`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 1 of 14
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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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`THE UNITED STATES DEPARTMENT
`OF LABOR, et al.,
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`Defendants.
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`ORDER GRANTING PLAINTIFFS’ MOTION
`SEEKING AN EXTENSION OF THE
`COURT’S PREVIOUSLY GRANTED
`PRELIMINARY INJUNCTIVE RELIEF IN
`THE FORM OF EQUITABLE RESTITUTION
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`(Doc. No. 44)
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`This matter came before the court on April 6, 2012 for hearing on the motion to enforce
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`compliance with the court’s preliminary injunction brought on behalf of plaintiffs United Farm
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`Workers and UFW Foundation (collectively, “plaintiffs”).1 (Doc. No. 44.) Attorneys Bruce
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`Goldstein, Rachel Jacobson, Mark Selwyn, Nicholas Werle, and Trent Taylor appeared by video
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`for plaintiffs, and United States Department of Justice Trial Attorney Michael Gaffney appeared
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`by video for defendants the United States Department of Labor (“DOL”) and the Secretary of
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`Labor (collectively, “defendants”). The court will construe plaintiffs’ filing as a motion seeking
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`1 On May 11, 2021, the court held a second hearing on this motion with all counsel appearing
`telephonically.
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`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 2 of 14
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`an extension of the previously granted preliminary injunctive relief in the form of equitable
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`restitution. For the reasons explained below, the court will grant plaintiffs’ pending motion.
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`BACKGROUND
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`The factual background of this case was set forth in the court’s order granting plaintiffs’
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`motion for a preliminary injunction. (See Doc. No. 37.) That background will not be repeated
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`here in its entirety. Only those facts relevant to the disposition of this motion will be discussed
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`below.
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`On December 23, 2020, the court granted plaintiffs’ motion for a preliminary injunction.
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`(Doc. No. 37.) Therein, the court prohibited defendants from implementing the final rule
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`published on November 5, 2020. (Id. at 39); see also Adverse Effect Wage Rate Methodology for
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`the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United
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`States, 85 Fed. Reg. 70,445 (Nov. 5, 2020) (“the AEWR final rule”). Defendants were ordered to
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`operate under the last uncontested status of the Adverse Effect Wage Rates (“AEWR”)
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`calculation methodology. (Doc. No. 37 at 39); see also Temporary Agricultural Employment of
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`H-2A Aliens in the United States, 75 Fed. Reg. 6,884 (Feb. 12, 2010) (“the 2010 rule”). The
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`parties were further directed to meet and confer to submit a proposed order that included
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`deadlines by which defendants would set the 2021 AEWRs in accordance with the court’s order
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`and with all other legal requirements. (Doc. No. 37 at 39.)
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`On January 6, 2021, the parties submitted a joint status report stating that they had met
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`and conferred in accordance with the court’s December 23, 2020 order. (Doc. No. 38 at ¶ 6–7.)
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`After exchanging proposals and counterproposals, however, the parties failed to reach an
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`agreement as to the language that the court should employ in granting plaintiffs’ requested relief.
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`(Id. at ¶ 7.) Ultimately, the parties agreed to submit separate proposals for the court’s
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`consideration. (Id.)
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`On January 12, 2021, after reviewing those proposals, the court issued a supplemental
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`order regarding the preliminary injunctive relief granted in this action. (Doc. No. 39.) Therein,
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`the court “reserve[d] the issue of whether any award of backpay is warranted based upon the
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`difference between the 2020 AEWRs and the final 2021 AEWRs, if any, until a final ruling on the
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`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 3 of 14
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`merits of plaintiffs’ claims.” (Id. at 2–3.) The court also directed defendants to (1) publish final
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`2021 AEWRs in the Federal Register on or before February 25, 2021 using the methodology set
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`forth in the 2010 rule; (2) make effective the 2021 AEWRs upon their publication in the Federal
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`Register; (3) notify state workforce agencies, employers, and the public by January 18, 2021 that
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`the 2020 AEWRs would remain in effect during the interim period between December 24, 2020
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`and publication of the final 2021 AEWRs; and (4) provide notice to all H-2A employers who
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`submitted job orders and applications for H-2A labor certification between December 21, 2020
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`and the publication of the final 2021 AEWRs, informing them that the potential backpay claims
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`of affected H-2A workers were the subject of ongoing litigation in this action. (Id. at 3–4.)
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`On February 12, 2021, the United States Department of Agriculture published the Farm
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`Labor Report (“FLR”) in accordance with this court’s preliminary injunction in United Farm
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`Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 2020 WL 6318432 (E.D. Cal. Oct. 28, 2020).
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`(See Doc. No. 44 at 7 n.1.) The FLR, which synthesized the findings of the Farm Labor Survey
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`(“FLS”) revealed that the gross wage rate for field and livestock workers during the October 2020
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`reference week had increased six percent from the previous year. (Id. at 7.) Additionally, the
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`annual average gross wage for field and livestock workers—the figure that determines the 2021
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`AEWRs under the DOL’s existing regulations—rose approximately five percent to $14.62. (Id.)
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`Accordingly, on February 23, 2021, the DOL published the 2021 AEWRs in compliance with the
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`court’s January 12, 2021 supplemental order granting preliminary injunctive relief in this case.
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`(Id.); see also Labor Certification Process for the Temporary Employment of Aliens in
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`Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations,
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`86 Fed. Reg. 10,996 (Feb. 23, 2021). The 2020 AEWRs therefore continued to govern from
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`January 1, 2021 to February 23, 2021 (“the Interim Period”) only because the 2021 AEWRs were
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`not published until February 23, 2021 in compliance with this court’s order.
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`On March 11, 2021, plaintiffs filed the pending motion, styled as a motion to enforce
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`compliance with the court’s preliminary injunction. (Doc. No. 44.) Specifically, plaintiffs seek
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`an order from this court directing defendants “to comply with the preliminary injunction by
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`immediately directing H-2A employers to remit wage adjustments to qualifying farmworkers.”
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`(Doc. No. 44 at 9.) On March 23, 2021, defendants filed an opposition to the motion, and
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`plaintiffs replied thereto on March 26, 2021. (Doc. Nos. 47, 48.)
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`ANALYSIS
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`As an initial matter, the court observes that the pending motion is not a true motion to
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`enforce compliance with this court’s preliminary injunction. Indicative of this is the absence of a
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`request to hold defendants in civil contempt for violating any of the preliminary injunction’s
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`directives.2 Rather, as effectively conceded at the hearings on the motion, plaintiffs are actually
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`requesting an extension of the relief granted in the court’s December 23, 2020 and January 12,
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`2021 preliminary injunction orders. Accordingly, the court will construe plaintiffs’ filing as a
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`motion for further injunctive relief and specifically for an order requiring equitable restitution.
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`When the court inquired as to the relevant legal standard governing their pending motion,
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`plaintiffs pointed to the framework established in Frederick County Fruit Growers Association v.
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`McLaughlin, 703 F. Supp. 1021, 1024 (D.D.C. 1989) (“Frederick County I”), aff’d sub nom.
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`Frederick Cnty. Fruit Growers Ass’n, Inc. v. Martin, 968 F.2d 1265 (D.C. Cir. 1992) (“Frederick
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`County II”). That case too involved an Administrative Procedure Act (“APA”) challenge of a
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`DOL rule affecting wage rates for migrant farmworkers. After growers underpaid the
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`farmworkers for a period of time pursuant to the DOL’s invalid rule, the court in Frederick
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`2 “[C]ourts have inherent power to enforce compliance with their lawful orders through civil
`contempt.” Spallone v. United States, 493 U.S. 265, 276 (1990) (quoting Shillitani v. United
`States, 384 U.S. 364, 370 (1966)). “A party may be held in civil contempt where it ‘fail [ed] to
`take all reasonable steps within the party’s power to comply [with a specific and definite court
`order].’” Fed. Trade Comm’n v. Productive Mktg., Inc., 136 F. Supp. 2d 1096, 1107 (C.D. Cal.
`2001) (quoting In re Dual–Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695
`(9th Cir.1993)). “The party alleging civil contempt must demonstrate that the alleged contemnor
`violated the court’s order by ‘clear and convincing evidence,’ not merely a preponderance of the
`evidence.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.
`1993). Here, however, defendants have complied with each of the specific directives set forth in
`this court’s January 12, 2021 supplemental order, and it appears that there are no additional
`directives for which the court could enforce compliance. (See Doc. No. 44 at 11–12) (explaining
`that the DOL put employers on notice, as required by the court’s January 12, 2021 supplemental
`order); 86 Fed. Reg. 10,996 (publishing and giving effect to the 2021 AEWRs); W. Knight Foster
`P’ship v. Saratoga Data Sys., Inc., No. 16-cv-02406-PJH, 2018 WL 1000373, at *2 (N.D. Cal.
`Feb. 21, 2018) (“The court does not find “that any remedy is warranted under the preliminary
`injunction,” because defendants did comply with the preliminary injunction and “plaintiff[s]
`cannot [seek this relief] through the present motion to enforce the preliminary injunction.”).
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`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 5 of 14
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`County I found that equitable restitution required the growers to pay farmworker’s backpay. Id.
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`at 1028–29. In making this determination, the court in Frederick County I relied on
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`[t]he legal principle . . . that when funds have been either paid or
`withheld pursuant to an invalid administrative edict, the proper
`remedy is equitable restitution. However, because the restitutionary
`remedy is a matter of equity, reimbursement of funds will be required
`only to the extent that justice between the parties requires. Equity
`will require such a result only when the money was obtained in such
`circumstances that the possessor will give offense to equity and good
`conscience if permitted to retain it.
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`Id. at 1029 (emphasis added) (internal citations and quotation marks omitted).
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`The court finds this framework to be persuasive here, particularly in light of the shared H-
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`2A context. “The district court has broad latitude in fashioning equitable relief when necessary to
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`remedy an established wrong.” Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 986 (9th Cir.
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`1994); see also Frederick Cnty. II, 968 F.2d at 1272. That principle applies when an agency fails
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`to act pursuant to its governing statute’s provisions. See id. (“To limit relief . . . would unduly
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`interfere with the statutory scheme established by Congress.”); Democratic Cent. Comm. of D.C.
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`v. Washington Metro. Area Transit Comm’n, 485 F.2d 786, 824–25 (D.C. Cir. 1973) (When “a
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`party against whom an erroneous judgment or decree has been carried into effect is entitled, in the
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`event of a reversal, to be restored by his adversary to that which he has lost thereby. This
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`principle . . . is no less applicable to erroneous orders of an administrative agency than to those of
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`a court.”) (internal quotation marks omitted).
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`In applying this framework, the court must first determine whether “funds have been
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`either paid or withheld pursuant to an invalid administrative edict.” Frederick County I, 703 F.
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`Supp. at 1029. The question is therefore whether the Interim Period constitutes an “invalid
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`administrative edict.” In their motion, plaintiffs argue that the DOL’s February 23, 2021
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`publication of the 2021 AEWRs was nearly two months late under DOL’s own regulations, and
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`the court’s injunction did not eliminate DOL’s obligation to publish new AEWRs during calendar
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`year 2020 but rather sought to enforce that obligation. (Doc. No. 44 at 10–11.) They argue that
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`the 2020 AEWRs became invalid, even if provisionally kept in force and effect by the court, as of
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`January 1, 2021. (Id. at 11.) Plaintiffs acknowledge that the court’s January 12, 2021
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`supplemental order reserved the backpay issue until final judgment, but also assert that the issue
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`of backpay is now ripe for adjudication. (Id.) According to plaintiffs, it is now clear that the
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`2021 AEWRs represent a significant pay increase for farmworkers nationwide. (Id. at 9.)
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`Plaintiffs note that the AEWRs rose even faster in several major agricultural states, including
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`California, where the 2021 AEWR is more than 8.6 percent higher than the 2020 AEWR. (Id. at
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`10) (citing 86 Fed. Reg. at 10,996). Plaintiffs contend that this growth in the AEWRs should
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`have automatically and immediately resulted in raises for H-2A workers and U.S. farmworkers in
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`corresponding employment at H-2A program employers. (Id.) They note that the DOL’s
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`regulations do not permit H-2A employers to pay H-2A workers or U.S. farmworkers in
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`corresponding employment wages below the applicable AEWR in effect at the time the work is
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`performed. (Id.) (citing 20 C.F.R. § 655.122(l)). In sum, plaintiffs argue that H-2A workers
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`should not be underpaid due to the DOL’s invalid administrative action or inaction. (Id.)
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`The court agrees. When the court enjoined defendants from giving effect to the AEWR
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`final rule, it noted that the 2021 AEWRs not being timely published by December 31, 2020 was
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`“a predicament that the government itself has created.” (Doc. No. 37 at 32.) As plaintiffs’ put it,
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`“[h]ad DOL had access in December to the necessary FLS data on 2020 agricultural wages, it
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`undoubtedly would have been able to publish 2021 AEWRs by the end of the calendar year, as
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`required by 20 C.F.R. § 655.120(b)(2).” (Doc. No. 44 at 11.) Moreover, absent this court’s
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`preliminary injunction extending the compliance deadlines, defendants would have been in
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`violation of the DOL’s regulations. Indeed, defendants effectively conceded as much at the time
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`the preliminary injunction was issued. (Doc. No. 31 at 30) (“[I]f the Rule is vacated . . . DOL
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`will set the 2021 AEWRs using the 2020 rates, or, if that is not possible given DOL’s current
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`regulations, DOL will be forced to assess operating the H-2A Program without an AEWR . . . .”).
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`The court’s equitable extension of the DOL’s deadline was intended to facilitate
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`defendants’ compliance with the court’s preliminary injunction and other legal requirements.
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`Defendants assert that the court’s January 12, 2021 supplemental order “confirmed that the 2020
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`AEWRs remained ‘in effect during the interim period between December 24, 2020 and
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`publication of the final 2021 AEWRs.’” (Doc. No. 47 at 5) (citing Doc. No. 39 at 3). However,
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`the court ordered the publication of the final 2021 AEWRs and the extension of the 2020 AEWRs
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`pursuant to its power under the APA “to compel ‘agency action unlawfully withheld or
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`unreasonably delayed.’” Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing 5
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`U.S.C. § 706(1)). By that time, defendants had unreasonably delayed the publication of the 2021
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`AEWRs. Defendants cannot now take shelter under the court’s emergency relief to assert that a
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`valid administrative edict existed during the Interim Period. (See Doc. No. 47 at 10.) Moreover,
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`as plaintiffs noted at the hearing on the pending motion, a finding that the Interim Period was a
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`valid scheme is inconsistent with the reservation of the backpay determination in the January 12,
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`2021 supplemental order and its citation to Frederick County II, as there would otherwise have
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`been no reason to reserve this issue. Accordingly, the court finds that the Interim Period
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`constitutes an invalid administrative edict, and the difference between the 2020 AEWRs and the
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`2021 AEWRs constitutes funds withheld pursuant to that invalid administrative edict.
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`The court must next determine whether “justice between the parties requires” a backpay
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`award. Frederick Cnty. I, 703 F. Supp. at 1029. Answering this question requires a balancing of
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`the equities. Id. The court finds the factors set forth in Morrison v. United States Department of
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`Labor to be instructive and will therefore employ the approach adopted by the court in that case.
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`In applying this equitable restitution framework in the context of H-2A workers, the court in
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`Morrison held that “the weightiest factor for the Court’s consideration is whether the growers
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`relied on the approval by the DOL and whether such reliance was reasonable.” Morrison v. U.S.
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`Dep’t of Lab., 713 F. Supp. 664, 673 (S.D.N.Y. 1989). The court will therefore begin by
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`determining whether the growers reasonably relied on the DOL’s approval of lower wage rates
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`during the Interim Period.
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`In Frederick County II, the D.C. Circuit affirmed the district court’s backpay award, and
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`rejected the growers’ claims of reasonable reliance and substantial hardship. The court noted that
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`“when the growers made plans for the 1983 harvest and filed their job clearance orders to hire
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`H-2 workers, there was at the least a significant possibility that the 1983 harvest would be
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`governed” by the last effective regulation. Frederick Cnty. II, 968 F.2d at 1273. The court also
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`noted that, in light of the district court having enjoined the 1983 regulation, “the growers knew
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`‘full well that the [1983 regulation] was, if not flatly invalid, of at least dubious validity.’” Id. at
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`1274; see also id. (“If the growers ‘relied’ upon the 1983 regulation thereafter, then it was only in
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`the sense that they calculated that they were better off to pay the lower wage and hope to prevail
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`on appeal—figuring that prevailing on appeal would be a Pyrrhic victory if they had already paid
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`the higher wage. But that was merely an attempt at self-help, not a case of reasonable reliance.”).
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`In this case, any expectation that the growers would pay lower wage rates during the
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`Interim Period became unreasonable once defendants notified the public otherwise on January 15,
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`2021 pursuant to this court’s January 12, 2021 supplemental order. At that time, growers
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`certainly knew there was more than a significant possibility that the Interim Period’s wages
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`would be reset by the 2021 AEWRs. Frederick Cnty. II, 968 F.2d at 1273. However, the court
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`acknowledges that growers may well have reasonably relied on the expectation of lower wage
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`rates until they were given notice on January 15, 2021. In November, the DOL published the
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`AEWR final rule in the Federal Register informing growers that the 2021 AEWRs would no
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`longer be calculated based on the 2010 rule’s methodology, and it was not unreasonable for
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`growers to follow this direction. That rule was in effect for two days before it was enjoined, and
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`growers resumed paying farmworkers at the 2020 AEWRs’ rate. See Frederick Cnty. I, 703 F.
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`Supp. at 1029 (denying backpay for the 1984 harvest and finding that growers had reasonable
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`reliance under the DOL’s direction). This is distinguishable from Frederick County II, where the
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`court found that once “the district court enjoined the Secretary from implementing the 1983
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`regulation, the growers knew ‘full well that the [1983 regulation] was, if not flatly invalid, of at
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`least dubious validity.’” Frederick Cnty. II, 968 F.2d at 1274. In this case, even if growers knew
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`that the AEWR final rule was being litigated,3 that does not render their initial reliance on the
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`/////
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`3 See United Farm Workers v. Perdue, No. 1-20-cv-01452-DAD-JLT, 2020 WL 6939021, at *4
`n. 4 (E.D. Cal. Nov. 25, 2020).
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`AEWR final rule from November 5, 2020 to January 15, 2021 unreasonable in the court’s view.4
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`When plaintiffs moved for preliminary injunctive relief, there were potentially meritorious
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`arguments being advanced by both sides. Thus, the AEWR final rule was not so obviously
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`invalid that growers should have expected to prepare for AEWR rates calculated under the 2010
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`rule when plaintiffs filed this action. In sum, the court finds that consideration of the extent of the
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`reasonableness of the growers’ reliance upon the DOL weighs in favor of granting equitable
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`restitution to plaintiffs, but only as it pertains to the time period from January 15, 2021 to
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`February 23, 2021.
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`Other factors the court in Morrison considered included “the role of the DOL in setting
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`the rates, the timing of the action, the absence of a statutory refund power, and the lack of bad
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`faith.” Morrison, 713 F. Supp. at 675. As to the first factor, the court held that growers “should
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`not be forced to bear the cost” when “the wage rate was set by the DOL, not by the growers.” Id.
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`The same principle applies to this case.
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`However, the court finds that the timing of events in this case does weigh in favor of
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`granting equitable restitution. In Morrison, the DOL improperly applied the prevailing wage
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`legislation when approving growers’ H-2A work orders in the year 1986. Id. at 669. Growers
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`submitted their workorders by May 1986, and suit was brought in August 1986. Id. at 673. That
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`suit was filed “just days prior to the commencement of the harvest season.” Id. In contrast, this
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`action was filed twenty-five days after the AEWR final rule was promulgated on November 5,
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`2020. (See Compl.) On December 23, 2020, the court enjoined the rule two days after it went
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`into effect. (See Doc. No. 37.) The quick turnaround between the initiation of this lawsuit and
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`the short period of time that the AEWR final rule was in effect weighs in favor of granting
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`4 The court notes that the growers being nonparties to this action does not nullify the notice
`arising from the court’s rulings in this case. See Frederick Cnty. II, 968 F.2d at 1274 (affirming
`that the non-party growers were on notice given the court’s injunction); See NAACP v. Donovan,
`558 F. Supp. 218, 223 (D.D.C. 1982) (“NAACP I”) (“This suit requires determination of one basic
`issue—whether the DOL is complying with its own regulations. Clearly the ruling of the Court
`will affect all those people who are affected by the regulations at issue. But this fact does not
`make all of those effected individuals indispensable parties. Courts have often held that in suits
`to compel federal agencies to obey the law the countless people or entities who would be effected
`thereby do not become necessary parties.”).
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`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 10 of 14
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`equitable restitution. See Morrison, 713 F. Supp. at 675 (“As a result of this [three month] delay
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`[in bringing suit], the growers took actions which irrevocably committed them to cultivating their
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`crop and harvesting it with the help of H–2 workers.”).
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`The court next considers “the absence of a statutory refund power.” Id. Defendants
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`contend that this applies here because they lack the power to require employers to remit the
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`requested backpay. (Doc. No. 47 at 8–9.) Plaintiffs counter that the DOL’s regulations
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`contemplate circumstances where defendants can require a wage adjustment during a work
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`contract upon notice to the employer. (Doc. No. 44 at 10); see also 20 C.F.R. § 655.120(c) (“If
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`the prevailing hourly wage rate or piece rate is adjusted during a work contract, and is higher than
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`the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, or the
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`Federal or State minimum wage, in effect at the time the work is performed, the employer must
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`pay that higher prevailing wage or piece rate, upon notice to the employer by the Department.”).
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`Indeed, plaintiffs request that the court order the DOL to require any H-2A employer with H-2A
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`workers or U.S. farmworkers in corresponding employment during the Interim Period to certify
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`compliance with the wage adjustment requirement as part of its next H-2A application. (Id. at
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`14–15.) Plaintiffs note that courts have previously ordered the DOL to condition future
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`temporary labor certifications as a means of enforcing equitable restitution awards such as that
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`which they seek here. (Id. at 15 n. 10) (citing NAACP, Jefferson County Branch v. Donovan, 566
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`F. Supp. 1202 (D.D.C. 1983) (“NAACP II”)).
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`Explicit statutory authority supporting the award of equitable restitution is lacking.
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`Nonetheless, plaintiffs have persuasively argued that consideration of this factor is entitled to
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`little weight. Notably, the court in Morrison acknowledged that “Part 658 of the regulations does
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`refer to restitution, but a reading of the regulation indicates that it is purely voluntary and not
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`compulsory.” Morrison, 713 F. Supp. at 675; see also 20 C.F.R. § 658.502(a)(4)(ii)
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`(contemplating that an employer’s services can be terminated within a certain period of time
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`unless, among other things, the employer proves they provided restitution); 20 C.F.R.
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`§ 658.502(a)(5)(ii) (same); 20 C.F.R. § 658.504(a)(2)(ii) (explaining that services may be
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`reinstated to an employer if, among other things, the employer proves they provided restitution).
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`Case 1:20-cv-01690-DAD-JLT Document 58 Filed 05/14/21 Page 11 of 14
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`Thus, while there is no explicit statutory power to effectuate a backpay award, plaintiffs are
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`correct that, by the same token, DOL’s regulations do not foreclose a backpay award. In fact,
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`those regulations suggest that the DOL has the power in some form to require backpay.
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`Accordingly, the court finds that the absence of explicit statutory authority only slightly weighs
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`against the award of equitable restitution.
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`Next, the court considers whether “bad faith” was at play in this case. Morrison, 713 F.
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`Supp. at 676. There is nothing in the record suggesting that the growers acted in bad faith when
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`paying workers at the 2020 AEWR rates during the Interim Period. Id. (“[T]here is nothing in the
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`record which suggests that when the job orders were approved by the DOL, the growers believed
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`that the prevailing wage regulation was not properly applied.”). In fact, growers were complying
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`with this court’s January 12, 2021 supplemental order. (See Doc. No. 39.)
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`Finally, the court “consider[s] the public interest in seeing that restitution is granted.”
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`Morrison, 713 F. Supp. at 676. In their motion, plaintiffs argue that the growth in the AEWRs
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`should have automatically and immediately resulted in raises for H-2A workers and U.S.
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`farmworkers in corresponding employment at H-2A program employers. (Doc. No. 44 at 10.) As
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`plaintiffs have argued throughout this litigation, “[f]armworkers are among the lowest-paid
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`workers in the United States, so ‘[r]educing farmworkers wages by approximately four or five
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`percent would therefore clearly cause substantial harm to plaintiffs’ members and their families.’”
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`(Id. at 12) (citing Doc. No. 39 at 28). Plaintiffs further argue that many farmworkers struggle to
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`pay for bare necessities, and this challenge has been exacerbated by increased consumer prices
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`and reduced hours over the past year caused by the ongoing COVID-19 pandemic. (Id. at 13)
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`(citing Doc. No. 39 at 29). Plaintiffs estimate, based on H-2A job order certification data, that the
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`typical affected farmworker employed in California since the start of 2021 would receive
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`approximately $325.00 in wage adjustments (id.), a significant sum for a worker on a subsistence
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`income. Nationwide, plaintiffs estimate that more than 73,200 H-2A workers would receive
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`wage adjustments, with a typical payment of approximately $132.00. (Id.)
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`Defendants argue that growers operate within a market, setting prices based on the costs
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`of inputs and labor costs, and “[r]etrospectively increasing that cost would put the growers in a
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`difficult position because they are, of course, unable to” make adjustments “to reflect the true cost
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`of labor.” (Doc. No. 47 at 13.) (citing NAACP I, 558 F. Supp. at 224). Defendants also argue that
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`such reliance interests are heightened when the amount of potential backpay is not calculated or
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`calculable until after the relevant work has already been performed. (Id. at 13–14.) Defendants
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`note that while courts have issued backpay awards in this context in the past, the proper rate in
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`those cases had already been calculated by DOL and was known to employers. (Id. at 14) (citing
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`NAACP II, 566 F. Supp. at 1210).
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`The court acknowledges that there are credible arguments on both sides with respect to
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`this factor. In the end, however, it is plaintiffs who have the far more compelling case as to the
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`need for an order requiring equitable restitution. As previously noted, the Ninth Circuit has
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`observed that “[w]hen a family is living at subsistence level, the subtraction of any benefit can
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`make a significant difference to its budget and to its ability to survive.” Paxton v. Sec’y of Health
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`& Human Servs., 856 F.2d 1352, 1354 (9th Cir. 1988). The farmworkers should not bear this
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`cost because of the situation defendants have created. That being said, the court acknowledges
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`that the true cost of labor during the Interim Period exceeded plaintiffs’ predictions based on FLS
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`trends. (Compare Doc. No. 39 at 28 with Doc. No. 44 at 7.) Growers had no way to accurately
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`predict what their labor inputs and costs would be, and as stated above, many growers’ reliance
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`on the AEWR final rule may have not been unreasonable until they were given notice by
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`defendants on January 15, 2021 that the award of backpay was being contemplated by this court.
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`On balance, the court finds that the public interest factor weighs strongly in favor of granting
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`equitable restitution. However, the backpay period shall exempt the dates January 1, 2021 to
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`January 14, 2021. Cf. Frederick Cnty. II, 968 F.2d at 1274 (“[B]ecause the 1983 regulation was
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`promulgated on the eve of the 1983 harvest and was in effect for only six days in 1983—and the
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`district court exempted these s