Comité de Apoyo a los Trabajadores Agrícolas v. Perez

148 F. Supp. 3d 361, 2015 WL 8228376
CourtDistrict Court, D. New Jersey
DecidedDecember 7, 2015
DocketCivil No. 15-4014 (RBK/JS)
StatusPublished
Cited by4 cases

This text of 148 F. Supp. 3d 361 (Comité de Apoyo a los Trabajadores Agrícolas v. Perez) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Comité de Apoyo a los Trabajadores Agrícolas v. Perez, 148 F. Supp. 3d 361, 2015 WL 8228376 (D.N.J. 2015).

Opinion

OPINION

KUGLER, United States District Judge:

Plaintiffs Comité de Apoyo a los Traba-jadores Agrícolas (“CATA”), Pineros y Campesinos Unidos del Noroeste (“PCUN”), Northwest Forest Worker Center (“NFWC”), and Antonio Rivera Martinez bring this suit under the Administrative Procedure Act (“APA”) against the following Defendants: Thomas E. Perez, in his official capacity as United States Secretary of Labor; United States Department of Labor; Portia Wu, in her official capacity as Assistant Secretary, Employ^ ment and Training Administration; Jeh Charles Johnson, in his official capacity as United States Secretary of Homeland Security; and León Rodriguez, in his official capacity as Director of the United States Citizenship and Immigration Service. This matter comes before the Court upon the parties’ Cross-Motions for Summary Judgment (Doc. Nos. 21 and 27), pursuant to Federal Rule of Civil Procedure 56. Because Plaintiffs do not meet their burden to raise a genuine issue of material fact as to standing, Defendants’ Motion (Doc. No. 27) is GRANTED and Plaintiffs’ Motion (Doc. No. 21) is DENIED.

I. BACKGROUND

Plaintiffs bring an APA challenge to certain provisions of the Final Rule entitled “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program.” 80 Fed. Reg. 24146 (Apr. 29, 2015) (“2015 Wage Rule”). See Pis.’ Br. at 1; see also Compl. at 1-3 (Doc. No. 1) (filed June 12, 2015). Plaintiffs challenge the following provisions of the 2015 Wage Rule: 20 C.F.R. §§ 655.10(b)(1) — (2), 655.10(f)(l)(i)-(iii), 655.10(f)(4). See Pis.’ Br. at 1-2. Plaintiffs request that this Court vacate and remand the relevant provisions of the 2015 Wage Rule. See Pls.’ Br. at 50. Defendants oppose Plaintiffs’ motion and cross-move for summary judgment, asserting that Plaintiffs lack standing, that Plaintiffs’ claims are not ripe, and that no provision of the 2015 Wage Rule violates the APA. See generally Defs.’ Br.

This case is yet “another step in a long-running controversy concerning the administration of the H-2B program.” Comité de Apoyo a los Trabajadores Agrícolas v. Perez, 774 F.3d 173, 177 (3d Cir.2014) (CATA III). Previous opinions by the Third Circuit and other district courts have detailed the relevant factual background and procedural history. See id.; Comité de Apoyo a los Trabajadores Agrícolas v. Solis, Civ. No. 09-0240, 2010 WL 3431761, at *1-4 (E.D.Pa. Aug. 30, 2010) (CATA I); Comité de Apoyo a los Trabajadores Agrícolas v. Solis, 933 F.Supp.2d 700, 703-09 (E.D.Pa.2013) (CATA II); La. Forestry Ass’n, Inc. v. Solis, 889 F.Supp.2d 711, 715-20 (E.D.Pa.2012), aff’d sub nom. La. Forestry Ass’n Inc. v. Secre[365]*365tary, U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir.2014).

A. The H-2B Program

The H-2B program allows employers in the United States to “arrange for the admission of foreign workers (‘H-2B workers’) into the United States to perform temporary unskilled non-agricultural work.” CATA III, 774 F.3d at 177. The H-2B program “balances employers’ temporary need for unskilled foreign workers against the need to protect United States workers’ employment, salaries, and working conditions.” Id. The United States Department of Labor (“DOL”) and the United States Department of Homeland Security (“DHS”) jointly administer the H-2B program. 20 C.F.R. §§ 655.1, 655.2.

An employer seeking to admit foreign workers (“H-2B workers”) into the United States under the H-2B program must register, obtain a prevailing wage determination (“PWD”), and file an Application for Temporary Employment Certification. See id. § 655.15. To register, an employer must establish that its need for temporary, non-agricultural work is “justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need[.]” Id. § 655.11(a)(3). If an employer’s H-2B Registration is approved, that employer “is authorized for the specified period of up to 3 consecutive years” to file an Application for Temporary Employment Certification. Id. § 655.12(a).

Before filing an Application for Temporary Employment Certification, a registered employer must receive a PWD from the National Prevailing Wage Center (“NPWC”) Id. §§ 655.5, 655.10(c). Under the H-2B program, an employer must pay at least the PWD or the Federal, State, or local minimum wage, whichever wage is highest. Id. § 655.10(a). Plaintiffs challenge the regulations-that govern how the NPWC determines the prevailing wage.

B. Prevailing Wage Determinations

Section 655.10(b) governs how the NPWC determines the prevailing wage. Section 655.10(b)(1) provides that where a job opportunity is covered by a collective bargaining agreement (“CBA”), the CBA wage is the prevailing wage. Section 655.10(b)(2) provides that, in the absence of á CBA wage, the prevailing wage shall be determined by the Bureau of Labor Statistics (“BLS”) Occupational Employment Statistics Survey (“OES”), “unless the employer provides , a survey acceptable” under 20 C.F.R. § .655.10(f).

Section 655.10(f)(1) provides that, in the absence of a CBA wage rate, the NPWC will consider an employer-provided survey in determining the prevailing wage “only if the employer submission demonstrates that the survey falls into one of the ... categories” outlined in Section 655.10(f)(l)(i) through (iii). Section 655.10(f)(l)(i) allows the NPWC to consider an employer-provided survey if “[t]he survey was independently conducted and issued by a state, including any state agency, state college, or state university!)]” Section 655.10(f)(l)(ii) allows the NPWC to consider an employer-provided survey “submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC[.]” Section 655.10(f)(l)(iii) allows the NPWC- to consider an employer-provided survey if “[t]he job opportunity is not included within an occupational classification of the SOC system; or [t]he job opportunity is within an occupation classification of the SOC system designated as an ‘all other’ classification.”1

[366]*366Section 655.10(f)(4) provides that, where an employer submits a permissible category of survey, “the employer must submit ... specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey.” The employer must also provide certain attestations, as outlined in Section 655.10(f)(4)(i) through (v).

C. Standing

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