`preventing wages from stagnating at the local prevailing wage rate when they would have
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`otherwise risen to a higher equilibrium level over time.” (Id.) (quoting 75 Fed. Reg at 6,891–92).
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`According to plaintiffs, the Final Rule reaffirms this reasoning while nonetheless adopting
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`a completely contrary policy. As plaintiffs characterize it, the Final Rule severs the relationship
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`between the AEWR and current farm labor market conditions; freezes the AEWRs for two years
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`at 2020 levels, even though recent trends establish that agricultural wages have been rising and
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`will likely continue to do so; then lifts the wage freeze in 2023 based on the ECI, a generic index
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`of wages from across the economy, without ever compensating for the wage growth lost during
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`the two-year wage freeze. (Doc. No. 5 at 16.) At the hearing on the pending motion, plaintiffs
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`explained that the historical trend of the FLS data conclusively shows that the Final Rule will
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`result in reduced wages. The May 2020 FLS data also indicates that the AEWRs are increasing
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`as they have been over the last number of years and doing so at a faster rate than the general wage
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`index. (See Doc. No. 5-3.) Plaintiffs also note that employers’ complaints about increasing H-2A
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`wages reflect that AEWRs were expected to be higher in 2021 than in 2020. (Doc. No. 5 at 21.)
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`Thus, plaintiffs aver that even AEWRs based upon the May 2020 FLS data would be higher than
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`AEWRs based on 2019 data. Moreover, plaintiffs argue that the ECI’s lack of farm labor data is
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`particularly significant because agricultural wages have been rising faster than average wages
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`across the economy. (Doc. No. 5 at 16) (quoting 85 Fed. Reg. at 70,455). Further, because the
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`ECI reflects national trends, not state-wide markets, the new methodology under the Final Rule
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`does not track local labor market conditions. (Id. at 17.)
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`Defendants counter that the Final Rule “strikes a reasonable balance” between “providing
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`employers with an adequate legal supply of agricultural labor while protecting the wages and
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`working conditions of” U.S. workers. (Doc. No. 31 at 20) (quoting 85 Fed. Reg. at 70,453). At
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`the hearing on the pending motion, plaintiffs characterized that balance as a clear attempt to
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`protect employers, an objective not contemplated by the INA. The court notes, however, that
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`defendants are obligated to “serve the interests of both farmworkers and growers—which are
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`often in tension,” and “[t]hat is why Congress left it to the DOL’s judgment and expertise to
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`strike the balance.” See Am. Fed’n of Labor & Cong. of Indus. Organizations (AFL-CIO) v.
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`Dole, 923 F.2d 182, 187 (D.C. Cir. 1991). Defendants contend that they strike that balance by
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`disaggregating the wage rate paid to farmworkers of different occupational categories. (Doc. No.
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`31 at 20.) Defendants posit that the new methodology provides significant wage increases for
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`highly skilled workers, pointing to a chart attached to their opposition brief demonstrating that
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`wages for construction laborers, first-line supervisors of farm workers, and heavy trucking/truck
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`drivers will increase significantly under the Final Rule in comparison to the methodology to be
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`employed under the 2