throbber
Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 1 of 31
`
`
`Christopher J. Schulte (D.C. Bar No. 500878) (Pro Hac Vice Pending)
`SMITH, GAMBRELL & RUSSELL, LLP
`1055 Thomas Jefferson Street, NW
`Suite 400
`Washington, DC 20007
`Phone: 202-263-4344
`Fax: 202-263-4322
`Email: cschulte@sgrlaw.com
`
`Patrick J. Cain, CSB #105331
`Smith, Gambrell & Russell, LLP
`444 South Flower Street, Suite 1700
`Los Angeles, CA 90071
`Tel: (213) 358-7213; Fax: (213) 358-313
`Email: pcain@sgrlaw.com
`
`Robert P. Roy (SBN 74982)
`Ventura County Agricultural Association
`916 W. Ventura Blvd., Suite 101
`Camarillo, CA 93010
`Tel.: (805) 388-2727
`Fax: (805) 388-2767
`Email: rob-vcaa@pacbell.net
`
`Attorneys for the Intervenors
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`
`UNITED FARM WORKERS, et al.,
`Plaintiff,
`
`Case No.: 1:20-cv-01690-DAD-JLT
`
`vs.
`
`THE UNITED STATES DEPARTMENT OF
`LABOR, et al.,
`Defendant
`
`
`
`NOTICE OF MOTION AND JOINT
`MOTION TO INTEREVENE OF
`NATIONAL COUNCIL OF
`AGRICULTURAL EMPLOYERS and
`WESTERN GROWERS ASSOICATION
`
`JOINT MOTION TO INTERVENE
`
`NCAE, et. al., Motion to Intervene -1:20-cv-01690-DAD-JLT
`- 1 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 2 of 31
`
`
`Pursuant to Federal Rules of Civil Procedure 24(a)(2) and 24(b)(1)(B), the National
`
`Council of Agricultural Employers and Western Growers Association
`(hereinafter
`“Intervenors”) move to intervene jointly in this case.
`1. This motion is a joint motion. Intervenors are represented by the same counsel and share the
`same interests. Neither anticipates that any divergence of interests relative to this litigation
`will develop. They therefore ask that they be treated as if they were one party rather than
`four for the purposes of this motion, specifically, and of this litigation, in general.
`2. Intervenors accompany this Joint Motion with a Brief in Support, a proposed Motion for
`Reconsideration and supporting memorandum and order (Exhibit 1), and a proposed Order
`granting the relief requested herein.
`3. Intervenors consulted with counsel for the current parties with respect to this motion as a
`courtesy. Defendants have not provided a position on the Joint Motion to Intervene. At this
`time, Plaintiffs oppose this motion to intervene.
`Intervention as a Right – Federal Rules of Civil Procedure 24(a)(2)
`4. Intervenors Joint Motion is timely because Intervenors first became aware that the parties to
`this action would undoubtably not make all of Intervenors’ arguments and do not share the
`same ultimate objective through the recent Stipulation and Proposed Order to Extend
`Deadline to Comply with the Courts Order jointly filed by the parties to this action. United
`Farm Workers v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. May 14, 2021), ECF 60.
`5. The National Council of Agricultural Employers and Western Growers Association
`represents a significant majority of agricultural employers who utilize the H-2A temporary
`nonimmigrant visa program who are affected by the Court’s adjudication of this matter by
`the Court’s adjudication of this matter through their current usage of the H-2A temporary
`nonimmigrant program, their interests are directly at stake.
`6. The disposition of this action in the absence of the Intervenors would impair or impede their
`members’ interests.
`
`NCAE, et. al., Motion to Intervene -1:20-cv-01690-DAD-JLT
`- 2 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 3 of 31
`
`
`7. The existing parties to this action will not adequately represent the Intervenors interest as
`evidenced through the recent Stipulation and Proposed Order to Extend Deadline to Comply
`with the Courts Order jointly filed by the parties to this action. United Farm Workers v. Dep’t
`of Labor, No. 20-cv-1690 (E.D. Cal. May 14, 2021), ECF 60.
`
`
`Permissive Intervention – Federal Rules of Civil Procedure 24(b)(1)(B)
`8. Alternatively, Intervenors should be allowed to intervene permissively because their claim
`shares common questions of law and fact with that of the main action.
`9. Intervention is therefore proper under either Rule 24(a)(2) and (b)(1)(B).
`
`For the foregoing reasons and such others as may appear to the Court, Intervenors
`respectfully request that their Joint Motion to Intervene be granted.
`
`DATED: June 10, 2021
`
`
`
`
`
`
`
`Respectfully submitted,
`SMITH, GAMBRELL & RUSSELL, LLP
`
`/s/. Patrick J.Cain
`Patrick J. Cain
`Attorney for the Intervenor
`
`
`
`NCAE, et. al., Motion to Intervene -1:20-cv-01690-DAD-JLT
`- 3 -
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 4 of 31
`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 4 of 31
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` EXHIBIT 1
`
`EXHIBIT 1
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 5 of 31
`
`
`
`Christopher J. Schulte (D.C. Bar No. 500878) (Pro Hac Vice Pending)
`SMITH, GAMBRELL & RUSSELL, LLP
`1055 Thomas Jefferson Street, NW
`Suite 400
`Washington, DC 20007
`Phone: 202-263-4344
`Fax: 202-263-4322
`Email: cschulte@sgrlaw.com
`
`Patrick J. Cain, CSB #105331
`Smith, Gambrell & Russell, LLP
`444 South Flower Street, Suite 1700
`Los Angeles, CA 90071
`Tel: (213) 358-7213; Fax: (213) 358-313
`
`Robert P. Roy (SBN 74982)
`Ventura County Agricultural Association
`916 W. Ventura Blvd., Suite 101
`Camarillo, CA 93010
`Tel.: (805) 388-2727
`Fax: (805) 388-2767
`Email: rob-vcaa@pacbell.net
`
`Attorneys for the Intervenors
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`
`DEFENDANTS
`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT
`MOTION TO INTERVENE
`
`INTRODUCTION
`
`The National Council of Agricultural Employers (NCAE) and Western Growers
`
`
`
`
`
`PLAINTIFFS,
`
`
`UNITED FARM WORKERS, ET AL.,
`
`
`
`VS.
`
`THE UNITED STATES DEPARTMENT OF
`LABOR, ET AL.,
`
`
`
`
`Case No.: 1:20-cv-01690-DAD-JLT
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`JOINT MOTION TO INTERVENE OF
`NATIONAL COUNCIL OF
`AGRICULTURAL EMPLOYERS and
`WESTERN GROWERS ASSOCIATION
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 6 of 31
`
`
`
`Association (WGA) (collectively, “Intervenors”) move to intervene jointly in this case as
`intervenor defendants. Intervenors will challenge the validity and enforceability of an
`equitable remedy (back wages) sought by Plaintiffs and awarded by this Court. This is an
`exceptional problem because none of the parties to this matter would have to pay these back
`wages, which are tens of millions of dollars; instead, that will be shunted to parties heretofore
`have no participation or say in this lawsuit. Intervenors are accordingly entitled to intervene as
`a matter of right under Federal Rule of Civil Procedure 24(a)(2). Intervention is particularly
`necessary given that Defendant United States Department of Labor (DOL), while it has a
`general interest in defending its own regulations and following the Administrative Procedures
`Act (APA), 5 U.S.C. § 500 et seq., it does not have the specific interest or direct exposure in
`the event of a violation of those regulations or the APA that a retroactive wage increase would
`create. Thus, Defendants do not adequately represent the interests of the Intervenors, and
`Ninth Circuit precedent is clear that allowing intervention as of right is therefore necessary. In
`the alternative, Intervenors request permissive intervention pursuant to Rule 24(b).
`Intervenors’ motion is timely because although Defendants opposed Plaintiffs’ attempts
`to create an unlawful retroactive wage increase in their March 23, 2021 submission to the
`Court [ECF No. 47], the discussion since the Court’s May 14, 2021 Order seems to have
`moved to a possible expansion of the original class of employers and workers subject to this
`wage hike, and the Department has neither moved for reconsideration of that Order nor
`committed to an appeal of the Order to the Ninth Circuit.
`The current parties to this action will not be prejudiced by allowing intervention
`because an Answer to the Complaint has yet to be filed and this litigation remains in the
`preliminary stages. On the other hand, Intervenors’ members will be prejudiced if intervention
`is not granted because their interests (e.g., not paying back wages of which they had no notice
`or expectation of paying) would be impaired or impeded if this action proceeds in their
`absence, as Intervenors’ members are the responsible party for paying the back wages this
`Court has ordered. Cf. Fed. R. Civ. P. 19(b)(1).
`Counsel for Intervenors have conferred with counsel for the government Defendants,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 7 of 31
`
`
`
`who indicated that they are not taking a position as to the motion at this time. Counsel for
`Intervenors have conferred with Plaintiffs’ counsel as well, who indicated that at this time, they
`oppose a stipulation to this Motion to Intervene.
`
`
`FACTUAL AND PROCEDURAL BACKGROUND
`A. The Present Litigation
`On July 26, 2019, Defendants published a Notice of Proposed Rulemaking (NPRM)
`entitled Temporary Agricultural Employment of H–2A Nonimmigrants in the United States, 84
`Fed. Reg. 36,168 (July 26, 2019). On September 30, 2020, the United States Department of
`Agriculture (USDA) published a notice suspending the collection of the Farm Labor Survey
`(FLS). See Notice of Revision to the Agricultural Labor Survey and Farm Labor Reports by
`Suspending Data Collection for October 2020, 85 Fed. Reg. 61,719 (Sept. 30, 2020). In
`consideration of that notice and many comments received on the NPRM, Defendants published
`a Final Rule entitled, Adverse Effect Wage Rate Methodology for the Temporary Employment
`of H-2A Nonimmigrants in Non-Range Occupations in the United States, 85 Fed. Reg. 70445
`(November 5, 2020) (hereinafter “Wage Rule”), seeking to remove the existing requirement to
`rely on the FLS for setting the annual Adverse Effect Wage Rate (AEWR). See 20 C.F.R. §
`655.103(b).
`Plaintiffs filed this case on November 30, 2020 seeking an injunction and vacatur of the
`Wage Rule, and a declaration from this Court that the Wage Rule is unlawful under the APA.
`ECF No. 1 (November 30, 2020). Plaintiffs also sought a Preliminary Injunction barring
`Defendants from enforcing the Wage Rule. ECF No. 5 (November 30, 2020). Defendants
`have not filed an Answer to Plaintiffs’ complaint. Defendants have filed and defended an
`Opposition to the Plaintiffs’ request for Preliminary Injunction as well as subsequent
`Oppositions to Plaintiffs’ additional request for equitable relief. ECF Nos. 31 & 47. On
`December 21, 2020, the Wage Rule went into effect pursuant to a 30-day delayed effective
`date as required under the APA, barring extraordinary circumstances. This Court preliminarily
`enjoined the Wage Rule on December 23, 2020. ECF No. 37.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 8 of 31
`
`
`
`Following apparent discussions between Plaintiffs and Defendants, this Court issued a
`Supplemental Order regarding its Preliminary Injunction requiring DOL to publish the 2021
`AEWRs by February 25, 2021. ECF No. 39. At that time this Court reserved the issue of
`equitable remedies (back wages) until it rendered a final ruling on the merits of Plaintiffs’
`claims. DOL subsequently published the 2021 AEWRs on February 23, 2021. See Labor
`Certification Process for the Temporary Employment of Aliens in Agriculture in the United
`States: 2021 Adverse Effect Wage Rates for Non-Range Occupations, 86 Fed. Reg. 10996
`(Feb. 23, 2021). Plaintiffs then filed a Motion to Enforce Compliance with the Court’s Order
`on March 11, 2021, seeking to have DOL require H-2A employers pay back wages to H-2A
`workers and United States workers in corresponding employment for the difference between
`the existing AEWRs and the higher AEWRs published on February 23, 2021 for work
`performed prior to DOL’s publication of the new AEWRs. ECF No. 44. Defendants opposed
`this motion explaining that DOL’s regulations do not allow for a back pay remedy or related
`enforcement, and that the APA does not allow this Court to grant an equitable remedy. ECF
`No. 47.
`Nevertheless, on May 14, 2021, after two hearings, this Court granted Plaintiffs
`equitable relief in the form of back wages for a class of H-2A workers and United States
`domestic workers in corresponding employment. ECF No. 58. Plaintiffs and Defendants
`subsequently filed on May 18, 2021, a Stipulation and Proposed Order to Extend the Deadline
`to Comply with the Court’s Order, in which the Plaintiffs and Defendants indicated that they
`had conferred on May 15 and 17, 2021. ECF No .60. Plaintiffs and Defendants further stated
`that they are “working together in good faith to propose limited clarifying revisions to certain
`aspects of the Court’s order” to include “revisions to clarify which employers are subject to the
`Court’s order” and “proposed revisions with respect to the relevant compliance and
`enforcement mechanisms.” Id. at ¶ 7. On June 3, 2021, shortly after Intervenors notified
`parties of their intention to intervene in this action, Plaintiffs and Defendants submitted a Joint
`Status Report with clarifying revisions to the Court’s order. ECF No. 64.
`B. The H-2A AEWR
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 9 of 31
`
`
`
`The H-2A visa program arises from and draws its name from the Immigration and
`
`Nationality Act of 1952 (“INA”) as amended by the Immigration Reform and Control Act of
`1986 (“IRCA”). “Congress designed the program to ‘balance two competing interests: to
`assure employers an adequate labor force on the one hand and to protect the jobs of citizens on
`the other.’” U.S. Equal Employment Opportunity Comm’n v. Global Horizons, Inc., 915 F.3d
`631, 639 (9th Cir. 2019) (citation omitted); see also Am. Fed’n of Labor & Cong. of Indus.
`Orgs. (AFL-CIO) v. Dole, 923 F.2d 182, 184 (D.C. Cir. 1992) (DOL “is obliged to balance the
`competing goals of the statute – providing an adequate labor supply and protecting the jobs of
`domestic workers”).
`
`“Even if desirable, the Secretary has no authority to set a wage rate on the basis of
`attractiveness to workers. His authority is limited to making an economic determination of what
`rate must be paid all workers to neutralize any ‘adverse effect’ resultant from the influx of
`temporary foreign workers.” Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976). The
`Secretary has decided, through the H-2A regulations, that any “adverse effect” is avoided by
`requiring the payment of an AEWR. Under the H-2A regulations, then, “an employer must
`offer, advertise in its recruitment, and pay a wage that is the highest of the AEWR, the prevailing
`hourly wage or piece rate, the agreed-upon collective bargaining wage, or the Federal or State
`minimum wage” (20 C.F.R. § 655.120(a)), and that job orders attest that “[i]f the worker is paid
`by the hour, the employer must pay the worker at least the AEWR, the prevailing hourly wage
`rate, the prevailing piece rate, the agreed-upon collective bargaining rate, or the Federal or State
`minimum wage rate, in effect at the time the work is performed, whichever is highest, for every
`hour or portion thereof worked during a pay period.” 20 C.F.R. § 655.122(l) (emphasis added).
`
`For decades, DOL has calculated the AEWR based on the previous year’s survey data
`supplied by the U.S. Department of Agriculture. See Dole, 923 F.2d at 184 (upholding the
`AEWR regulation and noting that it was a “new, simpler methodology in which the [AEWRs]
`would be the previous year's annual regional average hourly wage for agricultural workers (the
`USDA average wage) with no added adjustments.”). As Plaintiff UFW itself has asserted,
`“until new AEWRs for a given year are published, workers receive only the AEWRs for the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 10 of 31
`
`
`
`previous year.” United Farm Workers of America, AFL-CIO v. Chao, 227 F. Supp. 2d 102,
`105 (D.D.C. 2002). The Court in UFW v. Chao added that “[i]t is undisputed that the AEWRs
`are not effective until they are published, and that the previous year’s AEWRs, based on two
`year old USDA data, are paid to agricultural workers until publication of the current AEWRs.”
`Id. at 109.
`
`
`C. The Proposed Intervenor Associations
`Intervenors are associations of agricultural employers, created and operated to represent
`the interests of those employers, particularly with respect to their participation in the H-2A visa
`program. Founded in 1964, NCAE is the national trade association focusing exclusively on
`agricultural labor issues from the employer’s viewpoint. NCAE represents approximately 85%
`of U.S. farm and ranch employers, as well as their agents and trade associations. NCAE also
`represents about 85% of the farm and ranch families presently utilizing the H-2A Temporary
`Agricultural Worker Visa Program. NCAE is a leading public policy advocate for agricultural
`employers and has a longstanding interest in employment and labor matters. WGA was founded
`in 1926, as a nonprofit association representing local and regional family farmers in California,
`Arizona, Colorado and New Mexico. WGA members grow, pack, and ship over half of the
`nation's fresh produce including nearly a third of America's fresh organic produce. WGA
`member companies are dedicated to providing a great variety of safe and healthy fresh fruits,
`vegetables and tree nuts to consumers. WGA is a leading public policy advocate for the fresh
`produce industry and has a longstanding interest in employment and labor matters.
`The Associations have standing to intervene in this matter based on this associational
`interest: they satisfy the test in Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
`(1977), which requires them to demonstrate that: (1) their members would otherwise have
`standing to sue in their own right; (2) the interests that they seek to protect are germane to their
`organizations’ purposes; and (3) neither the claim asserted nor the relief requested in this matter
`requires the participation of individual members in this lawsuit. Id.; see also Friends of the
`Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
`In addition to the general interest in seeing the H-2A program administered consistently
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 11 of 31
`
`
`
`with the requirements of the INA, APA, and DOL regulations, Intervenors’ members have an
`economic interest in the outcome of this litigation. See, e.g., Klamath-Siskiyou Wildlands Ctr. v.
`Grantham, No. 2-18-cv-02785-TLN-DMC (E.D. Ca. Dec. 15, 2018) (Order Granting Motion to
`Intervene by American Forest Resource Council, where the proposed intervenor-defendant’s
`members had an economic interest that the government defendants, supporting Judge Nunley’s
`finding of associational standing to represent that interest).
`
`Here, for example, Fresh Harvest is a member of both WGA and NCAE. See Declaration
`of Leticia Ridaura. They are not among the 72 employers referenced in Paragraph 9 of the
`Declaration of Brian D. Pasternak [ECF No. 64-1], as they did not file a job order and
`application between December 21, 2020 and February 23, 2021 [ECF No. 58 at 13, item 2.a],
`although they did employ H-2A workers during the period from January 15, 2021 and February
`23, 2021 [id. at 2.b], putting them into the potential group described in Paragraph 10 of the
`Pasternak Declaration [ECF No. 64-1]. Declarant Ridaura states that Fresh Harvest and the Farm
`Labor Association for Growers relied upon – potentially now to their detriment – on the website
`posting from the Department on January 15, 2021 that the only employers who might face a
`wage increase prior to publication of a new AEWR were those covered by the Court’s original
`order which, again, did not include those two employers. See Ridaura Declaration at ¶ 13.
`
`The parties do not identify the employers who are among the group covered by the
`Court’s existing Order, but as discussed in the Declaration of Michael Marsh, attached hereto,
`NCAE has inquired of its numerous members: employers, employer associations, and employer
`filing agents, and believes that it has identified employers who are NCAE members who would
`fall within the scope of the Court’s original Order (before UFW’s attempt to radically expand
`that group). See Marsh Declaration at ¶ 2.
`
`Thus, the associations that represent these employers, WGA and NCAE, have
`associational standing to represent H-2A employer’s interests in this matter, as to both the Order
`as written and the UFW proposed expansion. See Associated Gen. Contractors of Am., San
`Diego Chapter, Inc. v. Cal. Dep’t of Transp., 713 F.3d 1187, 1194 (9th Cir. 2013). To the extent
`that the existing parties to this action are considering expanding the scope of the Court’s remedy
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 12 of 31
`
`
`
`to cover all H-2A work during that January-February 2021 period, regardless of when the
`employer applied for a labor certification, additional NCAE and WGA members would suffer the
`same tangible harm from such an order, as set forth in the attached Declarations of Jason Resnick
`and Michael Marsh.
`
`The precise scope of the harm is, as yet, unknown, but the proposed remedy before this
`Court does not require such specificity. The Plaintiffs’ proposed relief of simply requiring the
`Department of Labor to publish a general notice that requires all affected employers to pay a
`retroactive wage increase does not require the direct participation of individual employers. The
`Associations, therefore, have associational standing to represent their members’ interests in this
`matter as Intervenor-Defendants.
`
`Argument
`
`Ninth Circuit precedent requires this Court to permit Intervenors to intervene as a
`matter of right. Intervenors’ motion is timely; they have direct, substantial, and legally
`protectable interests that will be (indeed, already are) impaired by this litigation; disposition of
`this litigation in their continued absence will impair or impede their interests; and the existing
`parties to this action have not and will not adequately represent their interests. Further, the
`existing parties to this action will not be prejudiced by this intervention. In the alternative,
`Intervenors also meet the requirements for permissive intervention, and the Court should
`exercise its discretion to permit intervention.
`
`
`A. The Intervenors are Entitled to Intervene as a Matter of Right
`
`Under the Federal Rules of Civil Procedure 24(a)(2), a movant may intervene as of
`right upon a motion showing:
`
`
`(1) the intervention application is timely; (2) the applicant has a
`significant protectable interest relating to the property or
`transaction that is the subject of the action; (3) the disposition of
`the action may, as a practical matter, impair or impede the
`applicant's ability to protect its interest; and (4) the existing parties
`may not adequately represent the applicant's interest.
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 13 of 31
`
`
`
`See Chevron Envtl. Mgmt. Co. v. Envtl. Prot. Corp., 335 F.R.D. 316, 321 (E.D. Cal. 2020)
`(Drozd, J.), citing Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897
`(9th Cir. 2011). “In evaluating these elements, the court is guided primarily by practical
`considerations, not technical distinctions, and no specific legal or equitable interest need be
`established.” Id., citing Citizens for Balanced Use, 647 F.3d at 897 (internal quotation marks
`omitted). Further, the court must “take all well-pleaded, nonconclusory allegations in the
`motion to intervene, the proposed complaint or answer in intervention, and declarations
`supporting the motion as true absent sham, frivolity or other objections.” Sw. Ctr. for
`Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).
`
`
`1. The Intervenors Motion is Timely
`
`Federal Rules of Civil Procedure 24(a) requires a motion for intervention to be timely.
`Sierra Club v. United States EPA, 995 F.2d 1478, 1481 (9th Cir. 1993). Timeliness is
`determined by viewing the totality of the circumstances facing the Intervenors. Smith v. L.A.
`Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir. 2016). In Smith, the court stated that timeliness
`focused on three factors: “(1) the stage of the proceeding at which an applicant seeks to
`intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” Id.
`citing United States v. Alisal Water Corp., 370 F.3d 915, 924 (9th Cir. 2004).
`“The crucial date for assessing the timeliness of a motion to intervene is when
`proposed intervenors should have been aware that their interests would not be adequately
`protected by the existing parties." Chevron, 335 F.R.D. at 322 citing Smith, 830 F.3d at 854
`(emphasis added) (quoting Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999)). “[T]here is a
`presumption that the government will adequately represent a party's interests.” Low v. Altus
`Fin. S.A., 44 Fed. Appx. 282, 284 (9th Cir. 2002) citing United States v. Carpenter, 298 F.3d
`1122, 1125 (9th Cir. 2002). “Precisely because of this presumption, a party's motion to
`intervene is timely even when intervention is sought at a late stage in the proceeding, as long as
`the party seeking intervention files an intervention motion in a timely manner once on notice
`that the government representation is inadequate.” Id. at 284-28. “Where a change of
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 14 of 31
`
`
`
`circumstances occurs, and that change is the ‘major reason’ for the motion to intervene, the
`stage of proceedings factor should be analyzed by reference to the change in circumstances,
`and not the commencement of the litigation.” Smith, 830 F.3d at 854 (9th Cir. 2016).
`Intervenors became aware that their interest would no longer be adequately protected
`by Defendants when two things happened: 1) they failed to challenge this Court’s May 14,
`2021 order, which says that the parties think “there is nothing more in terms of the record or
`evidence that the court requires or that would assist the court in rendering a decision on the
`merits of this action” and this Court suggested that the parties “stipulate to entry of judgment
`or to otherwise resolve this matter with a request for dismissal.” ECF No. 58; and 2)
`Defendants subsequently, May 18, 2021, entered a stipulated and proposed order evidencing
`their apparent willingness to craft “proposed revisions to clarify which employers are subject to
`the Court’s order” as well as craft “proposed revisions with respect to the relevant compliance
`and enforcement mechanisms.” ECF No. 60. This raised serious concerns among agricultural
`employers that the Defendants will not adequately represent the interests of the Intervenors and
`was the first point at which Intervenors became aware of the newly-divergent interests between
`them and the Defendant. Until then, it appeared, at least publicly, that Defendants were
`defending their regulations and administration of their duties of the H-2A Temporary
`Nonimmigrant Visa Program. See ECF Nos. 31 & 47.
`The Ninth Circuit has held that “prejudice to existing parties is ‘the most important
`consideration in deciding whether a motion for intervention is untimely.’” Smith, 830 F.3d at
`857 (9th Cir. 2016) citing United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984).
`
`
`[T]he only “prejudice” that is relevant under this factor is that
`which flows from a prospective intervenor’s failure to intervene
`after he knew, or reasonably should have known, that his interests
`were not being adequately represented—and not from the fact that
`including another party in the case might make resolution more
`‘difficult[].’
`
`Id. The only action that has occurred in this litigation since Defendants made clear they no
`longer represented Intervenors’ same interest is the filing of yet another stipulation and proposed
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 15 of 31
`
`
`
`order, where again Defendants fail to adequately represent the interest of the Intervenors
`individually and as a whole class of H-2A employers, but state they are still ascertaining if they
`will appeal the Court’s Order. ECF No. 64. Parties to this action will not be prejudiced by the
`length of time, three weeks, that passed from the Intervenors learning of the divergent interests
`of the Defendants and the Intervenors.
`The final element of the timeliness review is the reason for the length of the intervenor’s
`delay. Smith, 830 F.3d at 854 (9th Cir. 2016). Here there is no delay, this is the first practical
`time Intervenors could have joined this case. The three weeks that has passed since Intervenors
`learned of the divergent interest of the Defendants and Intervenors is similar to what the Smith
`court approved. Id. at 860 (9th Cir. 2016) (reversing stating Intervenors filed their motion “only
`weeks after definitively learning their interest were not adequately represented by existing
`parties.”).
`
`2. The Intervenors have direct, substantial, and legally protectable
`interest that may be impaired by this litigation
`
`Intervenors have a direct, substantial, and legally protectable interest that may be, indeed
`already is being, impaired by this litigation. Chevron, 335 F.R.D. at 321 (E.D. Cal. 2020). “It is
`generally enough that the interest [asserted] is protectable under some law, and that there is a
`relationship between the legally protected interest and the claims at issue.” Berg, 268 F.3d at
`818 (quoting Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir. 1993)). “An applicant
`demonstrates a significantly protectable interest when the injunctive relief sought by the
`plaintiffs will have direct, immediate, and harmful effects upon a third party's legally protectable
`interests.” Id. at, 818 (9th Cir. 2001) (internal citations omitted) citing Forest Conservation
`Council v. United States Forest Serv., 66 F.3d 1489, 1494 (9th Cir. 1995).
`In Sierra Club, the plaintiffs attempted to restrict the City of Phoenix from intervening in
`their case against the Environmental Protection Agency (EPA). Sierra Club v. United States
`EPA, 995 F.2d 1478 (9th Cir. 1993). The court determined that the City of Phoenix had a
`protectable interest in the relief sought in that case, injunctive relief under the Clean Water Act
`restricting how the EPA could grant water discharge permits. Id. at 1483. The court reasoned
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 16 of 31
`
`
`
`that because the Clean Water Act “establishes a scheme, applicable to many municipal water
`treatment plants, explicitly designed to permit and thereby regulate the disc

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket