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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 1 of 8
`
`BRIAN D. NETTER
`Deputy Assistant Attorney General
`BRAD P. ROSENBERG
`Assistant Branch Director
`MICHAEL J. GAFFNEY (D.C. Bar No. 1048531)
`Trial Attorney
`United States Department of Justice
`Civil Division, Federal Programs Branch
`1100 L St. NW
`Washington, DC 20005
`Tel: (202) 514-2356
`Fax: (202) 616-8470
`Email: Michael.J.Gaffney@usdoj.gov
`
`
`Attorneys for Defendants
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF CALIFORNIA
`
`FRESNO DIVISION
`
`
`
`Case No. 1:20-CV-01690-DAD-JLT
`
`DEFENDANTS’ OPPOSITION TO MOTION
`TO INTERVENE (ECF 70)
`
`
`
`
`UNITED FARM WORKERS, et al.,
`
`
`
`
`
`
`
`Plaintiffs,
`
` v.
`
`THE UNITED STATES DEPARTMENT OF
`LABOR, et al.,
`
`
`
`
`
`
`
`Defendants.
`
`Defendants, the U.S. Department of Labor and Secretary Walsh in his official capacity, oppose the
`intervention motion filed by the National Council of Agricultural Employers and Western Growers
`Association (collectively, “Proposed Intervenors”). See Mot. to Intervene, ECF 70 (“Motion”). Proposed
`Intervenors do not meet the requirements for intervention as of right, see Fed. R. Civ. P. 24(a)(2), or the
`requirements for permissive intervention, see Fed. R. Civ. P. 24(b). Accordingly, the Motion should be
`denied.
`
`BACKGROUND
`On December 23, 2020, the Court granted Plaintiffs’ motion for a preliminary injunction. United
`Farm Workers v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. Dec. 23, 2020), ECF 37. On January 12,
`
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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 2 of 8
`
`2021, the Court issued a supplemental order regarding preliminary injunctive relief. See United Farm
`Workers v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. Jan. 12, 2021), ECF 39. In that supplemental order,
`the Court “reserve[d] the issue of whether any award of backpay is warranted based upon the difference
`between the 2020 AEWRs and the final 2021 AEWRs, if any.” ECF 39 at 2-3. 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.” ECF 39 at 3. Defendants published such notice on January 15,
`2021.1 DOL explained that the court had “reserved decision on whether an award of backpay is warranted
`based on the difference, if any, between the 2020 AEWRs and the final 2021 AEWRs,” providing notice
`“to all employers who submit job orders and applications under the H-2A program between December 21,
`2020, and the publication of 2021 AEWRs in the Federal Register, that affected H-2A workers may have
`a potential claim for backpay.” Id.
`On March 11, 2021, Plaintiffs filed a motion for backpay. ECF 44. Defendants opposed the
`issuance of a backpay award. ECF 47. The Court heard argument on Plaintiffs’ motion on April 6, 2021,
`ECF 51, and in a subsequent hearing on May 11, 2021, ECF 57. On May 14, 2021, the Court granted
`Plaintiffs’ motion in part. United Farm Workers v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. May 14,
`2021), ECF 58. The Court’s May 14 order applied to approximately 72 employers. See Pasternak Decl.
`¶ 9, ECF 64-1. On June 3, 2021, Plaintiffs requested that the Court’s May 14 order be expanded to apply
`to additional employers; Defendants opposed Plaintiffs’ proposed expansion. ECF 64.
`On June 10, 2021—five months after DOL alerted employers that “workers may have a potential
`claim” for backpay and three months after Plaintiffs filed their motion seeking a backpay order—Proposed
`Intervenors filed their Motion. ECF 70. On June 11, 2021, the Court issued a revised backpay order,
`moderately expanding the scope of the Court’s May 14 order. United Farm Workers v. Dep’t of Labor,
`No. 20-cv-1690 (E.D. Cal. June 11, 2021), ECF 74.
`
`
`1 OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for
`Non-Range Occupations Final Rule; Compliance with District Court Order (January 15, 2021),
`https://www.dol.gov/agencies/eta/foreign-labor/news.
`
`
`
`2
`
`

`

`
`
`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 3 of 8
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`I.
`
`ARGUMENT
`The Proposed Intervenors Do Not Meet the Requirements for Intervention as of Right.
`Proposed Intervenors cannot carry their burden of establishing all four criteria required to intervene
`as a matter of right under Federal Rule of Civil Procedure 24(a)(2). See Arakaki v. Cayetano, 324 F.3d
`1078, 1083 (9th Cir. 2003) (proposed intervenor must (1) file timely motion, (2) have a significantly
`protectable interest in the action, (3) show that such interest would be impaired absent intervention, and
`(4) establish that existing parties do not adequately represent such interest). “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) (emphasis in original). “Failure to satisfy
`any one of the[se] requirements is fatal to the application.” Perry v. Proposition 8 Official Proponents,
`587 F.3d 947, 950 (9th Cir. 2009).
`First, Proposed Intervenors fail to make the “compelling showing” required to rebut the
`presumption that Defendants adequately represent Proposed Intervenors’ interests. Id. at 950-51; see also
`Arakaki, 324 F.3d at 1086 (presumption of adequacy is particularly strong when the government is a
`party). Defendants and Proposed Intervenors share the same “ultimate objective” in opposing the issuance
`of a backpay order, and Defendants have adequately represented that interest throughout this litigation.
`As the Court stated during the June 15 status conference, ECF 76, Defendants have vigorously
`opposed a backpay order at every stage of these proceedings. In their opposition to Plaintiffs’ motion for
`backpay, Defendants disputed Plaintiffs’ contention that the 2020 AEWRs were no longer valid as of
`January 1, 2021. ECF 47 at 2-4. Defendants argued that DOL therefore lacked the authority to
`retroactively apply the 2021 AEWRs. Id. at 4-5. Defendants also argued that the APA did not empower
`the Court to grant such a remedy. Id. at 5-6. Defendants asserted that, even if the Court had the power to
`issue a backpay award in certain circumstances, the issuance of such an award here would be
`unprecedented, unsupported by the cases cited by Plaintiffs. Id. at 6-10. When Plaintiffs sought to expand
`the Court’s May 14 order, see ECF 64 at 2-8, Defendants opposed that request too, see id. at 8-10.
`Specifically, Defendants argued that “[e]xpanding the Court’s May 14 order would result in imposing a
`backpay requirement on thousands of employers”—like those allegedly represented by Proposed
`Intervenors—“who were not on notice that a backpay order would apply to them.” Id. at 10.
`
`
`
`3
`
`

`

`
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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 4 of 8
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`Proposed Intervenors mischaracterize this history. They say that a May 18 stipulation and
`proposed order, which served to extend the deadline for Defendants to comply with the Court’s May 14
`order—an extension Proposed Intervenors presumably supported—demonstrated that Defendants’ and
`Proposed Intervenors’ interests had become “newly-divergent.” ECF 70 at 14. Specifically, Proposed
`Intervenors point to language in that stipulation in which the parties informed the Court that they were
`“working together in good faith to propose limited clarifying revisions to certain aspects of the Court’s
`order.”2 ECF 60 at 2. But that good faith effort to limit the number of disputes requiring resolution by
`the Court is, of course, only part of the story, and Proposed Intervenors’ narrative omits the final chapter.
`As described above, what the parties ultimately filed on June 3 was a request by Plaintiffs to expand the
`scope of the Court’s May 14 order and a response by Defendants in opposition to that significant
`expansion—an argument that the Court embraced in declining to broaden the Court’s backpay order to
`the extent that Plaintiffs had sought. See ECF 64 (presenting the parties’ opposing positions on
`expansion); ECF 74 (rejecting Plaintiffs’ proposed expansion). It is not clear how, as Proposed
`Intervenors allege, Defendants “again . . . fail[ed] to adequately represent the interest of the Intervenors
`individually and as a whole class of H-2A employers” in this June 3 filing. That contention rings
`particularly hollow given that the Court agreed with Defendants not to significantly expand the May 14
`order. See ECF 74.
`Indeed, nowhere in Proposed Intervenors’ Motion do they point to any argument that they would
`have made beyond those already pressed by Defendants. Proposed Intervenors theorize that Defendants’
`interests may “not necessarily coincide” with their own and speculate that Defendants “may want to find
`an amicable way out of this litigation,” ECF 70 at 21, but they do not identify any concrete way in which
`these possibilities have caused Defendants to present anything short of a fulsome opposition to the
`issuance of a backpay order. Because Defendants have made arguments in defense of Proposed
`
`
`2 Proposed Intervenors’ argument appears to be that any attempted cooperation between two adverse
`parties demonstrates inadequate representation and justifies third-party intervention. That is incorrect.
`Decisions about whether to confer in good faith with opposing counsel are choices of litigation strategy,
`and “differences in strategy . . . are not enough to justify intervention as a matter of right.” United States
`v. City of Los Angeles, 288 F.3d 391, 402–03 (9th Cir. 2002); see also Arakaki, 324 F.3d at 1086
`(“Where parties share the same ultimate objective, differences in litigation strategy do not normally
`justify intervention.”).
`
`
`
`4
`
`

`

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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 5 of 8
`
`Intervenors’ interests throughout this litigation, Proposed Intervenors have failed to make the compelling
`showing required to rebut the presumption that Defendants have adequately represented their interests in
`opposing the issuance of a backpay order. See Perry, 587 F.3d at 952.
`Second, Proposed Intervenors have not filed a timely motion. “Courts weigh three factors in
`determining whether a motion to intervene is timely: (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.” Alisal
`Water Corp., 370 F.3d at 921 (cleaned up).
`Proposed Intervenors explain why they are intervening for the narrow purpose of opposing a
`backpay award, as opposed to intervening to defend the underlying rule. See ECF 70 at 6; see also Alisal
`Water Corp., 370 F.3d at 921 (“a party’s interest in a specific phase of a proceeding may support
`intervention at that particular stage of the lawsuit”). But they do not provide any compelling reason for
`why they waited so long to participate in this stage of the litigation.
`The possibility of a backpay award has been apparent for five months. On January 12, 2021, the
`Court issued an order stating that it was reserving the “issue of whether any award of backpay is
`warranted.” ECF 39 at 2. The Court directed Defendants to provide notice of that possibility to employers,
`which it did on January 15, 2021.3 That possibility became more likely three months ago, on March 11,
`2021, when Plaintiffs filed a motion seeking an order requiring DOL to inform employers that they must
`remit backpay and certify compliance with this backpay requirement. ECF 44. Two months ago, on April
`6, 2021, the Court heard argument on Plaintiffs’ motion. ECF 51. On May 11, 2021, the Court held a
`subsequent hearing on the motion. ECF 57. And, over one month ago, on May 14, 2021, the Court granted
`Plaintiffs’ motion in part. ECF 58.
`Throughout these five months, Proposed Intervenors have remained on the sidelines. Proposed
`Intervenors attempt to excuse their recent interest in this phase of the litigation by pointing to two
`developments, both from mid-May. ECF 70 at 14. Neither justifies their late-stage intervention.
`
`
`3 OFLC Announces Updates to Implementation of the H-2A Adverse Effect Wage Rate Methodology for
`Non-Range Occupations Final Rule; Compliance with District Court Order (January 15, 2021),
`https://www.dol.gov/agencies/eta/foreign-labor/news.
`
`
`
`5
`
`

`

`
`
`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 6 of 8
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`Proposed Intervenors first fault Defendants for “fail[ing] to challenge” a footnote in the May 14
`order in which the Court wrote that during “the May 11, 2021 hearing, the parties stated that 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.” ECF 58 at 13 n.5. Putting aside whether this statement
`accurately represents the parties’ statements at the May 11 hearing, it is not clear what aspect of this
`apparent summation could have been challenged or by what means. In any event, the Court’s statement
`has no bearing on the backpay order. And it is that order alone that forms the basis for Proposed
`Intervenors’ motion. See ECF 70 at 6.
`Proposed Intervenors next assert that they “became aware that their interest would no longer be
`protected by Defendants when” the parties filed a stipulation to extend Deadlines’ deadline to comply
`with the May 14 order. Id. at 14. In that stipulation, the parties informed the Court that they were
`conferring in good faith and expected to propose clarifying revisions to the Court’s May 14 order. ECF
`60 at 2. As discussed above, what the parties ultimately filed on June 3—a week before Proposed
`Intervenors filed their Motion—was a joint status report in which Defendants opposed Plaintiffs’ request
`to significantly expand the backpay order on the ground that employers, including presumably those
`represented by Proposed Intervenors, were not adequately on notice of a broadened backpay remedy. ECF
`64 at 8-10. So while courts, in assessing the timeliness of an intervention motion, “focus on the date the
`person attempting to intervene should have been aware his interest[s] would no longer be protected
`adequately by the parties,” Chamness v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013), that date has not yet
`arrived—and there is no indication that it will. Instead, as discussed above, Defendants continue to
`adequately represent Proposed Intervenors’ interests in opposing both the issuance and expansion of a
`backpay award.4
`II.
`The Proposed Intervenors Do Not Meet the Requirements for Permissive Intervention.
`An applicant for permissive intervention under Rule 24(b)(1)(B) must demonstrate “(1) an
`independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact
`
`
`4 Defendants do not concede that the Proposed Intervenors satisfy the other two requirements for
`intervention as of right, but limit their arguments in this filing to the issue of adequate representation and
`timeliness because the pending Rule 24(a)(2) motion can and should be denied on these bases alone.
`
`
`
`6
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`

`

`
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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 7 of 8
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`between the [applicant’s] claim or defense and the main action.” Freedom from Religion Found., Inc. v.
`Geithner, 644 F.3d 836, 843 (9th Cir. 2011). Permissive intervention “is committed to the broad discretion
`of the district court.” Orange Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986). Thus, even if an applicant
`satisfies the three threshold requirements, the court still may deny permissive intervention. Donnelly v.
`Glickman, 159 F.3d 405, 412 (9th Cir. 1998). In exercising its discretion, the court may consider, among
`other things, “the nature and extent of the [proposed intervenor’s] interest” and “whether the [proposed
`intervenor’s] interests are adequately represented by other parties.” Spangler v. Pasadena City Bd. of
`Educ., 552 F.2d 1326, 1329 (9th Cir. 1977).
`Proposed Intervenors fail to demonstrate the requirements of permissive intervention. As for
`timeliness, courts “consider precisely the same three factors—the stage of the proceedings, the prejudice
`to existing parties, and the length of and reason for the delay—that [courts consider] in determining
`timeliness under Rule 24(a)(2).” League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308
`(9th Cir. 1997). “In the context of permissive intervention, however, [courts] analyze the timeliness
`element more strictly than [they] do with intervention as of right.” Id. Accordingly, for the same reasons
`stated above, Proposed Intervenors’ Motion is untimely. Furthermore, and also as described above, the
`Court should exercise its discretion to deny Proposed Intervenors’ Motion because Defendants continue
`to adequately represent Proposed Intervenors’ interests, having opposed both the issuance and expansion
`of a backpay order throughout these proceedings.
`CONCLUSION
`For the foregoing reasons, the Court should deny Proposed Intervenors’ Motion.
`
`Dated: June 21, 2021
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BRIAN D. NETTER
`Deputy Assistant Attorney General
`
`BRAD P. ROSENBERG
`Assistant Branch Director
`
`/s/ Michael J. Gaffney
`MICHAEL J. GAFFNEY (D.C. Bar No. 1048531)
`Trial Attorney
`United States Department of Justice
`
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`By:
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`7
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`Case 1:20-cv-01690-DAD-JLT Document 79 Filed 06/21/21 Page 8 of 8
`
`Civil Division, Federal Programs Branch
`1100 L St. NW
`Washington, DC 20005
`Tel: (202) 514-2356
`Fax: (202) 616-8470
`Email: Michael.J.Gaffney@usdoj.gov
`
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`Attorneys for Defendants
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`8
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`

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