`
`
`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 -
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 2 of 31
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`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 -
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 3 of 31
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`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
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` 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
`
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 6 of 31
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`
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`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,
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 7 of 31
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`
`
`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.
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`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
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 9 of 31
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`
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`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
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 10 of 31
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`
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`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
`
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 11 of 31
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`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
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`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.
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`Case 1:20-cv-01690-DAD-JLT Document 70 Filed 06/10/21 Page 13 of 31
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`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).
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`1. The Intervenors Motion is Timely
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`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
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`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).
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`[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[].’
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`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
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`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.”).
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`2. The Intervenors have direct, substantial, and legally protectable
`interest that may be impaired by this litigation
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`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
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`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