`Case 1:20-cv-01690-DAD-JLT Document 81 Filed 06/22/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`UNITED FARM WORKERS, et al.,
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`No. 1:20-cv-01690-DAD-JLT
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`Plaintiffs,
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`v.
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`THE UNITED STATES DEPARTMENT
`OF LABOR, et al.,
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`ORDER DENYING PROPOSED
`INTERVENORS’ MOTIONS TO
`INTERVENE AND TO STAY ALL
`PROCEEDINGS
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`Defendants.
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`(Doc. Nos. 69, 70)
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`This matter comes before the court on the motions to stay this action and intervene filed
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`on June 10, 2021 by the National Council of Agricultural Employers and Western Growers
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`Association (collectively, “proposed intervenors”). (Doc. Nos. 69, 70.) A hearing on the motions
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`was held on June 22, 2021. Attorneys Rachel Jacobson, Mark Selwyn, Derek Woodman, and
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`Trent Taylor appeared by video for plaintiffs United Farm Workers and UFW Foundation
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`(collectively, “plaintiffs”); United States Department of Justice Trial Attorney Michael Gaffney
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`appeared by video for defendants the United States Department of Labor (“DOL”) and the
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`Secretary of Labor (collectively, “defendants”), and attorneys Christopher Schulte and Robert
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`Roy appeared by video for proposed intervenors. For the reasons explained below and as stated
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`on the record at the conclusion of the hearing, the motion to intervene is denied and the motion to
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`stay is denied as moot.
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`Case 1:20-cv-01690-DAD-JLT Document 81 Filed 06/22/21 Page 2 of 14
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`BACKGROUND
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`The factual background of this case was set forth in the court’s order granting plaintiffs’
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`motion for a preliminary injunction. (See Doc. No. 37.) That background will not be repeated
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`here, but the facts relevant to the disposition of this motion are discussed below.
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`On December 23, 2020, the court granted plaintiffs’ motion for a preliminary injunction in
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`this action, prohibiting defendants from implementing the final rule published on November 5,
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`2020 and requiring defendants to publish 2021 Adverse Effect Wage Rates (“AEWRs”) in
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`accordance with the existing regulations. (Id. at 39); see also Adverse Effect Wage Rate
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`Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations
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`in the United States, 85 Fed. Reg. 70,445 (Nov. 5, 2020). On January 12, 2021, the court issued a
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`supplemental order directing defendants “to provide notice to all H-2A employers who submit job
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`orders and applications for H-2A labor certification between December 21, 2020 and the
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`publication of the final 2021 AEWRs” and inform them of the potential of backpay claims. (Id. at
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`4.) Defendants issued that court-ordered notice to employers on January 15, 2021. See U.S.
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`Dep’t of Labor, Employment and Training Administration—Announcements (Jan. 15, 2021),
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`https://www.dol.gov/agencies/eta/foreign-labor/news.
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`On February 23, 2021, the DOL’s Employment and Training Administration issued a
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`notice in the Federal Register announcing, as directed by the court, the 2021 AEWRs applicable
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`to H-2A workers and workers in corresponding employment performing agricultural labor or
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`services other than the herding or production of livestock on the range. Labor Certification
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`Process for the Temporary Employment of Aliens in Agriculture in the United States: 2021
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`Adverse Effect Wage Rates for Non-Range Occupations, 86 Fed. Reg. 10,996 (Feb. 23, 2021).
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`The AEWRs set forth in that notice were effective immediately. Id.
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`On March 11, 2021, plaintiffs filed a motion seeking wage adjustment payments for
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`qualifying farmworkers as part of the injunctive relief ordered by the court. (Doc. No. 44 at 9.)
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`Following two hearings, on May 14, 2021, the court granted plaintiffs’ motion, which it construed
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`as a motion seeking an extension of the previously granted preliminary injunctive relief to include
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`an equitable restitution component. (Doc. No. 58.) On June 3, 2021, the parties filed a joint
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`Case 1:20-cv-01690-DAD-JLT Document 81 Filed 06/22/21 Page 3 of 14
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`status report which included two requests for modifications of the court’s May 14, 2021 order.
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`(Doc. No. 64.) On June 11, 2021, the court issued an order amending and clarifying the scope of
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`its May 14, 2021 order. (Doc. No. 74.)
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`On June 10, 2021, as the signed order amending the May 14, 2021 order was being
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`prepared for filing on the court’s docket, proposed intervenors filed the pending motion to
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`intervene and motion to stay all proceedings in this case pending the court’s ruling on their
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`motion to intervene.1 (Doc. Nos. 69, 70.) On June 18, 2021, plaintiffs filed their oppositions to
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`the motions. (Doc. Nos. 77, 78.) On June 21, 2021, defendants filed their opposition to the
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`motions. (Doc. No. 79.)
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`LEGAL STANDARD
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`Intervention as a matter of right is governed by Federal Rule of Civil Procedure 24(a),
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`which provides that “[o]n timely motion, the court must permit anyone to intervene who . . .
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`claims an interest relating to the property or transaction that is the subject of the action, and is so
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`situated that disposing of the action may as a practical matter impair or impede the movant’s
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`ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.
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`Civ. P. 24(a). A party seeking to intervene as a matter of right must satisfy the following four
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`requirements: (1) the applicant has a significant protectable interest relating to the transaction
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`that is the subject of the suit; (2) the disposition of the action may impair or impede the
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`applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing parties
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`may not adequately represent the applicant’s interest. Wilderness Soc’y v. U.S. Forest Serv., 630
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`F.3d 1173, 1177 (9th Cir. 2011); United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir.
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`1 In light of this fact, the court sua sponte granted a limited stay of its June 11, 2021 order,
`staying defendants’ compliance deadlines as set forth in that order until the court had ruled on the
`motion to intervene and lifted the limited stay. (Doc. No. 74 at 7.) The June 11, 2021 order had
`directed defendants to notify state workforce agencies, employers, and the public within fourteen
`days of the court’s order that H-2A employers who submitted job orders or applications for H-2A
`labor certification between December 21, 2020 and February 23, 2021 were required to make
`wage adjustment payments to qualifying H-2A workers and U.S. farmworkers in corresponding
`employment who worked during the period from January 15, 2021 to February 23, 2021 (“the
`Interim Period”) and received an hourly wage below the geographically applicable 2021 AEWR.
`(Id.)
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`2002). Courts generally construe the rule broadly in favor of applicants who seek to intervene.
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`Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006); City of Los Angeles, 288 F.3d at 397. A
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`liberal interpretation of the rule “serves both efficient resolution of issues and broadened access to
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`the courts. By allowing parties with a practical interest in the outcome of a particular case to
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`intervene, we often prevent or simplify future litigation involving related issues[.]” Forest
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`Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 n.8 (9th Cir. 1995) (citations
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`omitted).
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`Rule 24 also allows for permissive intervention. See Fed. R. Civ. P. 24(b)(1)(B) (noting a
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`court may permit a party to intervene who “has a claim or defense that shares with the main
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`action a common question of law or fact”). “[P]ermissive intervention ‘requires (1) an
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`independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and
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`fact between the movant’s claim or defense and the main action.’” Freedom from Religion
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`Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (internal citations omitted).
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`“Permissive intervention is committed to the broad discretion of the district court . . ..” Orange
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`Cty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986).
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`ANALYSIS
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`In their pending motion, the proposed intervenors move to intervene as of right under
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`Federal Rule of Civil Procedure 24(a)(2). (Doc. No. 70 at 2–3.) In the alternative, they seek to
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`intervene permissively under Rule 24(b)(1)(B). (Id. at 21–22.) Specifically, proposed
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`intervenors seek to intervene in order to challenge the validity and enforceability of the limited
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`equitable restitution remedy adopted by the court in granting preliminary injunctive relief to
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`plaintiffs. (Id. at 6.)
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`A.
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`Intervention as of Right
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`Each of the four elements for intervening as a matter of right “must be demonstrated in
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`order to provide a non-party with a right to intervene.” League of United Latin Am. Citizens v.
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`Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). “Failure to satisfy any one of the requirements is
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`fatal to the application, and we need not reach the remaining elements if one of the elements is
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`not satisfied.” Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
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`Case 1:20-cv-01690-DAD-JLT Document 81 Filed 06/22/21 Page 5 of 14
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`Because the court concludes that proposed intervenors have failed to demonstrate both that
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`defendants are inadequately representing their interests in this action and that the pending motion
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`is also timely, only those two elements of intervention as of right will be addressed below.
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`1.
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`Whether the Existing Parties Adequately Represent the Applicant’s Interest
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`To determine whether existing parties are adequately representing a proposed intervenor’s
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`interests, courts consider
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`whether (1) the interest of a present party is such that it will
`undoubtedly make all of a proposed intervenor’s arguments; (2) the
`present party is capable and willing to make such arguments; and (3)
`a proposed intervenor would [not] offer any necessary elements to
`the proceeding that other parties would neglect.
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`Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (internal citation and quotation marks
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`omitted). The proposed intervenors’ burden of proof is minimal and is satisfied if they can
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`“demonstrate that representation of their interests ‘may be’ inadequate.” Id.
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`The first factor, “how the interest compares with the interests of existing parties,” is “[t]he
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`most important factor in determining the adequacy of representation.” Id. However, there is “a
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`presumption that the government will adequately represent a party’s interests.” Low v. Altus Fin.
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`S.A., 44 Fed. App’x 282, 284 (9th Cir. 2002).2 Additionally, “[w]hen an applicant for
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`intervention and an existing party have the same ultimate objective, a presumption of adequacy of
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`representation arises.” Arakaki, 324 F.3d at 1086. “If the applicant’s interest is identical to that
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`of one of the present parties, a compelling showing should be required to demonstrate inadequate
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`representation.” Id. When the parties “share the same ultimate objective, differences in litigation
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`strategy do not normally justify intervention.” Id.
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`Proposed intervenors assert that they do not share the same ultimate objective as
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`defendants because defendants must represent the broad public interest, not just the economic
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`interest of H-2A employers. (Doc. No. 70 at 19) They argue that their interests in (1) potential
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`enforcement of back wage claims, which they alone will bear the burden of paying; (2) other
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`enforcement actions from DOL regarding the court’s orders; and (3) the potential adverse
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`2 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
`36-3(b).
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`precedent the court’s order will create, are narrower and more parochial than the interest of the
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`public at large in seeing that laws are applied properly and consistently. (Id.) Proposed
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`intervenors contend that they first became aware that their interest would no longer be adequately
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`protected when (1) defendants failed to challenge the May 14, 2021 order, in which the court
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`stated that the parties believed “there is nothing more in terms of the record or evidence that the
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`court requires or that would assist the court in rendering a decision on the merits of this action”
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`and suggested that the parties “stipulate to entry of judgment or to otherwise resolve this matter
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`with a request for dismissal,” and (2) on May 18, 2021, when defendants entered a stipulated
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`proposed order evidencing their apparent willingness to craft “proposed revisions to clarify which
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`employers are subject to the Court’s order” as well as craft “proposed revisions with respect to
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`the relevant compliance and enforcement mechanisms.” (Id. at 14.)
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`The court is not persuaded by proposed intervenors’ arguments in this regard. Defendants
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`and proposed intervenors do in fact share the same “ultimate objective” in opposing equitable
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`restitution in the form of wage adjustments. (See Doc. No. 79 at 3.) Moreover, as plaintiffs and
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`defendants correctly point out in their oppositions to the pending motion to intervene, the record
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`in this case establishes that defendants have vigorously represented proposed intervenors’
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`interests throughout this litigation. (See Doc. Nos. 77 at 11–13; 79 at 3–5.) As defendants
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`recount,
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`[i]n 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.
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`(Doc. No. 78 at 3.)
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`Plaintiffs and defendants also accurately assert that defendants have already advanced all
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`of the arguments that proposed intervenors would apparently raise were they allowed to intervene
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`at this late stage of the litigation. Certainly, proposed intervenors have proffered no new or
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`additional arguments that they believe were not advanced by defendants. The motion to intervene
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`and the declarations submitted in support thereof reflect that proposed intervenors merely seek to
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`oppose any expansion of the equitable restitution order because employers’ economic
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`expectations and hiring decisions would be upset by such an expanded order.3 (Doc. No. 70 at
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`24, 27–28, 30–31) (attesting that each organization’s members acted in reliance on defendants’
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`notice that their members were not required to set aside money for wage adjustments). However,
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`that is precisely the argument which counsel for defendants successfully presented in persuading
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`the court to reject plaintiffs’ proposed expansion of the equitable restitution remedy the court had
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`imposed. Defendants argued in opposition to plaintiffs’ motion for equitable relief that wage-
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`adjustment payments would “disrupt economic expectations and reliance on the rates in effect at
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`the time” to the detriment of H-2A employers, and that “[r]etrospectively increasing [the cost of
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`labor] would put the growers in a difficult position because they are, of course, unable to make
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`adjustments ‘to reflect the true cost of labor.’” (Doc. No. 47 at 13.) When counsel for defendants
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`responded at the May 11, 2021 hearing to specific questions posed by the court about how any
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`backpay ordered could be delivered, defense counsel began by reiterating that defendants
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`objected to any equitable restitution involving backpay and made clear that counsel was
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`responding solely within the confines of the court’s question. The undersigned specifically noted
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`defense counsel’s continued objection on the record.
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`Again, proposed intervenors do not point to any argument that they would have made
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`beyond those already pressed by defendants in this action over the last seven months plus.
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`Defendants note that proposed intervenors simply theorize that defendants’ interests may “not
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`3 For this reason, plaintiffs also argue in their opposition that the pending motion to intervene has
`been rendered moot by the court’s June 11, 2021 order. (See Doc. No. 77 at 6) (“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.”). However, proposed intervenors now state that they, as defendants
`did, oppose all aspects of the court’s order requiring even very limited wage adjustments.
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`necessarily coincide” with their own and speculate that defendants “may want to find an amicable
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`way out of this litigation” (Doc. No. 70 at 21), but they do not identify any concrete way in which
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`these possibilities have caused defendants to present anything short of a fulsome opposition to the
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`issuance of an equitable remedy, including an order requiring that employers who had notice of
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`the likelihood of such an award before their hiring decisions were finalized provide backpay for
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`the few weeks in 2021 before the new 2021 AEWRs were issued.4 (Doc. No. 79 at 4.)
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`In sum, the court finds that defendants have from the outset of this litigation shared
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`proposed intervenors’ ultimate objectives. Moreover, defendants and proposed intervenors
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`continue to “share the same ultimate objective,” and their “differences in litigation strategy do not
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`[] justify intervention.” Arakaki, 324 F.3d at 1086. Because proposed intervenors have failed to
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`make the compelling showing required to rebut the presumption that the government defendants
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`have adequately represented their interests in opposing the issuance of an order imposing an
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`equitable restitution remedy involving limited backpay, their motion to intervene as a matter of
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`right will be denied. See Perry, 587 F.3d at 952.
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`4 The court also agrees with defendants that “[p]roposed Intervenors mischaracterize th[e]
`history” of this case. (Id.) Defendants explain that what plaintiffs and defendants ultimately filed
`on June 3, 2021 was (1) a request by plaintiffs to expand the scope of the court’s May 14, 2021
`order and (2) a response by defendants in opposition to plaintiff’s proposal to significantly
`expand the equitable relief granted—an argument that the court fully embraced in declining to
`broaden the equitable restitution remedy to the extent plaintiffs had sought. (Id.) (citing Doc.
`Nos. 64, 74). Defendants refute proposed intervenors’ contention that they “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, 2021 filing, particularly in light of the court ultimately agreeing with
`defendants in rejecting plaintiffs’ request. Indeed, as a result of the June 11, 2021 order
`amending the May 14, 2021 order, the court’s equitable restitution award requires only that a
`modest number of farmworkers be paid what has now been determined to be the appropriate wage
`for the work they performed during the Interim Period. The court ultimately rejected plaintiffs’
`desired scope of equitable restitution and instead found defendants’ arguments to be more
`persuasive on that issue. In striking a balance by compensating farmworkers at the correct rate
`where growers had timely notice of that possibility, while not imposing an unfair hardship on
`growers who had no such notice at the time they applied or contracted for H-2A farmworker, the
`court was persuaded by defendants to grant a significantly narrower equitable restitution award
`than plaintiffs had sought.
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`2.
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`Whether the Pending Motion is Timely
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`The timeliness of a motion to intervene as of right is determined “by the totality of the
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`circumstances facing would-be intervenors, with a focus on three primary factors: (1) the stage of
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`the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3)
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`the reason for and length of the delay.” Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843,
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`854 (9th Cir. 2016) (internal citation omitted). “Timeliness is a flexible concept.” Chevron Env’t
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`Mgmt. Co. v. Env’t Prot. Corp., 335 F.R.D. 316, 322 (E.D. Cal. 2020) (quoting United States v.
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`Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004)). “[T]he inquiry is inherently fact-
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`sensitive . . ..” Id. In considering the facts, “courts should bear in mind that ‘[t]he crucial date for
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`assessing the timeliness of a motion to intervene is when proposed intervenors should have been
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`aware that their interests would not be adequately protected by the existing parties.” Smith, 830
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`F.3d at 854 (internal citation omitted). The court will consider each of these factor in turn.
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`a.
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`The Stage of the Proceeding at Which an Applicant Seeks to Intervene
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`“[I]n analyzing the ‘stage of the proceedings’ factor, the ‘[m]ere lapse of time alone is not
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`determinative.’” Id. (internal citation omitted). “Where a change of circumstances occurs, and
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`that change is the ‘major reason’ for the motion to intervene, the stage of proceedings factor
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`should be analyzed by reference to the change in circumstances, and not the commencement of
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`the litigation.” Id. “The crucial date for assessing the timeliness of a motion to intervene is when
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`proposed intervenors should have been aware that their interests would not be adequately
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`protected by the existing parties.” Chevron, 335 F.R.D. at 322. Because there is a presumption
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`that the government will adequately represent a party’s interest, “a party’s motion to intervene is
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`timely even when intervention is sought at a late stage in the proceeding, as long as the party
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`seeking intervention files an intervention motion in a timely manner once on notice that the
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`government representation is inadequate.” Low, 44 Fed. App’x at 284–28.
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`In this case, proposed intervenors contend that they first became aware that their interest
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`would no longer be adequately protected by defendants between May 14 and May 18, 2021. As
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`described above, it was at that time that proposed intervenors claim that despite the court’s
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`rejection of defendants’ opposition to any equitable relief being granted under the circumstances
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`Case 1:20-cv-01690-DAD-JLT Document 81 Filed 06/22/21 Page 10 of 14
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`of this case, the defendants should have done something more; though they do not suggest any
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`new arguments that they believe should have been advanced.5 In any event, the court has
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`concluded that defendants’ interests did not and have not diverged from proposed intervenors’
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`interests in this litigation. There simply was no changed circumstance or change in defendants’
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`position in May of 2021. The change in circumstance, if any, occurred on January 15, 2021, the
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`moment at which proposed intervenors were put on notice of the potential of limited backpay
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`being ordered in this case in the form of equitable restitution where notice to employers of that
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`possibility had been provided. Yet proposed intervenors did not file their motion to intervene
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`until June 10, 2021, several months after the court had ruled substantively on the issues in this
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`litigation, having granted injunctive relief and already made a merits finding regarding the
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`legality of the final rule which is the subject of this litigation. See League of United Latin
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`American Citizens, 131 F.3d at 1300–03 (“We believe that the fact that the district court has
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`substantively—and substantially—engaged the issues in this case weighs heavily against allowing
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`intervention as of right under Rule 24(a)(2).”)6 Furthermore, as the proposed intervenors point
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`out, the court’s May 14, 2021 order noted that the parties had acknowledged “that there is nothing
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`more in terms of the record or evidence that the court requires or that would assist the court in
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`rendering a decision on the merits of this action.” (Doc. No. 58 at 13 n.5.) In other words, the
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`court’s order granting plaintiffs’ preliminary injunctive relief and the findings therein were akin
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`to a ruling on summary judgment. In short, after over seven months of litigation, the submission
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`of much briefing and the conducting of several hearings, this litigation was for all intents and
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`5 It is unclear to the court just what the proposed intervenors thought defendants should have
`done at that point. Certainly, proposed intervenors have suggested no new arguments that they
`believe should have been advanced. Moreover, the court notes that the motion to intervene was
`not filed until June 10, 2021.
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` Here, just as in League of United Latin American Citizens, the pending motion to intervene
`comes after “the [] court and the original parties . . . covered a lot of legal ground together.” Id.;
`(see also Doc. No. 77 at 7–8) (recounting the stages of litigation in this action).
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`purposes concluded by the time the motion to intervene was filed.7 Thus, the court finds that
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`consideration of the “stage of the proceedings” factor also weighs strongly against the granting of
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`intervention as of right here.8
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`b.
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`The Prejudice to Other Parties
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`The second factor of the timeliness analysis is the prejudice to other parties. Smith, 830
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`F.3d at 854. “[P]rejudice to existing parties is ‘the most important consideration in deciding
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`whether a motion for intervention is untimely.’” Id. at 857 (internal citation omitted). If the
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`proposed intervenors fail “to intervene ‘as soon as [they] know or ha[ve] reason to know that
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`[their] interests might be adversely affected by the outcome of the litigation,’” then “the court
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`must determine ‘how much prejudice would result from the would-be intervenor’s failure . . ..’”
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`Chevron, 335 F.R.D. at 327 (citing Cal. Dept. of Toxic Substances Control v. Commercial Realty
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`Projects, Inc., 309 F.3d 1113, 1120 (9th Cir. 2002); Smith, 830 F.3d at 857).
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`Proposed intervenors argue that only three weeks have passed since they learned that their
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`interests diverged from the interests of defendants. (Doc. No. 70 at 14–15.) As discussed above,
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`however, the court has found that at the very least five months have passed since proposed
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`intervenors should have known their interests might be adversely affected by the outcome of this
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`litigation, because they were put on notice of the potential for an equitable restitution remedy
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`being imposed on January 15, 2021.
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`The court finds that consideration of this factor also weighs against granting intervention
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`as of right in this case. As plaintiffs explain in their opposition to the pending motion, the
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`7 Both proposed intervenors’ motion and defendants’ opposition to the pending motion reference
`this conclusion from the May 11, 2021 hearing. (See Doc. Nos. 70 at 14; 79 at 6.) At the June
`22, 2021 hearing on the pending motion, the court asked again, out of an abundance of caution,
`whether the issues in this case have now been resolved. Plaintiffs’ counsel stated that he agreed
`with that characterization, that there is nothing left to decide in this case, and that this action
`could conclude. Counsel for defendants expressed agreement with this characterization for the
`most part but added that the government recently published an agenda indicating that the DOL is
`planning to undertake a new rulemaking in this context, and that the parties in this case are
`nonetheless planning to work together to bring this action to a conclusion.
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` The court notes that on December 10, 2020, it granted the State of California’s motion for leave
`to file an amicus curiae brief with respect to plaintiffs’ motion for preliminary injunction. (Doc.
`No. 33.) Proposed intervenors made no such motion at any stage of these proceedings.
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`unreasonableness of proposed intervenors’ delay and the substantial prejudice to the parties are
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`underscored by the fact that proposed intervenors simply wish to relitigate issues already decided
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`by this court. (Doc. No. 77 at 9.) Specifically, the proposed intervenors indicate that they wish to
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`challenge the equitable restitution order on the grounds that it violates the DOL’s regulations and
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`the APA. (Id. at 9 n.7.) These are arguments that defendants have made, including in their
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`opposition to the motion for equitable restitution. (See generally Doc. No. 47.) The court has
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`now conclusively addressed whether that remedy is appropriate and its proper scope, issues that
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`the parties initially briefed almost three months ago. (Doc. Nos. 44, 47, 58, 74.) Allowing
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`proposed intervenors to relitigate that issue would obviously result in further delay and briefing,
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`and ultimately prejudice the parties. Marsh, 194 F.3d at 1051 (holding intervention would
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`prejudice the parties because “there was a lengthy delay . . . and many substantive and procedural
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`issues had already been settled by the time of the intervention motion”). Plaintiffs argue that the
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`prejudice here is particularly acute because the proposed intervenors waited until the parties had
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`filed their proposed amendments to the court’s equitable relief order—as well as supplemental
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`briefs responding to the court’s question regarding plaintiffs’ proposed amendment—before
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`seeking to intervene. (Doc. No. 77 at 9.) Indeed, before the intervention motion was filed, the
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`court had expressed that it was already “prepared to issue a final order addressing the parties’
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`requests for modification.” (Id. at 9–10) (citing Doc. No. 66.)
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`In addition, both plaintiffs and defendants have noted that wage adjustments in th