United Farm Workers, et al. v. The United States Department of Labor, et al.

Filing 93

STIPULATION and ORDER signed by Magistrate Judge Erica P. Grosjean on January 7, 2022. IT IS HEREBY ORDERED that the deadline to respond to Plaintiffs' Complaint shall be extended from January 7, 2022, to March 8, 2022, and that the Scheduling Conference currently scheduled for January 14, 2022, shall be continued to March 15, 2022, at 10:00 a.m. before Magistrate Judge Erica P. Grosjean. The Scheduling Conference will be held telephonically, with all parties directed to the use the following dial-in number and passcode: 1-888-251-2909; passcode 1024453. All associated deadlines, including for submission of the Joint Scheduling Report, are correspondingly extended.(Rooney, M)

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1 Mark Selwyn (SBN 244180) mark.selwyn@wilmerhale.com 2 WILMER CUTLER PICKERING 3 HALE AND DORR LLP 2600 El Camino Real, Suite 400 4 Palo Alto, California 94306 Telephone: (650) 858-6031 5 Facsimile: (650) 858-6100 6 Attorney for Plaintiffs 7 BRIAN D. NETTER Deputy Assistant Attorney General 8 BRAD P. ROSENBERG Assistant Branch Director 9 MICHAEL J. GAFFNEY (D.C. Bar No. 1048531) Trial Attorney 10 United States Department of Justice Civil Division, Federal Programs Branch 11 1100 L St. NW Washington, DC 20005 12 Tel: (202) 514-2356 Fax: (202) 616-8470 13 Email: Michael.J.Gaffney@usdoj.gov 14 Attorneys for Defendants 15 IN THE UNITED STATES DISTRICT COURT 16 EASTERN DISTRICT OF CALIFORNIA 17 FRESNO DIVISION 18 19 UNITED FARM WORKERS, et al., 20 Plaintiffs, 21 v. 22 23 24 25 26 27 28 THE UNITED STATES DEPARTMENT OF LABOR, et al., Defendants. Case No. 1:20-cv-01690-DAD-BAK STIPULATION AND ORDER TO EXTEND DEADLINES (Doc. 89) 1 IT IS HEREBY STIPULATED, by and between the parties and subject to the Court’s approval, 2 that the deadline for Defendants to respond to Plaintiffs’ Complaint, ECF 1, shall be extended by a 3 further sixty (60) days from January 7, 2022 to March 8, 2022. IT IS HEREBY FURTHER 4 STIPULATED, by and between the parties and subject to the Court’s approval, that the scheduling 5 conference currently scheduled for January 14, 2022 be continued to March 15, 2022. The reasons for 6 this Stipulation are as follows: 7 1. On November 5, 2020, DOL published a Final Rule in the Federal Register setting forth a 8 revised methodology for establishing AEWRs under the H-2A program. 85 Fed. Reg. 70,455, 70,448 9 (Nov. 5, 2020) (“2020 Final Rule”). 10 2. On November 30, 2020, Plaintiffs filed their Complaint. ECF 1. 11 3. Plaintiffs timely served the United States Attorney’s Office in the Eastern District of 12 California in Fresno, California with, inter alia, the Complaint and civil summons via registered mail on 13 December 1, 2020. ECF 35 at 1, 35-2 at 6. 14 4. Pursuant to Federal Rule of Civil Procedure 12(a)(2) and in the absence of an extension, 15 Defendants “must serve an answer to a complaint . . . within 60 days after service on the United States 16 attorney.” The initial deadline for responding to Plaintiffs’ Complaint was therefore February 5, 2021. 17 5. The parties have stipulated to five previous extensions of Defendants’ deadline to respond; 18 the current deadline to respond is January 7, 2022. See ECF 88; see also ECF 41, 43, 53, 84, 86. 19 6. On December 23, 2020, the Court granted Plaintiffs’ motion for a preliminary injunction. 20 United Farm Workers v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. Dec. 23, 2020). On January 12, 2021, 21 the Court issued a supplemental order regarding preliminary injunctive relief. See United Farm Workers 22 v. Dep’t of Labor, No. 20-cv-1690 (E.D. Cal. Jan. 12, 2021). 23 7. On February 23, 2021, DOL’s Employment and Training Administration issued a notice 24 in the Federal Register announcing the 2021 AEWRs applicable to H-2A workers performing agricultural 25 labor or services other than the herding or production of livestock on the range. 86 Fed. Reg. 10,966 (Feb. 26 23, 2021). The AEWRs set forth in that notice were effective immediately. 27 8. On December 1, 2021, DOL published in the Federal Register a Notice of Proposed 28 Rulemaking to revisit the methodology for setting AEWRs for non-range occupations. See Adverse Effect STIPULATION AND PROPOSED ORDER TO EXTEND DEADLINES Error! Unknown document property name. 1 1 Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range 2 Occupations in the United States, 86 Fed. Reg. 68,174 (proposed Dec. 1, 2021) (to be codified at 20 C.F.R. 3 pt. 655). Public comments on the proposed rule are due on or before January 31, 2022. Id. at 68,175. 4 9. The parties have been actively engaged in discussions to resolve this litigation. To 5 facilitate those continued discussions, Defendants request a further 60-day extension of the deadline to 6 respond to Plaintiffs’ complaint. Plaintiffs consent to Defendants’ requested extension. 7 10. In light of the requested extension, the parties also agree that the scheduling conference be 8 continued 60 days. 9 11. Plaintiffs anticipate filing with the Court this week a motion for summary judgment seeking 10 vacatur of the 2020 Final Rule for the reasons previously set forth in Plaintiffs’ motion for a preliminary 11 injunction. See ECF 5. Defendants reserve their right to respond to any such filing. 12 12. This proceeding is exempt from the requirement that parties make initial disclosures under 13 Federal Rule of Civil Procedure 26, because it is “an action for review on an administrative record.” Fed. 14 R. Civ. Pro. 26(a)(1)(B)(i). 15 The Parties therefore stipulate, subject to the Court’s approval, that the deadline for Defendants 16 to respond to Plaintiffs’ Complaint, ECF 1, shall be extended by a further sixty (60) days from January 17 7, 2022 to March 8, 2022. The Parties further stipulate, subject to the Court’s approval, that the 18 scheduling conference shall be continued from January 14, 2022 to March 15, 2022. 19 Dated: January 5, 2022 BRIAN D. NETTER Deputy Assistant Attorney General 20 BRAD P. ROSENBERG Assistant Branch Director 21 22 By: /s/ Michael J. Gaffney MICHAEL J. GAFFNEY (D.C. Bar No. 1048531) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch Attorneys for Defendants By: 27 /s/ Mark Selwyn (authorized 01/05/22) MARK SELWYN (SBN 244180) Wilmer Cutler Pickering Hale and Dorr LLP 28 Attorney for Plaintiffs 23 24 25 26 Dated: January 5, 2022 STIPULATION AND PROPOSED ORDER TO EXTEND DEADLINES Error! Unknown document property name. 2 1 ORDER 2 IT IS HEREBY ORDERED that the deadline to respond to Plaintiffs’ Complaint shall be 3 extended from January 7, 2022 to March 8, 2022, and that the Scheduling Conference currently 4 5 6 7 scheduled for January 14, 2022 shall be continued to March 15, 2022 at 10:00 a.m. before Magistrate Judge Erica P. Grosjean. The Scheduling Conference will be held telephonically, with all parties directed to the use the following dial-in number and passcode: 1-888-251-2909; passcode 1024453. All 8 associated deadlines, including for submission of the Joint Scheduling Report, are correspondingly 9 extended. 10 IT IS SO ORDERED. 11 12 Dated: January 7, 2022 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER TO EXTEND DEADLINES Error! Unknown document property name. 1

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