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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 1 of 14
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`Mark Selwyn (SBN 244180)
`mark.selwyn@wilmerhale.com
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, California 94306
`Telephone: (650) 858-6031
`Facsimile: (650) 858-6100
`
`Attorney for Plaintiffs
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`FRESNO DIVISION
`
`
`
`Case No. 1:20-cv-01690-DAD-JLT
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`PLAINTIFFS’ OPPOSITION TO JOINT
`MOTION TO INTERVENE OF
`NATIONAL COUNCIL OF
`AGRICULTURAL EMPLOYERS AND
`WESTERN GROWERS ASSOCIATION
`Hearing On Motion
`
`Date: June 22, 2021
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`Time: 1:30 p.m.
`
`Before: Judge Dale A. Drozd
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`
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`
`
`UNITED FARM WORKERS and UFW
`FOUNDATION,
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`
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`Plaintiffs,
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` v.
`
`THE UNITED STATES DEPARTMENT OF
`LABOR and MARTIN J. WALSH, in his
`official capacity as United States Secretary of
`Labor,
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`Defendants.
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 2 of 14
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`INTRODUCTION
`The National Council of Agricultural Employers and Western Growers Association (“proposed
`intervenors”) waited until June 10, 2021 to seek to intervene in this action—more than six months after
`the complaint was filed, five months after this Court granted a preliminary injunction, and almost five
`months since the Court ordered the U.S. Department of Labor (“DOL”) to notify employers about the
`potential for future wage-adjustment payments. Proposed intervenors offer no reasonable justification
`for their protracted delay. Nor could they. Public statements made by proposed intervenors demonstrate
`that they not only have been aware of this litigation from its outset, but they have been closely
`monitoring. Respectfully, to characterize the proposed intervenors’ motion as filed at the eleventh hour
`would be charitable. Prior to the motion, the Court had already issued a wage-adjustment order, the
`parties had fully briefed proposed amendments to that order, and this Court had indicated it was fully
`“prepared to issue a final order addressing the parties’ requests for modification.” ECF No. 66.
`Therefore, intervention of any kind is inappropriate here because of the proposed intervenors’
`prolonged and unjustified delay in seeking leave to intervene. Permitting intervention at this juncture
`would only serve to unduly delay final resolution of the Court’s June 11 order amending its earlier
`wage-adjustment order. This Court has recognized the need for avoiding delay in implementing its
`order. Moreover, proposed intervenors have failed to demonstrate that their interests have not been
`adequately represented by defendants, or that the Court has not taken their interests into consideration
`throughout this litigation.
`The motion should be denied.
`
`BACKGROUND
`This case—as well as a predecessor lawsuit against the U.S. Department of Agriculture
`(“USDA”)—concerns the government’s attempt to unlawfully freeze the wages of H-2A workers and
`U.S. workers in corresponding employment. On October 13, 2020, plaintiffs filed a complaint against
`the USDA, then-U.S. Secretary of Agriculture Sonny Perdue, and then-Under Secretary of Farm
`Production and Conservation William Northey that alleged that defendants’ decision to discontinue the
`Farm Labor Survey and cease publication of the Farm Labor Report violated the Administrative
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`PLS.’ OPP. TO MOT. TO INTERVENE
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 3 of 14
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`Procedure Act because it was arbitrary and capricious and was made without the requisite notice-and-
`comment rulemaking procedure. See UFW v. Perdue, No. 1:20-cv-1452-DADJLT (Oct. 13, 2020), ECF
`No. 1. Plaintiffs simultaneously filed a Motion for Temporary Restraining Order and Preliminary
`Injunction to prevent USDA from implementing its decision, see UFW v. Perdue, No. 1:20-cv-1452-
`DADJLT (Oct. 13, 2020), ECF No. 3, and on October 28, 2020, the Court granted plaintiffs’ motion, see
`UFW v. Perdue, No. 1:20-cv-1452-DADJLT (Oct. 28, 2020), ECF No. 33.
`On November 30, 2020, plaintiffs filed a complaint and motion for preliminary injunction in the
`instant action seeking to prevent DOL from implementing its November 5, 2020 Final Rule revising the
`methodology for calculating Adverse Effect Wage Rates (“AEWRs”) for the H-2A program. See ECF
`Nos. 1, 5. On December 7, 2020, defendants filed their opposition to plaintiffs’ motion for preliminary
`injunction. ECF No. 31. On December 9, 2020, the State of California sought leave to appear as
`Amicus Curiae in support of plaintiffs’ motion for preliminary injunction, which the Court granted on
`December 10. ECF Nos. 32, 33. Plaintiffs filed a reply to defendants’ opposition to the motion for
`preliminary injunction on December 11, 2020. ECF No. 34. On December 14, 2020, the Court held a
`hearing on the motion for preliminary injunction, ECF No. 36, and on December 23, 2020, the Court
`granted plaintiffs’ motion, ECF No. 37.
`On January 6, 2021, the parties submitted a joint status report offering competing views of what
`relief was appropriate in light of the Court’s December 23 order. ECF No. 38. The Court issued a
`supplemental order regarding preliminary injunctive relief on January 12, 2021. ECF No. 39. That
`order “reserve[ed] the issue of whether any award of backpay is warranted based upon the difference
`between the 2020 AEWRs and the final 2021 AEWRs.” Id. at 2. However, the Court directed
`defendants “to provide notice to all H-2A employers who submit job orders and applications for H-2A
`labor certification between December 21, 2020 and the publication of the final 2021 AEWRs, informing
`them of the potential backpay claim.” Id. at 3. Defendants issued the court-ordered notice on January
`15, 2021. See U.S. Dep’t of Labor, Employment and Training Administration – Announcements (Jan.
`15, 2021), https://www.dol.gov/agencies/eta/foreign-labor/news.
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 4 of 14
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`On February 12, 2021, USDA finally complied with the preliminary injunction entered in UFW
`v. Perdue, No. 1:20-cv-1452 (E.D. Cal. Oct. 28, 2020), and published the Farm Labor Report originally
`scheduled for November 2020.1 The Farm Labor Report confirmed that farmworkers wages have
`continued to increase significantly; indeed, the Farm Labor Survey determined that the gross wage rate
`for field and livestock workers during the October 2020 reference week had increased six percent year-
`over-year.2 Moreover, the annual average gross wage for field and livestock workers—the figure that
`determines the 2021 AEWRs under DOL’s 2010 regulation—rose approximately five percent, to
`$14.62.3
`On February 23, 2021, DOL published the 2021 AEWRs, as required by the Court’s January 12,
`2021 supplemental order. 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. 10,996 (Feb. 23, 2021). On March 11, 2021, plaintiffs filed a motion seeking an extension of the
`Court’s preliminary injunction in the form of equitable restitution; namely, plaintiffs sought an order
`directing defendants to notify H-2A employers that they were required to provide wage-adjustment
`payments to farmworkers who worked during the January 1 to February 23, 2021 period when 2020
`AEWRs applied instead of the higher 2021 rates. ECF No. 44. Defendants filed an opposition to the
`motion on March 23, 2020, ECF No. 47, to which plaintiffs replied on March 26, 2021, ECF No. 48.
`The Court held hearings on the motion on April 6, 2021 and May 11, 2021. See ECF Nos. 51, 57. On
`May 14, 2021, the Court granted plaintiffs’ motion. See ECF No. 58.
`On June 3, 2021, the parties filed a joint submission proposing amendments to the Court’s May
`14 wage-adjustment order. Plaintiffs proposed eliminating language in Part 2.a of the Court’s order that
`limits the order’s scope to H-2A employers that submitted job orders and applications for H-2A labor
`certification between December 21, 2020 and February 23, 2021. See ECF No. 64 at 2-3. Defendants
`
`
`1 See USDA Nat’l Agric. Statistics Serv. (NASS), Farm Labor (Feb. 11, 2021),
`https://release.nass.usda.gov/reports/fmla0221.pdf.
`2 See id. at 1.
`3 See id. at 2.
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`PLS.’ OPP. TO MOT. TO INTERVENE
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 5 of 14
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`opposed plaintiffs’ proposed amendment while also proposing amended language for Part 3 of the
`Court’s wage-adjustment order. On June 8, 2021, the Court issued a minute order instructing the parties
`to submit supplemental briefing to clarify plaintiffs’ request to expand the scope of the Court’s wage-
`adjustment order. ECF No. 66. The parties submitted their supplemental briefs on June 10, 2021. ECF
`Nos. 67, 69. Later that day, proposed intervenors filed a motion to stay the Court’s consideration of the
`parties’ request to amend the wage-adjustment order and a motion to intervene. ECF Nos. 69, 70.
`On June 11, 2021, the Court ruled on the parties’ proposed amendments. ECF No. 74. The
`Court declined to expand the May 14 order’s scope to apply to employers that submitted H-2A job
`orders or applications before December 21, 2020. See id. at 3-4. The Court clarified, however, that the
`May 14 order applied to H-2A employers that submitted either job orders or applications between
`December 21, 2020 and February 23, 2021, not just those employers that submitted both documents
`during that period. See id. at 7.
`Since October 2020, proposed intervenors have actively been monitoring the ongoing litigation
`between plaintiffs and USDA and defendants.4 Nonetheless, until now, proposed intervenors did not
`seek to intervene or otherwise make their position known to the Court. Proposed intervenors now seek
`to intervene as defendants to oppose plaintiffs’ proposed (now rejected) amendment to the May 14
`wage-adjustment order.
`
`
`4 See, e.g., Ag Worker Lawsuit Muddies Status of H-2A Adverse Effect Wage Rate, Fruit Grower News
`(Oct. 26, 2020), https://fruitgrowersnews.com/news/ag-worker-lawsuit-muddies-status-of-h-2a-adverse-
`effect-wage-rate/ (noting that the NCAE communicated to members that the lawsuit against USDA
`could impact wages under the H-2A program); Tom Karst, Farmworker Groups File Lawsuit Over H-
`2A Wages, The Packer (Dec. 1, 2020), https://www.thepacker.com/news/industry/farmworker-groups-
`file-lawsuit-over-h-2a-wages (NCAE president and CEO commenting on lawsuit); Farm Workers Union
`Sues DOL Over New Rule for H-2A Wage Rates, Western Growers Ass’n (Dec. 1, 2020),
`https://www.wga.com/blog/farm-workers-union-sues-dol-over-new-rule-h-2a-wage-rates (Western
`Growers Association blog post about the then-recently filed lawsuit), Philip Brasher & Ben Nuelle,
`Judge Blocks H-2A Wage Rate Freeze, Reforms, AgriPulse (Dec. 24, 2020), https://www.agri-
`pulse.com/articles/15060-judge-blocks-h-2a-wage-rate-freeze-reforms (NCAE president and CEO
`commenting on lawsuit).
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 6 of 14
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`I.
`
`ARGUMENT
`THE MOTION TO INTERVENE SHOULD BE DENIED AS MOOT
`Proposed intervenors’ motion to intervene to address plaintiffs’ request to expand the Court’s
`May 14 order awarding equitable relief in the form of wage-adjustment payments is now moot. For that
`reason alone, it should be denied.
`As their motion makes clear, proposed intervenors sought to intervene solely for the purpose of
`opposing plaintiffs’ request to expand the Court’s May 14 order by eliminating the December 21, 2020
`to February 23, 2021 date-range limitation. Proposed intervenors’ arguments in support of intervention
`hinged on their opposition to and interest in a potentially expanded wage-adjustment order. See, e.g.,
`ECF No. 70 at 14-15 (arguing that the motion is timely because proposed intervenors only recently
`realized that their interests may not be protected with respect to a potential expansion of the May 14
`order); id. at 16 (arguing that proposed intervenors have a protectable interest because an expanded
`wage-adjustment order would require them to pay more).5 Because the Court has now conclusively
`decided the scope of its wage-adjustment order (and in fact rejected the proposal that proposed
`intervenors would have opposed), the motion to intervene is now moot and should be denied. See Home
`Builders Ass’n of N. California v. U.S. Fish & Wildlife Serv., No. 2:05-cv-00629, 2007 WL 201248, at
`*9 (E.D. Cal. Jan. 24, 2007) (denying motion to intervene where an amendment to a prior order that
`“withdr[ew] any reference to the reasoning that the [propose-intervenors] found objectionable” meant
`that “the [proposed intervenors’] justification for intervening [was] moot”); see also Leisnoi, Inc. v.
`United States, 313 F.3d 1181, 1184-1185 (9th Cir. 2002) (affirming decision to deny previously filed
`motion to intervene as moot after case was subsequently dismissed); Hall v. Cty. of Fresno, No. 1:11-cv-
`2047, 2016 WL 374550, at *11 (E.D. Cal. Feb. 1, 2016) (denying timely motion to intervene as moot
`after the court denied motion to unseal that had been the intervention motion’s focus).6
`
`5 In its June 11, 2021 order, the Court similarly recognized that proposed intervenors were concerned
`only with “plaintiffs’ proposal to remove from the May 14, 2021 order’s clause the limiting language
`‘who submitted job orders and applications for H-2A labor certification between December 21, 2020
`and February 23, 2021.’” ECF No. 74 at 6 n.2.
`6 To the extent proposed intervenors are attempting to relitigate the propriety of the Court’s initial wage-
`adjustment order, those arguments are improper and should be denied as untimely. See infra pp.8-9.
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 7 of 14
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`II.
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`PROPOSED INTERVENORS ARE NOT ENTITLED TO INTERVENE AS OF RIGHT
`Rule 24 of the Federal Rules of Civil Procedure governs motions to intervene either as of right or
`permissively. Under Rule 24(a), to intervene as of right, “(1) the motion [to intervene] must be timely;
`(2) the applicant must claim ‘a significantly protectable’ interest relating to the property or transaction
`which is the subject of the action; (3) the applicant must be so situated that the disposition of the action
`may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s
`interest must be inadequately represented by the parties to the action.” Wilderness Soc’y v. U.S. Forest
`Serv., 630 F.3d 1173, 1177 (9th Cir. 2011). “The party seeking to intervene bears the burden of showing
`that all the requirements for intervention have been met.” United States v. Alisal Water Corp., 370 F.3d
`915, 919 (9th Cir. 2004).
`Proposed intervenors cannot satisfy the requirements to intervene as of right. They have delayed
`well past the point of seeking timely intervention and should not be permitted—at past the eleventh
`hour—to now seek to intervene. Their intervention will unduly delay the adjudication of the parties’
`rights and prevent the Court’s June 11 order from becoming effective. Moreover, proposed intervenors
`have not established that their interests were not adequately represented by defendants.
`A.
`The Motion Is Untimely
`“Timeliness is ‘the threshold requirement’ for intervention as of right.” League of United Latin
`Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). If a court finds that a motion to intervene
`is not timely, it “‘need not reach any of the remaining elements of Rule 24.’” Id. Whether a motion to
`intervene is timely turns 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. In
`considering those factors, courts recognize that “‘any substantial lapse of time weighs heavily against
`intervention.’” Id. Here, all three factors demonstrate that proposed intervenors’ motion is untimely.
`First, the motion to intervene is untimely because it has been filed at a late stage of the
`proceeding—indeed, it has been filed after most issues in this case have been litigated and resolved.
`Proposed intervenors waited over six months—192 total days—after the lawsuit was filed before filing
`their motion. During that time, among other developments, (1) plaintiffs filed their complaint and
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`motion for a preliminary injunction, (2) the preliminary injunction motion was fully briefed, (3) the
`Court held a hearing on the preliminary injunction motion, (4) the Court granted plaintiffs’ preliminary
`injunction motion, (5) the parties filed a joint submission addressing their opposing views on the proper
`parameters of that preliminary injunctive relief, (6) the Court issued a supplemental order regarding
`preliminary injunctive relief, (7) DOL issued a notice announcing the 2021 AEWRs applicable to H-2A
`workers, (8) plaintiffs filed a motion to extend the preliminary injunction to obtain wage-adjustment
`payments for injured farmworkers, which defendants opposed, (9) the Court held two hearings on the
`motion to extend preliminary injunctive relief, (10) the Court granted plaintiffs’ motion for wage-
`adjustment payments, (11) the parties jointly submitted separate proposals to amend the Court’s wage-
`adjustment order, and (12) the parties submitted supplemental briefs in response to the Court’s minute
`order to clarify a proposed amendment to the wage-adjustment order. See supra pp.2-4. At each stage
`of this litigation, proposed intervenors could have moved to intervene, but chose not to. Moreover, at
`each stage, defendants filed oppositions to plaintiffs’ motions and the Court held hearings to consider
`the issues before it. It is thus clear that the Court already “has substantively—and substantially—
`engaged the issues in this case[, which] weighs heavily against allowing intervention as of right under
`Rule 24(a)(2).” Wilson, 131 F.3d at 1303 (finding that issuance of a temporary restraining order and
`preliminary injunction, along with other motions practice, demonstrated that the “stage of proceeding”
`factor weighed against finding intervention proper).
`Second, granting intervention now would be prejudicial to the parties. The prejudice “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.” Smith v.
`L.A. Unified Sch. Dist., 830 F.3d 843, 857 (9th Cir. 2016). Approximately five months have passed
`since the Court issued its preliminary injunction and its supplemental order on injunctive relief. See
`ECF Nos. 37, 39. The proposed intervenors also waited almost five months since DOL issued a formal
`notice to employers that the Court was considering issuing a wage-adjustment order. See U.S. Dep’t of
`Labor, Employment and Training Administration – Announcements (Jan. 15, 2021),
`https://www.dol.gov/agencies/eta/foreign-labor/news. A delay of this length, when proposed
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`intervenors have long known about this issue, as well as the extent to which their interests were
`represented by defendants, is clearly prejudicial. See, e.g., Chevron Envtl. Mgmt. Co. v. Envtl. Prot.
`Corp., 335 F.R.D. 316, 323-328 (E.D. Cal. 2020) (finding that a delay by proposed intervenors of almost
`five months after learning about the litigation supported a finding of prejudice as “plaintiffs would lose
`the time and resources they expended on [the litigation to that point]”).
`The unreasonableness of proposed intervenors’ delay and the substantial prejudice to the parties
`are underscored by the fact that proposed intervenors want to relitigate issues already decided by the
`Court. The Court has now conclusively addressed the proper scope of its wage-adjustment order, see
`ECF No. 74, an issue the parties initially briefed almost three months ago, see ECF Nos. 44, 47, 48.
`Allowing proposed intervenors to relitigate that settled issue—which was the focus of the intervention
`motion, see supra Part I7—would prejudice both parties by requiring duplicative briefing and causing
`further delay before the Court’s June 11 order becomes effective. See, e.g., Sec. & Exch. Comm'n v.
`Whitworth Energy Res. Ltd., 243 F.3d 549, 2000 WL 1770652, at *3 (9th Cir. 2000) (table decision) (“If
`Investors were allowed to intervene, the district court would be forced to relitigate issues, causing
`prejudice to the parties.”); Smith v. Marsh, 194 F.3d 1045, 1051 (9th Cir. 1999) (holding intervention
`would prejudice the parties because “there was a lengthy delay … and many substantive and procedural
`issues had already been settled by the time of the intervention motion”); United States v. Washington, 86
`F.3d 1499, 1506 (9th Cir. 1996) (“If Inner Sound were allowed to intervene to relitigate this issue, Inner
`Sound would certainly upset the ‘delicate balance’ achieved by the district court and prejudice the
`parties by further delay and briefing.”). The prejudice here is particularly acute because the proposed
`intervenors waited until the parties had filed their proposed amendments to the Court’s wage-adjustment
`order—as well as subsequent supplemental briefs responding to the Court’s question about plaintiffs’
`proposed amendment—before seeking to intervene. Indeed, before the intervention motion was filed,
`
`
`7 Proposed intervenors’ motion at times suggests that they would also attempt to relitigate the propriety
`of the Court’s May 14 wage-adjustment order. See, e.g., ECF No. 70 at 6 (suggesting that proposed
`intervenors would like to address whether a wage-adjustment order would “violat[e] [DOL] regulations
`or the APA”). For the same reasons, any attempt to relitigate those issues is improper, and the motion
`should be denied.
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`the Court had expressed that it was already “prepared to issue a final order addressing the parties’
`requests for modification.” ECF No. 66.
`Third, proposed intervenors provide no adequate justification for their delay. Any argument that
`proposed intervenors were not aware that an issue in this litigation might be resolved in a way contrary
`to their interests is unfounded. As discussed, proposed intervenors were well aware of the lawsuit and
`were notified in January that the Court was considering issuing an order related to wage-adjustment
`payments; they thus knew or should have known the risks of not joining in a timely manner.
`Accordingly, they cannot seek to intervene at the last minute to stave off the foreseeable consequences
`of an adverse decision. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978) (“The crux
`of [proposed intervenors’] argument is that they did not know the settlement decree would be to their
`detriment. But surely they knew the risks. To protect their interests, appellants should have joined the
`negotiations before the suit was settled.”); see also Washington, 86 F.3d at 1504 (finding that a motion
`to intervene filed three months after district court issued opinion was untimely where the proposed
`intervenor could not justify the substantial delay in filing the motion when it had long been on notice
`that it might need to intervene to protect its interests).
`Nonetheless, proposed intervenors maintain that their motion is timely because they only became
`aware that defendants were no longer protecting their interests when defendants “failed to challenge this
`Court’s May 14, 2021 order” and “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. 70 at 14. Those arguments are legally and factually unfounded.
`First, it is unclear exactly how defendants (or any other potential party) could have further
`“challenged” the Court’s May 14 order. Defendants fully opposed plaintiffs’ request for equitable relief
`in the form of wage-adjustment payments, see ECF No. 47, but the Court nonetheless decided that such
`payments were warranted under the circumstances for a narrow set of employers, see ECF No. 58. At
`that point, defendants had no further recourse to “challenge” that decision. Proposed intervenors suggest
`that defendants should have either “moved for reconsideration of that Order []or committed to an appeal
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 11 of 14
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`of the Order to the Ninth Circuit.” ECF No. 70 at 4. But defendants could not move for reconsideration
`without grounds for doing so. See Wells Fargo Bank, N.A. v. Mahogany Meadows Ave. Tr., 979 F.3d
`1209, 1218 (9th Cir. 2020) (holding motion for reconsideration “‘may not be used to raise arguments or
`present evidence for the first time when they could reasonably have been raised earlier’”). And that
`defendants have not “committed to an appeal” does not establish that they have failed to “challenge” the
`Court’s May 14 order.
`Second, proposed intervenors are wrong to suggest that defendants somehow changed their
`position in the June 3, 2021 joint status report proposing amendments to the Court’s May 14 order.8 In
`that submission, plaintiffs asked the Court to remove specific language from the May 14 order—which
`would expand its reach to provide relief to more farmworkers—and defendants opposed that requested
`amendment. See ECF No. 64. Significantly, defendants’ opposition focused solely on protecting
`employers’ interests. See id. at 10 (arguing that certain employers “were not on notice that a potential
`backpay award would apply to them”). It defies reality to interpret defendants’ opposition to the
`proposed expansion of the May 14 order as evidence “that the Defendants will not adequately represent
`the interests of the Intervenors.” ECF No. 70 at 14.
`In sum, all three timeliness factors weigh against granting the proposed intervenor’s motion to
`intervene as of right.
`B.
`Proposed Intervenors’ Interests Have Been Adequately Represented
`A “presumption of adequacy of representation arises” “[w]hen an application for intervention
`and an existing party have the same ultimate objective” and “when the government is acting on behalf of
`a constituency that it represents.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). Indeed,
`“[i]n the absence of a ‘very compelling showing to the contrary,’ it will be presumed that [the
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`8 Proposed intervenors also repeatedly suggest that plaintiffs and defendants are somehow in collusion.
`E.g., ECF No. 70 at 6 (“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”); id. at 8
`(referencing “apparent discussions between Plaintiffs and Defendants”); id. (referencing the parties
`“good faith” attempts to “work[] together”). That suggestion is refuted by the adversarial positions and
`filings presented throughout this litigation. And the parties should not be penalized for attempting to
`reach agreed resolutions where possible.
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 12 of 14
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`government] adequately represents its citizens when the applicant shares the same interest.” Id. The
`burden is on the proposed intervenor to provide evidence to rebut that presumption. See Prete v.
`Bradbury, 438 F.3d 949, 956 (9th Cir. 2006). Proposed intervenors have failed to make such a
`compelling showing.
`Proposed intervenors argue only that their interests are “more local and personalized than the
`interest of the Defendants” and that defendants “may want to find an amicable way out of this
`litigation.” But proposed intervenors fail to articulate how or why their narrower interests demonstrate
`that defendants’ interests are not aligned. At most, proposed intervenors have identified a difference of
`opinion in litigation strategy, suggesting that defendants should have done something more in response
`to the Court’s May 14 order. See supra pp.9-10. But “[w]here parties share the same ultimate objective,
`differences in litigation strategy do not normally justify intervention.” Arakaki, 324 F.3d at 1086.
`Moreover, the record demonstrates that defendants have vigorously represented proposed
`intervenors interests throughout the litigation. More precisely, the record reflects that defendants have
`already made the exact arguments that proposed intervenors would likely raise. The motion to
`intervene, and its supporting declarations, reflect that proposed intervenors seek to oppose the now-
`rejected expansion of the wage-adjustment order because employers’ economic expectations and hiring
`decisions would be upset by an expanded order. See ECF No. 70 at 24 (declaration attesting that WGA
`members “acted in reliance on the DOL notice that its members were not required to set aside money for
`the back pay”); id. at 27-28 (similar for NCAE members); id. at 30-31 (similar for a specific employer).
`Defendants made those same arguments in opposition to plaintiffs’ motion for wage-adjustment
`payments, contending that wage-adjustment payments would “disrupt economic expectations and
`reliance on the rates in effect at the time” to the detriment of H-2A employers, and that
`“[r]etrospectively increasing [the cost of labor] would put the growers in a difficult position because
`they are, of course, unable to’ make adjustments ‘to reflect the true cost of labor.’” ECF No. 47 at 13.9
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`9 Defendants also represented proposed intervenors’ interests at earlier stages of the litigation. See, e.g.,
`ECF No. 31 at 24 (defendants arguing in opposition to plaintiffs’ motion for preliminary injunction that
`the wage freeze would “provide[] employers with greater certainty as they attempt to forecast short- and
`long-term labor needs”).
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`Case 1:20-cv-01690-DAD-JLT Document 77 Filed 06/18/21 Page 13 of 14
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`In the June 3 joint status report, defendants likewise argued that expanding the wage-adjustment order
`would be improper because it would “impos[e] a backpay requirement on thousands of employers who
`were not on notice that a backpay order would apply to them.” ECF No. 64 at 11.10 Thus, defendants’
`positions throughout this case—and the Court’s own analysis and decisions—demonstrate that proposed
`intervenors