United Farm Workers v. The United States Department of Labor

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED FARM WORKERS, et al., No. 1:20-cv-01690-DAD-JLT 12 Plaintiffs, 13 v. ORDER GRANTING PLAINTIFFS’ MOTION SEEKING AN EXTENSION OF THE 14 THE UNITED STATES DEPARTMENT COURT’S PREVIOUSLY GRANTED OF LABOR, et al., PRELIMINARY INJUNCTIVE RELIEF IN 15 THE FORM OF EQUITABLE RESTITUTION Defendants. 16 (Doc. No. 44)

17 18 19 This matter came before the court on April 6, 2012 for hearing on the motion to enforce 20 compliance with the court’s preliminary injunction brought on behalf of plaintiffs United Farm 21 Workers and UFW Foundation (collectively, “plaintiffs”).1 (Doc. No. 44.) Attorneys Bruce 22 Goldstein, Rachel Jacobson, Mark Selwyn, Nicholas Werle, and Trent Taylor appeared by video 23 for plaintiffs, and United States Department of Justice Trial Attorney Michael Gaffney appeared 24 by video for defendants the United States Department of Labor (“DOL”) and the Secretary of 25 Labor (collectively, “defendants”). The court will construe plaintiffs’ filing as a motion seeking 26 ///// 27 1 On May 11, 2021, the court held a second hearing on this motion with all counsel appearing 28 telephonically. 1 an extension of the previously granted preliminary injunctive relief in the form of equitable 2 restitution. For the reasons explained below, the court will grant plaintiffs’ pending motion. 3 BACKGROUND 4 The factual background of this case was set forth in the court’s order granting plaintiffs’ 5 motion for a preliminary injunction. (See Doc. No. 37.) That background will not be repeated 6 here in its entirety. Only those facts relevant to the disposition of this motion will be discussed 7 below. 8 On December 23, 2020, the court granted plaintiffs’ motion for a preliminary injunction. 9 (Doc. No. 37.) Therein, the court prohibited defendants from implementing the final rule 10 published on November 5, 2020. (Id. at 39); see also Adverse Effect Wage Rate Methodology for 11 the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United 12 States, 85 Fed. Reg. 70,445 (Nov. 5, 2020) (“the AEWR final rule”). Defendants were ordered to 13 operate under the last uncontested status of the Adverse Effect Wage Rates (“AEWR”) 14 calculation methodology. (Doc. No. 37 at 39); see also Temporary Agricultural Employment of 15 H-2A Aliens in the United States, 75 Fed. Reg. 6,884 (Feb. 12, 2010) (“the 2010 rule”). The 16 parties were further directed to meet and confer to submit a proposed order that included 17 deadlines by which defendants would set the 2021 AEWRs in accordance with the court’s order 18 and with all other legal requirements. (Doc. No. 37 at 39.) 19 On January 6, 2021, the parties submitted a joint status report stating that they had met 20 and conferred in accordance with the court’s December 23, 2020 order. (Doc. No. 38 at ¶ 6–7.) 21 After exchanging proposals and counterproposals, however, the parties failed to reach an 22 agreement as to the language that the court should employ in granting plaintiffs’ requested relief. 23 (Id. at ¶ 7.) Ultimately, the parties agreed to submit separate proposals for the court’s 24 consideration. (Id.) 25 On January 12, 2021, after reviewing those proposals, the court issued a supplemental 26 order regarding the preliminary injunctive relief granted in this action. (Doc. No. 39.) Therein, 27 the court “reserve[d] the issue of whether any award of backpay is warranted based upon the 28 difference between the 2020 AEWRs and the final 2021 AEWRs, if any, until a final ruling on the 1 merits of plaintiffs’ claims.” (Id. at 2–3.) The court also directed defendants to (1) publish final 2 2021 AEWRs in the Federal Register on or before February 25, 2021 using the methodology set 3 forth in the 2010 rule; (2) make effective the 2021 AEWRs upon their publication in the Federal 4 Register; (3) notify state workforce agencies, employers, and the public by January 18, 2021 that 5 the 2020 AEWRs would remain in effect during the interim period between December 24, 2020 6 and publication of the final 2021 AEWRs; and (4) provide notice to all H-2A employers who 7 submitted job orders and applications for H-2A labor certification between December 21, 2020 8 and the publication of the final 2021 AEWRs, informing them that the potential backpay claims 9 of affected H-2A workers were the subject of ongoing litigation in this action. (Id. at 3–4.) 10 On February 12, 2021, the United States Department of Agriculture published the Farm 11 Labor Report (“FLR”) in accordance with this court’s preliminary injunction in United Farm 12 Workers v. Perdue, No. 1:20-cv-01452-DAD-JLT, 2020 WL 6318432 (E.D. Cal. Oct. 28, 2020). 13 (See Doc. No. 44 at 7 n.1.) The FLR, which synthesized the findings of the Farm Labor Survey 14 (“FLS”) revealed that the gross wage rate for field and livestock workers during the October 2020 15 reference week had increased six percent from the previous year. (Id. at 7.) Additionally, the 16 annual average gross wage for field and livestock workers—the figure that determines the 2021 17 AEWRs under the DOL’s existing regulations—rose approximately five percent to $14.62. (Id.) 18 Accordingly, on February 23, 2021, the DOL published the 2021 AEWRs in compliance with the 19 court’s January 12, 2021 supplemental order granting preliminary injunctive relief in this case. 20 (Id.); see also Labor Certification Process for the Temporary Employment of Aliens in 21 Agriculture in the United States: 2021 Adverse Effect Wage Rates for Non-Range Occupations, 22 86 Fed. Reg. 10,996 (Feb. 23, 2021). The 2020 AEWRs therefore continued to govern from 23 January 1, 2021 to February 23, 2021 (“the Interim Period”) only because the 2021 AEWRs were 24 not published until February 23, 2021 in compliance with this court’s order. 25 On March 11, 2021, plaintiffs filed the pending motion, styled as a motion to enforce 26 compliance with the court’s preliminary injunction. (Doc. No. 44.) Specifically, plaintiffs seek 27 an order from this court directing defendants “to comply with the preliminary injunction by 28 immediately directing H-2A employers to remit wage adjustments to qualifying farmworkers.” 1 (Doc. No. 44 at 9.) On March 23, 2021, defendants filed an opposition to the motion, and 2 plaintiffs replied thereto on March 26, 2021. (Doc. Nos. 47, 48.) 3 ANALYSIS 4 As an initial matter, the court observes that the pending motion is not a true motion to 5 enforce compliance with this court’s preliminary injunction. Indicative of this is the absence of a 6 request to hold defendants in civil contempt for violating any of the preliminary injunction’s 7 directives.2 Rather, as effectively conceded at the hearings on the motion, plaintiffs are actually 8 requesting an extension of the relief granted in the court’s December 23, 2020 and January 12, 9 2021 preliminary injunction orders. Accordingly, the court will construe plaintiffs’ filing as a 10 motion for further injunctive relief and specifically for an order requiring equitable restitution. 11 When the court inquired as to the relevant legal standard governing their pending motion, 12 plaintiffs pointed to the framework established in Frederick County Fruit Growers Association v. 13 McLaughlin, 703 F. Supp. 1021, 1024 (D.D.C. 1989) (“Frederick County I”), aff’d sub nom. 14 Frederick Cnty. Fruit Growers Ass’n, Inc. v. Martin, 968 F.2d 1265 (D.C. Cir. 1992) (“Frederick 15 County II”). That case too involved an Administrative Procedure Act (“APA”) challenge of a 16 DOL rule affecting wage rates for migrant farmworkers. After growers underpaid the 17 farmworkers for a period of time pursuant to the DOL’s invalid rule, the court in Frederick

18 2 “[C]ourts have inherent power to enforce compliance with their lawful orders through civil 19 contempt.” Spallone v. United States, 493 U.S. 265, 276 (1990) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)). “A party may be held in civil contempt where it ‘fail [ed] to 20 take all reasonable steps within the party’s power to comply [with a specific and definite court order].’” Fed. Trade Comm’n v. Productive Mktg., Inc., 136 F. Supp. 2d 1096, 1107 (C.D. Cal. 21 2001) (quoting In re Dual–Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695 (9th Cir.1993)). “The party alleging civil contempt must demonstrate that the alleged contemnor 22 violated the court’s order by ‘clear and convincing evidence,’ not merely a preponderance of the 23 evidence.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). Here, however, defendants have complied with each of the specific directives set forth in 24 this court’s January 12, 2021 supplemental order, and it appears that there are no additional directives for which the court could enforce compliance. (See Doc. No. 44 at 11–12) (explaining 25 that the DOL put employers on notice, as required by the court’s January 12, 2021 supplemental order); 86 Fed. Reg. 10,996 (publishing and giving effect to the 2021 AEWRs); W. Knight Foster 26 P’ship v. Saratoga Data Sys., Inc., No. 16-cv-02406-PJH, 2018 WL 1000373, at *2 (N.D. Cal. 27 Feb. 21, 2018) (“The court does not find “that any remedy is warranted under the preliminary injunction,” because defendants did comply with the preliminary injunction and “plaintiff[s] 28 cannot [seek this relief] through the present motion to enforce the preliminary injunction.”). 1 County I found that equitable restitution required the growers to pay farmworker’s backpay. Id. 2 at 1028–29. In making this determination, the court in Frederick County I relied on 3 [t]he legal principle . . . that when funds have been either paid or withheld pursuant to an invalid administrative edict, the proper 4 remedy is equitable restitution. However, because the restitutionary remedy is a matter of equity, reimbursement of funds will be required 5 only to the extent that justice between the parties requires. Equity will require such a result only when the money was obtained in such 6 circumstances that the possessor will give offense to equity and good conscience if permitted to retain it. 7 8 Id. at 1029 (emphasis added) (internal citations and quotation marks omitted). 9 The court finds this framework to be persuasive here, particularly in light of the shared H- 10 2A context. “The district court has broad latitude in fashioning equitable relief when necessary to 11 remedy an established wrong.” Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 986 (9th Cir. 12 1994); see also Frederick Cnty. II, 968 F.2d at 1272. That principle applies when an agency fails 13 to act pursuant to its governing statute’s provisions. See id. (“To limit relief . . . would unduly 14 interfere with the statutory scheme established by Congress.”); Democratic Cent. Comm. of D.C. 15 v. Washington Metro. Area Transit Comm’n, 485 F.2d 786, 824–25 (D.C. Cir. 1973) (When “a 16 party against whom an erroneous judgment or decree has been carried into effect is entitled, in the 17 event of a reversal, to be restored by his adversary to that which he has lost thereby. This 18 principle . . . is no less applicable to erroneous orders of an administrative agency than to those of 19 a court.”) (internal quotation marks omitted). 20 In applying this framework, the court must first determine whether “funds have been 21 either paid or withheld pursuant to an invalid administrative edict.” Frederick County I, 703 F. 22 Supp. at 1029. The question is therefore whether the Interim Period constitutes an “invalid 23 administrative edict.” In their motion, plaintiffs argue that the DOL’s February 23, 2021 24 publication of the 2021 AEWRs was nearly two months late under DOL’s own regulations, and 25 the court’s injunction did not eliminate DOL’s obligation to publish new AEWRs during calendar 26 year 2020 but rather sought to enforce that obligation. (Doc. No. 44 at 10–11.) They argue that 27 the 2020 AEWRs became invalid, even if provisionally kept in force and effect by the court, as of 28 January 1, 2021. (Id. at 11.) Plaintiffs acknowledge that the court’s January 12, 2021 1 supplemental order reserved the backpay issue until final judgment, but also assert that the issue 2 of backpay is now ripe for adjudication. (Id.) According to plaintiffs, it is now clear that the 3 2021 AEWRs represent a significant pay increase for farmworkers nationwide. (Id. at 9.) 4 Plaintiffs note that the AEWRs rose even faster in several major agricultural states, including 5 California, where the 2021 AEWR is more than 8.6 percent higher than the 2020 AEWR. (Id. at 6 10) (citing 86 Fed. Reg. at 10,996). Plaintiffs contend that this growth in the AEWRs should 7 have automatically and immediately resulted in raises for H-2A workers and U.S. farmworkers in 8 corresponding employment at H-2A program employers. (Id.) They note that the DOL’s 9 regulations do not permit H-2A employers to pay H-2A workers or U.S. farmworkers in 10 corresponding employment wages below the applicable AEWR in effect at the time the work is 11 performed. (Id.) (citing 20 C.F.R. § 655.122(l)). In sum, plaintiffs argue that H-2A workers 12 should not be underpaid due to the DOL’s invalid administrative action or inaction. (Id.) 13 The court agrees. When the court enjoined defendants from giving effect to the AEWR 14 final rule, it noted that the 2021 AEWRs not being timely published by December 31, 2020 was 15 “a predicament that the government itself has created.” (Doc. No. 37 at 32.) As plaintiffs’ put it, 16 “[h]ad DOL had access in December to the necessary FLS data on 2020 agricultural wages, it 17 undoubtedly would have been able to publish 2021 AEWRs by the end of the calendar year, as 18 required by 20 C.F.R. § 655.120(b)(2).” (Doc. No. 44 at 11.) Moreover, absent this court’s 19 preliminary injunction extending the compliance deadlines, defendants would have been in 20 violation of the DOL’s regulations. Indeed, defendants effectively conceded as much at the time 21 the preliminary injunction was issued. (Doc. No. 31 at 30) (“[I]f the Rule is vacated . . . DOL 22 will set the 2021 AEWRs using the 2020 rates, or, if that is not possible given DOL’s current 23 regulations, DOL will be forced to assess operating the H-2A Program without an AEWR . . . .”). 24 The court’s equitable extension of the DOL’s deadline was intended to facilitate 25 defendants’ compliance with the court’s preliminary injunction and other legal requirements. 26 Defendants assert that the court’s January 12, 2021 supplemental order “confirmed that the 2020 27 AEWRs remained ‘in effect during the interim period between December 24, 2020 and 28 publication of the final 2021 AEWRs.’” (Doc. No. 47 at 5) (citing Doc. No. 39 at 3). However, 1 the court ordered the publication of the final 2021 AEWRs and the extension of the 2020 AEWRs 2 pursuant to its power under the APA “to compel ‘agency action unlawfully withheld or 3 unreasonably delayed.’” Indep. Min. Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (citing 5 4 U.S.C. § 706(1)). By that time, defendants had unreasonably delayed the publication of the 2021 5 AEWRs. Defendants cannot now take shelter under the court’s emergency relief to assert that a 6 valid administrative edict existed during the Interim Period. (See Doc. No. 47 at 10.) Moreover, 7 as plaintiffs noted at the hearing on the pending motion, a finding that the Interim Period was a 8 valid scheme is inconsistent with the reservation of the backpay determination in the January 12, 9 2021 supplemental order and its citation to Frederick County II, as there would otherwise have 10 been no reason to reserve this issue. Accordingly, the court finds that the Interim Period 11 constitutes an invalid administrative edict, and the difference between the 2020 AEWRs and the 12 2021 AEWRs constitutes funds withheld pursuant to that invalid administrative edict. 13 The court must next determine whether “justice between the parties requires” a backpay 14 award. Frederick Cnty. I, 703 F. Supp. at 1029. Answering this question requires a balancing of 15 the equities. Id. The court finds the factors set forth in Morrison v. United States Department of 16 Labor to be instructive and will therefore employ the approach adopted by the court in that case. 17 In applying this equitable restitution framework in the context of H-2A workers, the court in 18 Morrison held that “the weightiest factor for the Court’s consideration is whether the growers 19 relied on the approval by the DOL and whether such reliance was reasonable.” Morrison v. U.S. 20 Dep’t of Lab., 713 F. Supp. 664, 673 (S.D.N.Y. 1989). The court will therefore begin by 21 determining whether the growers reasonably relied on the DOL’s approval of lower wage rates 22 during the Interim Period. 23 In Frederick County II, the D.C. Circuit affirmed the district court’s backpay award, and 24 rejected the growers’ claims of reasonable reliance and substantial hardship. The court noted that 25 “when the growers made plans for the 1983 harvest and filed their job clearance orders to hire 26 H-2 workers, there was at the least a significant possibility that the 1983 harvest would be 27 governed” by the last effective regulation. Frederick Cnty. II, 968 F.2d at 1273. The court also 28 noted that, in light of the district court having enjoined the 1983 regulation, “the growers knew 1 ‘full well that the [1983 regulation] was, if not flatly invalid, of at least dubious validity.’” Id. at 2 1274; see also id. (“If the growers ‘relied’ upon the 1983 regulation thereafter, then it was only in 3 the sense that they calculated that they were better off to pay the lower wage and hope to prevail 4 on appeal—figuring that prevailing on appeal would be a Pyrrhic victory if they had already paid 5 the higher wage. But that was merely an attempt at self-help, not a case of reasonable reliance.”). 6 In this case, any expectation that the growers would pay lower wage rates during the 7 Interim Period became unreasonable once defendants notified the public otherwise on January 15, 8 2021 pursuant to this court’s January 12, 2021 supplemental order. At that time, growers 9 certainly knew there was more than a significant possibility that the Interim Period’s wages 10 would be reset by the 2021 AEWRs. Frederick Cnty. II, 968 F.2d at 1273. However, the court 11 acknowledges that growers may well have reasonably relied on the expectation of lower wage 12 rates until they were given notice on January 15, 2021. In November, the DOL published the 13 AEWR final rule in the Federal Register informing growers that the 2021 AEWRs would no 14 longer be calculated based on the 2010 rule’s methodology, and it was not unreasonable for 15 growers to follow this direction. That rule was in effect for two days before it was enjoined, and 16 growers resumed paying farmworkers at the 2020 AEWRs’ rate. See Frederick Cnty. I, 703 F. 17 Supp. at 1029 (denying backpay for the 1984 harvest and finding that growers had reasonable 18 reliance under the DOL’s direction). This is distinguishable from Frederick County II, where the 19 court found that once “the district court enjoined the Secretary from implementing the 1983 20 regulation, the growers knew ‘full well that the [1983 regulation] was, if not flatly invalid, of at 21 least dubious validity.’” Frederick Cnty. II, 968 F.2d at 1274. In this case, even if growers knew 22 that the AEWR final rule was being litigated,3 that does not render their initial reliance on the 23 ///// 24 ///// 25 ///// 26 ///// 27 3 See United Farm Workers v. Perdue, No. 1-20-cv-01452-DAD-JLT, 2020 WL 6939021, at *4 28 n. 4 (E.D. Cal. Nov. 25, 2020). 1 AEWR final rule from November 5, 2020 to January 15, 2021 unreasonable in the court’s view.4 2 When plaintiffs moved for preliminary injunctive relief, there were potentially meritorious 3 arguments being advanced by both sides. Thus, the AEWR final rule was not so obviously 4 invalid that growers should have expected to prepare for AEWR rates calculated under the 2010 5 rule when plaintiffs filed this action. In sum, the court finds that consideration of the extent of the 6 reasonableness of the growers’ reliance upon the DOL weighs in favor of granting equitable 7 restitution to plaintiffs, but only as it pertains to the time period from January 15, 2021 to 8 February 23, 2021. 9 Other factors the court in Morrison considered included “the role of the DOL in setting 10 the rates, the timing of the action, the absence of a statutory refund power, and the lack of bad 11 faith.” Morrison, 713 F. Supp. at 675. As to the first factor, the court held that growers “should 12 not be forced to bear the cost” when “the wage rate was set by the DOL, not by the growers.” Id. 13 The same principle applies to this case. 14 However, the court finds that the timing of events in this case does weigh in favor of 15 granting equitable restitution. In Morrison, the DOL improperly applied the prevailing wage 16 legislation when approving growers’ H-2A work orders in the year 1986. Id. at 669. Growers 17 submitted their workorders by May 1986, and suit was brought in August 1986. Id. at 673. That 18 suit was filed “just days prior to the commencement of the harvest season.” Id. In contrast, this 19 action was filed twenty-five days after the AEWR final rule was promulgated on November 5, 20 2020. (See Compl.) On December 23, 2020, the court enjoined the rule two days after it went 21 into effect. (See Doc. No. 37.) The quick turnaround between the initiation of this lawsuit and 22 the short period of time that the AEWR final rule was in effect weighs in favor of granting 23 4 The court notes that the growers being nonparties to this action does not nullify the notice 24 arising from the court’s rulings in this case. See Frederick Cnty. II, 968 F.2d at 1274 (affirming that the non-party growers were on notice given the court’s injunction); See NAACP v. Donovan, 25 558 F. Supp. 218, 223 (D.D.C. 1982) (“NAACP I”) (“This suit requires determination of one basic issue—whether the DOL is complying with its own regulations. Clearly the ruling of the Court 26 will affect all those people who are affected by the regulations at issue. But this fact does not 27 make all of those effected individuals indispensable parties. Courts have often held that in suits to compel federal agencies to obey the law the countless people or entities who would be effected 28 thereby do not become necessary parties.”). 1 equitable restitution. See Morrison, 713 F. Supp. at 675 (“As a result of this [three month] delay 2 [in bringing suit], the growers took actions which irrevocably committed them to cultivating their 3 crop and harvesting it with the help of H–2 workers.”). 4 The court next considers “the absence of a statutory refund power.” Id. Defendants 5 contend that this applies here because they lack the power to require employers to remit the 6 requested backpay. (Doc. No. 47 at 8–9.) Plaintiffs counter that the DOL’s regulations 7 contemplate circumstances where defendants can require a wage adjustment during a work 8 contract upon notice to the employer. (Doc. No. 44 at 10); see also 20 C.F.R. § 655.120(c) (“If 9 the prevailing hourly wage rate or piece rate is adjusted during a work contract, and is higher than 10 the highest of the AEWR, the prevailing wage, the agreed-upon collective bargaining wage, or the 11 Federal or State minimum wage, in effect at the time the work is performed, the employer must 12 pay that higher prevailing wage or piece rate, upon notice to the employer by the Department.”). 13 Indeed, plaintiffs request that the court order the DOL to require any H-2A employer with H-2A 14 workers or U.S. farmworkers in corresponding employment during the Interim Period to certify 15 compliance with the wage adjustment requirement as part of its next H-2A application. (Id. at 16 14–15.) Plaintiffs note that courts have previously ordered the DOL to condition future 17 temporary labor certifications as a means of enforcing equitable restitution awards such as that 18 which they seek here. (Id. at 15 n. 10) (citing NAACP, Jefferson County Branch v. Donovan, 566 19 F. Supp. 1202 (D.D.C. 1983) (“NAACP II”)). 20 Explicit statutory authority supporting the award of equitable restitution is lacking. 21 Nonetheless, plaintiffs have persuasively argued that consideration of this factor is entitled to 22 little weight. Notably, the court in Morrison acknowledged that “Part 658 of the regulations does 23 refer to restitution, but a reading of the regulation indicates that it is purely voluntary and not 24 compulsory.” Morrison, 713 F. Supp. at 675; see also 20 C.F.R. § 658.502(a)(4)(ii) 25 (contemplating that an employer’s services can be terminated within a certain period of time 26 unless, among other things, the employer proves they provided restitution); 20 C.F.R. 27 § 658.502(a)(5)(ii) (same); 20 C.F.R. § 658.504(a)(2)(ii) (explaining that services may be 28 reinstated to an employer if, among other things, the employer proves they provided restitution). 1 Thus, while there is no explicit statutory power to effectuate a backpay award, plaintiffs are 2 correct that, by the same token, DOL’s regulations do not foreclose a backpay award. In fact, 3 those regulations suggest that the DOL has the power in some form to require backpay. 4 Accordingly, the court finds that the absence of explicit statutory authority only slightly weighs 5 against the award of equitable restitution. 6 Next, the court considers whether “bad faith” was at play in this case. Morrison, 713 F. 7 Supp. at 676. There is nothing in the record suggesting that the growers acted in bad faith when 8 paying workers at the 2020 AEWR rates during the Interim Period. Id. (“[T]here is nothing in the 9 record which suggests that when the job orders were approved by the DOL, the growers believed 10 that the prevailing wage regulation was not properly applied.”). In fact, growers were complying 11 with this court’s January 12, 2021 supplemental order. (See Doc. No. 39.) 12 Finally, the court “consider[s] the public interest in seeing that restitution is granted.” 13 Morrison, 713 F. Supp. at 676. In their motion, plaintiffs argue that the growth in the AEWRs 14 should have automatically and immediately resulted in raises for H-2A workers and U.S. 15 farmworkers in corresponding employment at H-2A program employers. (Doc. No. 44 at 10.) As 16 plaintiffs have argued throughout this litigation, “[f]armworkers are among the lowest-paid 17 workers in the United States, so ‘[r]educing farmworkers wages by approximately four or five 18 percent would therefore clearly cause substantial harm to plaintiffs’ members and their families.’” 19 (Id. at 12) (citing Doc. No. 39 at 28). Plaintiffs further argue that many farmworkers struggle to 20 pay for bare necessities, and this challenge has been exacerbated by increased consumer prices 21 and reduced hours over the past year caused by the ongoing COVID-19 pandemic. (Id. at 13) 22 (citing Doc. No. 39 at 29). Plaintiffs estimate, based on H-2A job order certification data, that the 23 typical affected farmworker employed in California since the start of 2021 would receive 24 approximately $325.00 in wage adjustments (id.), a significant sum for a worker on a subsistence 25 income. Nationwide, plaintiffs estimate that more than 73,200 H-2A workers would receive 26 wage adjustments, with a typical payment of approximately $132.00. (Id.) 27 Defendants argue that growers operate within a market, setting prices based on the costs 28 of inputs and labor costs, and “[r]etrospectively increasing that cost would put the growers in a 1 difficult position because they are, of course, unable to” make adjustments “to reflect the true cost 2 of labor.” (Doc. No. 47 at 13.) (citing NAACP I, 558 F. Supp. at 224). Defendants also argue that 3 such reliance interests are heightened when the amount of potential backpay is not calculated or 4 calculable until after the relevant work has already been performed. (Id. at 13–14.) Defendants 5 note that while courts have issued backpay awards in this context in the past, the proper rate in 6 those cases had already been calculated by DOL and was known to employers. (Id. at 14) (citing 7 NAACP II, 566 F. Supp. at 1210). 8 The court acknowledges that there are credible arguments on both sides with respect to 9 this factor. In the end, however, it is plaintiffs who have the far more compelling case as to the 10 need for an order requiring equitable restitution. As previously noted, the Ninth Circuit has 11 observed that “[w]hen a family is living at subsistence level, the subtraction of any benefit can 12 make a significant difference to its budget and to its ability to survive.” Paxton v. Sec’y of Health 13 & Human Servs., 856 F.2d 1352, 1354 (9th Cir. 1988). The farmworkers should not bear this 14 cost because of the situation defendants have created. That being said, the court acknowledges 15 that the true cost of labor during the Interim Period exceeded plaintiffs’ predictions based on FLS 16 trends. (Compare Doc. No. 39 at 28 with Doc. No. 44 at 7.) Growers had no way to accurately 17 predict what their labor inputs and costs would be, and as stated above, many growers’ reliance 18 on the AEWR final rule may have not been unreasonable until they were given notice by 19 defendants on January 15, 2021 that the award of backpay was being contemplated by this court. 20 On balance, the court finds that the public interest factor weighs strongly in favor of granting 21 equitable restitution. However, the backpay period shall exempt the dates January 1, 2021 to 22 January 14, 2021. Cf. Frederick Cnty. II, 968 F.2d at 1274 (“[B]ecause the 1983 regulation was 23 promulgated on the eve of the 1983 harvest and was in effect for only six days in 1983—and the 24 district court exempted these six days from the backpay period—it is clear that the growers are 25 not being required to make restitution in respect of any period during which they reasonably 26 relied upon the 1983 regulation.”). 27 In light of these factors, the court concludes that wages were “obtained in such 28 circumstances that the possessor will give offense to equity and good conscience if permitted to 1 retain it.” See Frederick County I, 703 F. Supp. at 1029. To not order wage adjustments under 2 the circumstances presented by this case “would be to give legal effect to the [agency’s] invalid 3 order.” Democratic Cent. Comm. of D.C., 485 F.2d at 825. Plaintiffs have therefore established 4 that equitable restitution by way of backpay for the days worked between January 15, 2021 and 5 February 23, 2021 is an appropriate remedy that should be granted at this time. Accordingly, the 6 court will grant plaintiffs’ motion seeking an extension of the court’s previously granted 7 preliminary injunctive relief in the form of equitable restitution.5 8 CONCLUSION 9 For the reasons set forth above: 10 1. Plaintiffs’ motion seeking an extension of the court’s previously granted 11 preliminary injunctive relief in the form of equitable restitution (Doc. No. 44) is 12 granted; 13 2. Defendants are directed to notify state workforce agencies, employers, and the 14 public within seven (7) days of this order of the following: 15 a. H-2A employers who submitted job orders and applications for H-2A labor 16 certification between December 21, 2020 and February 23, 2021 are 17 required to make wage adjustment payments to qualifying H-2A workers 18 and U.S. farmworkers in corresponding employment who worked during 19 the period from January 15, 2021 to February 23, 2021 and received an 20 hourly wage below the geographically applicable 2021 AEWR; 21 b. Each wage adjustment payment must equal the total number of hours a 22 farmworker worked from January 15, 2021 and February 23, 2021 23 multiplied by the difference between the wage received and the 24 geographically applicable 2021 AEWR; 25

5 At the May 11, 2021 hearing, the parties stated that there is nothing more in terms of the record 26 or evidence that the court requires or that would assist the court in rendering a decision on the 27 merits of this action. In light of this acknowledgement, the parties are encouraged to either stipulate to entry of judgment or to otherwise resolve this matter with a request for dismissal as 28 part of that resolution. 1 C. Those H-2A employers are required to make wage adjustment payments to 2 the qualifying H-2A workers and U.S. farmworkers in corresponding 3 employment within sixty (60) days of defendants having provided the 4 notice required by this order; and 5 3. Defendants shall require that any H-2A employer with H-2A workers or U.S. 6 farmworkers in corresponding employment during the Interim Period be required 7 to certify compliance with the wage adjustment requirement either as part of its 8 next H-2A application or by other valid and enforceable means. 9 | ITIS ORDERED. si am 8 Dated: _ May 13, 2021 Vila AL Aa 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14