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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 1 of 18
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`Mark Selwyn (SBN 244180)
`mark.selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`Telephone: (650) 858-6031
`Facsimile: (650) 858-6100
`
`Attorney for Plaintiffs
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
` Case No. 1:20-cv-01690-DAD-JLT
`
`
`
`
`UNITED FARM WORKERS and UFW
`FOUNDATION,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
` v.
`
`THE UNITED STATES DEPARTMENT OF
`LABOR and MARTIN J. WALSH, in his
`official capacity as United States Secretary of
`Labor,1
`
`
`
`
`
`
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`
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`Defendants.
`
`PLAINTIFF’S REPLY IN FURTHER
`SUPPORT OF THEIR
`MOTION TO ENFORCE
`COMPLIANCE WITH THE COURT’S
`PRELIMINARY INJUNCTION
`
`
`Motion Date: April 20, 2021
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`
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`
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`1 Pursuant to Fed. R. Civ. P. 25(d), Secretary Martin J. Walsh has been automatically substituted for former Acting
`Secretary Milton Al Stewart.
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 2 of 18
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...................................................................................................................................... 1
`ARGUMENT .............................................................................................................................................. 3
`I.
`The Court Never Excused Defendants From Their Duty to Publish Timely 2021
`AEWRs ............................................................................................................................... 3
`The Court Is Authorized to Order Wage Adjustments ......................................................... 6
`II.
`The Equities Favor Ordering Wage Adjustment .................................................................. 8
`III.
`CONCLUSION ......................................................................................................................................... 14
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 3 of 18
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`
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`TABLE OF AUTHORITIES
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`CASES
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`Page(s)
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`County of Los Angeles v. Shalala,
`192 F.3d 1005 (D.C. Cir. 1999) .......................................................................................................7
`
`Democratic Central Committee of D.C. v. Washington Metropolitan Area Transit Commision,
`485 F.2d 786 (D.C. Cir. 1973) (DCC) ...................................................................................2, 6, 13
`
`Frederick County Fruit Growers Ass’n, Inc. v. McLaughlin,
`709 F. Supp. 242 (D.D.C. 1989) ....................................................................................................11
`
`Frederick County Fruit Growers Ass’n, Inc. v. McLaughlin,
`703 F. Supp. 1021 (D.D.C. 1989) (FCFGA I) .................................................................................8
`
`Frederick County Fruit Growers Ass’n v. Martin,
`968 F.2d 1265 (D.C. Cir. 1992) (FCFGA II) ...................................................................6, 9, 11, 13
`
`Hsiao v. Stewart,
`No. 18-cv-502-JAO-KJM, 2021 U.S. Dist. LEXIS 54402 (D. Haw. Mar. 23, 2021) .....................8
`
`Immigrant Legal Resource Center v. Wolf,
`No. 20-cv-05883-JSW, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020) ..........................................8
`
`Morrison v. U.S. Department of Labor,
`713 F. Supp. 664 (S.D.N.Y. 1989).............................................................................................7, 11
`
`NAACP v. Donovan,
`558 F. Supp. 218 (D.D.C. 1982) (NAACP I) .................................................................5, 10, 12, 13
`
`NAACP, Jefferson County Branch v. Donovan,
`566 F. Supp. 1202 (D.D.C. 1983) (NAACP II) ............................................................................5, 6
`
`Palisades General Hospital Inc. v. Leavitt,
`426 F.3d 400 (D.C. Cir. 2005) .....................................................................................................7, 8
`
`DOCKETED CASES
`
`Bragg v. Donovan, No. 82-2361 (D.D.C.) ...................................................................................................5
`
`United Farm Workers v. Dep’t of Labor, No. 1:20-cv-1690-DAD-JLT (E.D. Cal.) .....................1, 4, 9, 13
`
`United Farm Workers v. Perdue, No. 1:20-cv-1452-DAD-JLT (E.D. Cal.) ...............................................1
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 4 of 18
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`STATUTES, RULES, AND REGULATIONS
`
`5 U.S.C.
`§ 705.................................................................................................................................................8
`§ 706.................................................................................................................................................8
`
`20 C.F.R.
`§ 655.120(b)(2) ................................................................................................................................3
`§ 655.120(c) .....................................................................................................................................6
`§ 655.122(l) ..................................................................................................................................3, 6
`
`60 Fed. Reg. 45,778 (Sept. 1, 1995) ............................................................................................................7
`
`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).................13
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`Employment and Training Administration, 84 Fed. Reg. 69,774 (Dec. 19, 2019) ......................................3
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`OTHER AUTHORITIES
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`U.S. Dep’t of Labor, Employment and Training Administration – Announcements (Jan. 15,
`2021), https://www.dol.gov/agencies/eta/foreign-labor/news .......................................................11
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`U.S. Dep’t of Labor, Employment and Training Administration – Performance Data – H-2A
`Disclosure Data FY2020, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-
`2A_Disclosure_Data_FY2020.xlsx (last visited Mar. 10, 2021) .....................................................1
`
`U.S. Dep’t of Labor, Employment and Training Administration – Performance Data – H-2A
`Disclosure Data FY2021 Q1,
`https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2A_Disclosure_Data_FY2021_Q
`1.xlsx (last visited Mar. 10, 2021) ...................................................................................................1
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 5 of 18
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`INTRODUCTION
`H-2A workers and U.S. farmworkers in corresponding employment were denied the wage
`increases to which they were entitled for the first two months of 2021, likely costing the typical
`California farmworker $325 and farmworkers nationwide more than $10 million in aggregate.2 For
`farmworkers and their families already struggling to survive on subsistence incomes, this is a significant
`loss. And they suffered that loss solely because the U.S. Department of Labor (DOL), in coordination
`with the U.S. Department of Agriculture (USDA), unlawfully sought to alter the H-2A program to
`transfer billions of dollars from farmworkers to growers through an unpermitted freeze of DOL’s
`Adverse Effect Wage Rates (AEWRs). Had the Government complied promptly with this Court’s
`injunction in United Farm Workers v. Perdue, No. 1:20-cv-1452-DAD-JLT (E.D. Cal. Oct. 28, 2020)
`(Perdue Injunction), DOL would have been able to promulgate updated 2021 AEWRs before the end of
`calendar year 2020, as the H-2A program regulations require, and rates would have increased
`accordingly. But DOL nonetheless failed to timely publish updated AEWRs as the law requires.
`Plaintiffs now respectfully request that the Court order Defendants to direct growers to reimburse
`farmworkers for the wages lost between January 1, 2021 and February 23, 2021, to prevent farmworkers
`from bearing the costs of the Government’s illegal administrative actions, as contemplated by the
`Court’s preliminary injunction and supplemental order of January 12, 2021. See Order, United Farm
`Workers v. Dep’t of Labor, No. 1:20-cv-1690-DAD-JLT (E.D. Cal. Dec. 23, 2020), ECF No. 37 (PI
`Order); Suppl. Order Regarding Prelim. Inj. Relief, United Farm Workers v. Dep’t of Labor, No. 1:20-
`cv-1690-DAD-JLT (E.D. Cal. Dec. 23, 2020), ECF No. 39 (Suppl. Order).
`Defendants contest relatively little of Plaintiff’s motion. They dispute neither the likely amounts
`due to qualifying farmworkers nor the Government’s sole responsibility for those lost wages. Nor does
`DOL suggest that Plaintiffs’ proposed remedy would be administratively impracticable.
`
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`2 See U.S. Dep’t of Labor, Employment and Training Administration – Performance Data – H-2A Disclosure Data
`FY2021 Q1, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H2A_Disclosure_Data_FY2021_Q1.xlsx (last visited
`Mar. 10, 2021); U.S. Dep’t of Labor, Employment and Training Administration – Performance Data – H-2A Disclosure Data
`FY2020, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/H-2A_Disclosure_Data_FY2020.xlsx (last visited Mar. 10,
`2021).
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 6 of 18
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`Defendants also fail to meaningfully dispute the Court’s authority to order DOL to direct
`growers to make wage adjustment payments under the doctrine of equitable restitution. Defendants
`effectively concede that the Court’s authority to order equitable restitution does not require a preexisting
`regulatory procedure that would permit DOL to act unilaterally. Nonetheless, Defendants suggest that
`the APA somehow bars this Court from exercising its equitable powers to enforce its pending
`preliminary injunction. Defendants’ argument collapses upon closer inspection, because it is based
`exclusively on inapposite cases that do not purport to limit a district court’s equitable powers.
`Defendants’ opposition therefore reduces to two flawed and related contentions. First,
`Defendants mischaracterize snippets from the Court’s prior orders to argue that the 2020 AEWRs
`remained valid well into 2021, even though the enforceable H-2A program regulations clearly required
`DOL to update the AEWRs by the end of calendar year 2020. Defendants construe this Court’s orders
`without full context, converting statements intended to protect farmworkers from Defendants’ threat to
`operate the H-2A program without any AEWRs at all into a judicial permission slip to implement their
`illegal wage freeze for two months. Defendants’ misreading of the Court’s prior orders “would … give
`legal effect to the [agency’s] invalid [rule],” the precise situation that justifies equitable restitution.
`Democratic Cent. Comm. of D.C. v. Washington Metro. Area Transit Comm’n, 485 F.2d 786, 825 (D.C.
`Cir. 1973) (DCC).
`Second, Defendants argue that equitable restitution is inappropriate here by attempting to
`distinguish prior cases in which district courts ordered wage adjustments for farmworkers harmed by
`DOL’s invalid administration of the H-2A program’s minimum wage rates. But these distinctions fail.
`As Plaintiffs explain below, ordering wage adjustments would not unduly upset growers’ reasonable
`expectations, and on balance, the equities favor granting the instant motion.
`The issue of wage adjustments is ripe for decision, because workers’ entitlement to wage
`adjustments does not depend on final judgment on the merits in this proceeding. And the time has come
`for these wage adjustments to be implemented so that a meaningful proportion of affected farmworkers
`receive the compensation to which they are entitled. Avoiding delay in resolving this issue also benefits
`growers, who have nothing to gain from prolonged uncertainty about this potential liability. Plaintiffs
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 7 of 18
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`I.
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`therefore respectfully request that Defendants be ordered to comply with the preliminary injunction by
`immediately directing H-2A employers to remit wage adjustments to qualifying farmworkers.
`ARGUMENT
`The Court Never Excused Defendants From Their Duty to Publish Timely 2021 AEWRs
`By law, H-2A employers are not permitted to pay H-2A workers or U.S. farmworkers in
`corresponding employment less than the geographically applicable AEWR in effect at the time the work
`is performed. See 20 C.F.R. § 655.122(l). Accordingly, the roughly 97 percent of H-2A workers
`receiving hourly wages below the geographically applicable 2021 AEWR between January 1, 2021 and
`February 23, 2021 would have seen immediate pay increases at the start of the year had the 2021
`AEWRs been published on time.3 Under the H-2A program’s regulations, DOL was required to update
`the AEWRs before the end of calendar year 2020, see 20 C.F.R. § 655.120(b)(2), since the last valid
`update was published December 19, 2019, see Employment and Training Administration, 84 Fed. Reg.
`69,774 (Dec. 19, 2019) (2020 AEWRs). The Government’s failure to timely publish 2021 AEWRs
`therefore resulted in approximately 73,000 H-2A workers (and U.S. farmworkers in corresponding
`employment, cf. Mot. 13 n.8) losing out for nearly two months on the average five percent raises to
`which they were entitled. Some farmworkers lost even more, such as the roughly 4,370 H-2A workers
`(plus additional U.S. farmworkers) in California who were each deprived of an approximately 8.5%
`raise, or roughly $325 in earnings for the typical H-2A worker.4
`Defendants do not contend they satisfied their regulatory obligation. Defendants neither assert
`that their management of the AEWRs complied with the H-2A program’s regulations nor dispute the
`Government’s failure to timely publish 2020 wage data is the sole cause for the 2021 AEWRs’ delayed
`publication. They instead attempt to argue that the 2020 AEWRs were valid through February 23, 2021,
`with the implication that during the first months of 2021 farmworkers were entitled to no more than the
`2020 AEWRs—which reflect average wages from 2019. Defendants’ arguments are not persuasive.
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`3 See supra n.2.
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`4 See supra n.2.
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 8 of 18
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`First, Defendants seize on snippets of the Court’s orders, strip them of context, and argue that
`they excuse DOL’s failure to meet its own regulatory deadlines so the 2020 AEWRs could remain valid
`until February 23, 2021. See Opp. 2-3. But this is not a fair reading of the Court’s orders, which never
`contemplated subjecting farmworkers to a wage freeze.
`Specifically, Defendants cite the Court’s statement in its December 23, 2020 order requiring
`DOL to operate under the requirements of the 2010 rule “except for the deadlines which have or are
`about to pass as a result of the government’s actions.” PI Order 35; see Opp. 2. But as Plaintiffs have
`explained, this was a direct response to the Government’s threat to “operat[e] the H-2A program without
`an AEWR, lowering the wage floor established in the 2020 AEWRs to the federal or state minimum
`wages” for most workers. PI Order 31; see ECF No. 44 at 4-5. The Court’s statement regarding
`deadlines about to pass ensured that DOL would not be able to use the preliminary injunction as an
`excuse to harm workers by completely suspending the AEWRs’ protection. The Court’s precaution is
`more reasonably read to prevent the Government from latching onto any ambiguity to abandon AEWRs,
`thereby dramatically cutting many thousands of farmworkers’ wages. Cf., ECF No. 31 at 25-26
`(Government’s argument in favor of excusing USDA’s delay in complying with the Perdue Injunction
`because the court “did not set a date certain by which [FLR] publication was required”). And it is clear
`from the context of the language Defendants cite that the December 23, 2020 opinion did not
`contemplate freezing AEWRs at 2020 levels: the paragraph in which it appears addresses “a number of
`appropriate solutions from which defendants may choose” to prevent the irreparable harm of an AEWR
`freeze, including the “persuasive[] suggest[ion]” that DOL issue “interim AEWRs.” PI Order 34-35.
`Defendants therefore misread the Order’s protection for farmworkers as approval for a wage freeze.
`Defendants also cite the Court’s January 12, 2021 Supplemental Order, which provided “that the
`2020 AEWRs shall remain in effect during the interim period,” ECF No. 39 at 3, as condoning a wage
`freeze. But Defendants’ reading ignores the Supplemental Order’s overarching conclusion: the Court
`put DOL and H-2A employers on notice that H-2A workers and U.S. farmworkers in corresponding
`employment might be entitled to retroactive compensation through an “award of backpay” depending in
`part on the difference between the 2020 AEWRs and the final 2021 AEWRs. Id. at 2-3. Reading the
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 9 of 18
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`Court’s temporary protection for farmworkers as a conclusion that the 2020 AEWRs were the final level
`of wage protection to which farmworkers were entitled is plainly inconsistent with the Court’s
`statements which contemplate the very wage adjustments Plaintiffs now request.
`Second, Defendants argue that even if the Court did not excuse DOL’s failure to publish updated
`AEWRs by the end of calendar year 2020, the H-2A regulations do not spell out the implications for
`DOL’s failure to follow its own regulations. See Opp. 8. But the caselaw contradicts DOL’s suggestion
`that its prior-year AEWRs may continue in force when the Department has failed to publish timely
`updates. Courts have held that the annual AEWR publication deadline is an enforceable requirement
`and have ordered DOL to comply, because absent annual updates “domestic workers will be ‘protected’
`only by outdated AE[W]Rs that do not reflect current economic realities.” NAACP, Jefferson Cty.
`Branch v. Donovan, 566 F. Supp. 1202, 1207 (D.D.C. 1983) (NAACP II). That past AEWR updates
`have had varying publication and effective dates is irrelevant. See Opp. 8. At midnight on December
`31, 2020, it was confirmed that “[D]efendants [we]re already remiss in their duties—they ha[d] failed to
`set [2021] AE[W]Rs.” NAACP II, 566 F. Supp at 1207. The 2020 AEWRs therefore immediately fell
`out-of-date and became invalid. Indeed, migrant farmworkers from three states once sued DOL, asking
`the court to compel DOL to establish AEWRs for 1982 after the Department violated the annual
`publication requirement. See NAACP v. Donovan, 558 F. Supp. 218, 221 n.6 (D.D.C. 1982) (NAACP I)
`(discussing Bragg v. Donovan, No. 82-2361 (D.D.C. 1982)). That case resulted in a consent decree, in
`which DOL agreed to promptly establish an AEWR and “provide[d] that the growers must place cash or
`surety in escrow until a new calculation of the AE[W]R is promulgated to insure that the workers will
`receive the pay due to them.” Id. Bragg further confirms that rapid publication and wage adjustments
`for injured farmworkers is the appropriate remedy for DOL’s failure to timely update the AEWRs.
`Plaintiffs therefore agree that there is a straightforward answer to Defendants’ “simple question”
`of whether H-2A employers could have legally paid farmworkers less than the 2020 AEWRs between
`January 1 and February 23, 2021, Opp. 7: the answer is no. But this did not eliminate the possibility
`that growers would need to pay retroactive wage adjustments so farmworkers’ earnings corresponded
`with the proper 2021 wage levels once those wages were published. In other words, the Court
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`eliminated any doubt that Defendants could use the preliminary injunction as an excuse to operate the H-
`2A program without the AEWRs. But that interim protection for farmworkers does not imply that the
`2020 AEWRs remained valid under the H-2A program regulations once 2021 AEWRs were finally
`published. Moreover, caselaw makes clear the appropriateness of ordering wage adjustments for
`farmworkers who did not receive the wage increases to which they were entitled by law.5
`The Court Is Authorized to Order Wage Adjustments
`II.
`The Court has the authority to order DOL to direct growers to make wage adjustment payments
`under the principle of equitable restitution. Defendants do not seriously question the availability of
`equitable restitution in this posture, where the Court has already entered a preliminary injunction
`preventing enforcement of a final rule in response to a suit filed under the APA. Permitting
`farmworkers to suffer from lost wages due to wage rates that were invalid under DOL’s own regulations
`is “antagonistic” to DOL’s statutory duty to “protect[]… workers.” NAACP II, 566 F. Supp. at 1206.
`The D.C. Circuit has held that “[e]quitable restitution is the proper remedy … when funds have either
`been paid or withheld pursuant to an invalid administrative edict,” Frederick Cty. Fruit Growers Ass’n
`v. Martin, 968 F.2d 1265, 1272 (D.C. Cir. 1992) (FCFGA II) (internal quotation marks and citations
`omitted), because to not order wage adjustments “would be to give legal effect to the [agency’s] invalid
`order.” DCC, 485 F.2d at 825.6 Neither of the two issues Defendants raise—the lack of DOL
`regulations providing for wage adjustments in this situation and the Court’s equitable jurisdiction under
`the APA—undermines the availability of equitable restitution in this instance.
`
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`5 Defendants’ hypothetical—that an employer could not have relied on a counter-factual drop in AEWRs on
`February 23, 2021 to justify having paid a lower wage in the prior weeks—is irrelevant. See Opp. 7. The H-2A program’s
`minimum wage rate structure, including the AEWR rules, feature asymmetries intended to prevent erosion of farmworkers’
`wages, because the sole purpose of the wage rates is to prevent the unlimited importation of low-wage agricultural labor from
`depressing U.S. farmworkers’ wages. For instance, growers may have to increase workers’ wages if the applicable AEWR
`rises during a work contract, but there is no provision permitting growers to decrease wages from the certified level if the
`applicable AEWR drops during a work contract. See 20 C.F.R. § 655.122(l). A similar asymmetry requires growers to adjust
`wages upward when prevailing hourly wages or piece rates rise but does not permit decreases. See id. § 655.120(c).
`
`6 Defendants’ attack on equitable restitution’s origin in public utility rate-setting doctrine misreads Frederick County
`Fruit Growers. See Opp. 8 n.5. While the D.C. Circuit panel suggested that it might have preferred the district court to
`approach the wage adjustment issue as a quasi-contract question, it expressly affirmed the district court’s application of the
`equitable restitution doctrine and extensively relied on the rate-setting cases in its analysis of the equitable restitution
`awarded to the agricultural guestworkers. See, e.g., FCFGA II, 968 F.2d at 1273.
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`First, the fact that the H-2A program regulations do not provide for wage adjustments in this
`circumstance does not affect the Court’s equitable jurisdiction to order the requested remedy.
`Defendants do not contend that the court’s equitable jurisdiction depends on whether a regulation
`authorizes DOL to issue wage adjustments unilaterally. See Opp. 9. “Restitution is available at the
`discretion of the court where the equities so warrant, despite the absence of a statute or contract
`providing therefor.” Morrison v. U.S. Dep’t of Labor, 713 F. Supp. 664, 672 (S.D.N.Y. 1989). As
`Defendants implicitly concede, the absence of a regulatory provision for wage adjustments at most goes
`to whether it is appropriate to grant restitution in this instance, not whether the Court is authorized to
`order the remedy. Id. at 675; see also infra p. 11 (discussing balance of the equities).
`Second, Defendants suggest that the APA prohibits the court from ordering backpay, but that
`argument misconstrues both the caselaw and the APA.
`Defendants cite only inapposite cases (both of which concern the wholly distinct regulatory
`context of Medicare’s retrospective reimbursement of hospitals’ costs) for the incorrect contention that
`this Court is shorn of its equitable powers to fashion relief under a pending preliminary injunction solely
`because Plaintiffs sued under the APA. Neither case even purports to address any limit the APA may
`place on the court’s equitable powers. For instance, the passage that Defendants quote from Cty. of Los
`Angeles v. Shalala, see Opp. 5, concerns the district court’s fact-finding role in an APA case, as relevant
`to a question of finality and appellate jurisdiction. 192 F.3d 1005, 1011 (D.C. Cir. 1999). It says
`nothing about the availability of equitable remedies in an APA suit. See id. Defendants’ reliance on
`Palisades Gen. Hosp. Inc. v. Leavitt, 426 F.3d 400, 403 (D.C. Cir. 2005), is also erroneous. See Opp. 5.
`Defendants’ quotations from Palisades General Hospital do not address the district court’s general
`equitable authority when hearing an APA claim; rather, they construed a specific Medicare
`reimbursement regulation that prohibited “consider[ation of] revised wage data for purposes of revisiting
`past adjudications of requests for geographic reclassification” of reimbursement rates. 426 F.3d at 403
`(citing 60 Fed. Reg. 45,778, 45,795-45,796 (Sept. 1, 1995)). Palisades General Hospital firmly grounds
`its holding denying certain “make-whole relief” on “the Medicare statute,” which “bars the specific
`relief requested” by stripping district courts of jurisdiction to review reclassification decisions. Id. The
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`REPLY ISO MOTION FOR COMPLIANCE
`WITH PRELIMINARY INJUNCTION
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 12 of 18
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`decision disclaims reliance on any other source of law, including the APA: “The plain text of the
`[Social Security] Act alone is enough to affirm the district court’s [refusal to order the Secretary to
`revisit a past reclassification decision] because a hospital is not entitled to seek review to overturn a
`reclassification decision of the Secretary once that decision becomes final.” Id.
`Defendants also misapprehend the APA’s remedial provisions. Of course, the APA authorizes a
`“reviewing court” to “hold unlawful and set aside agency action” through a permanent injunction
`vacating and remanding a regulation to the promulgating agency. 5 U.S.C. § 706. But the APA also
`provides that “the reviewing court … may issue all necessary and appropriate process … to preserve
`status or rights pending conclusion of the review proceedings,” including preliminary injunctions. 5
`U.S.C. § 705. The caselaw supports Plaintiffs’ position that the Court may enforce its preliminary
`injunction’s maintenance of the status quo through appropriate equitable relief, including equitable
`restitution. See, e.g., Hsiao v. Stewart, No. 18-cv-502-JAO-KJM, 2021 U.S. Dist. LEXIS 54402, at *38
`(D. Haw. Mar. 23, 2021) (construing 5 U.S.C. § 705); Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv-
`05883-JSW, 2020 WL 5798269, at *4 (N.D. Cal. Sept. 29, 2020) (same). In fact, courts have previously
`held that H-2A farmworkers may receive wage adjustment payments under an equitable restitution
`theory in the context of complex APA litigation over DOL rulemaking activity, demonstrating that the
`district court does not lose its equitable powers to enforce compliance with a pending preliminary
`injunction just because the case involves the APA. See, e.g., Frederick Cty. Fruit Growers Ass’n, Inc. v.
`McLaughlin, 703 F. Supp. 1021, 1023-1028 (D.D.C. 1989) (FCFGA I). The Court should therefore find
`that it is authorized to grant Plaintiffs’ motion.
`III. The Equities Favor Ordering Wage Adjustment
`The core of Defendants’ opposition is their contention that equitable restitution to farmworkers
`would be inappropriate in this instance. They offer five distinctions from prior cases where courts
`ordered wage adjustments for farmworkers, but none of these distinctions withstands closer inspection.
`Certainly, none justifies denying tens of thousands of farmworkers the wages to which they were
`entitled but did not receive only because the Government mismanaged the H-2A program while
`attempting to unlawfully depress their wages.
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`WITH PRELIMINARY INJUNCTION
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`Case 1:20-cv-01690-DAD-JLT Document 48 Filed 03/26/21 Page 13 of 18
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`First, Defendants argue that wage adjustments are improper because the 2020 AEWRs were “in
`effect” at the time the work was performed. This distinction is wrong on the law and the facts.
`Examining the wage adjustment decisions in the Frederick County Fruit Growers litigation, it is
`clear that the current dispute most closely resembles the 1983 season, for which the D.C. Circuit
`affirmed the district court’s wage adjustment order. Contrary to the Defendants’ suggestion, the D.C.
`Circuit’s affirmance of the wage adjustment order in Frederick County Fruit Growers does not turn on
`whether a particular rate was “in effect” at a certain time, but rather assesses whether ordering wage
`adjustments would be equitable if growers had reasonably relied on a regulation that was valid at the
`time. 968 F.2d at 1273. But as with the 1983 harvest in Frederick County Fruit Growers, employers
`did not reasonably rely on a regulatory wage freeze in the first two months of 2021, since they were
`made aware of the Court’s December 23, 2020 order prohibiting DOL from giving effect to its planned
`AEWR freeze. See PI Order 18, 39.
`Frederick County Fruit Growers confirms that what matters in assessing reasonable reliance is
`the current validity of the underlying wage rate regulation at the time the work was conducted. During
`nearly the entire 1983 harvest, the regulation imposing “average worker interpretation” of the piece rate
`was preliminarily enjoined, and the preexisting “proportional increase interpretation” governed. See
`FCFGA II, 968 F.2d at 1268. Backpay was therefore appropriate for work conducted under the
`preliminary injunction, even though the preliminary injunction was later vacated by the D.C. Circuit.
`See id. In contrast, backpay was not aw