COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS et al v. PEREZ et al
OPINION filed re. 21 and 27 . Signed by Judge Robert B. Kugler on 12/4/2015. (drw)
NOT FOR PUBLICATION
(Doc. Nos. 21 & 27)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
COMITÉ DE APOYO A LOS
TRABAJADORES AGRÍCOLAS, et al.,
Thomas E. PEREZ,
Secretary of Labor, et al.,
Civil No. 15–4014 (RBK/JS)
KUGLER, United States District Judge:
Plaintiffs Comité de Apoyo a los Trabajadores 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, Employment 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.
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 Pls.’ 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)(1)(i)–(iii), 655.10(f)(4). See Pls.’ 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.
Secretary, U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 2014).
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 nonagricultural 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.
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 a 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)(1)(i) through (iii). Section 655.10(f)(1)(i) allows the NPWC to consider an employerprovided 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)(1)(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)(1)(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
Section 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).
The SOC system is the BLS’s Standard Occupational Classification (“SOC”) system.
To provide evidence of standing, Plaintiffs submitted affidavits from the following
individuals: Plaintiff Antonio Rivera Martinez (“Plaintiff Rivera”); Diana Karen Luna, a summer
intern with Friends of Farmworkers, Inc.; Nelson Carrasquillo, Executive Director of CATA;
Carl Wilmsen, Executive Director of NFWC; Ramon Ramirez, President of PCUN; and Ismael
Perez, a member of PCUN. See Pls.’ Opp’n. Br., Exs. 1–6 (Doc. No. 32–1).
Plaintiff Rivera has worked as a seasonal landscape laborer since 2007, and he is
currently paid $16 per hour. See Rivera Aff. ¶ 3. He testifies that if he decided to search for
another job within the landscaping injury, he would need to compete directly with H-2B workers,
thereby reducing the wages that he “will be likely paid when applying for a job[.]” See id. ¶¶ 10,
12. He further testifies that allowing employers to pay lower wages to H-2B workers “would
negatively affect [his] ability to find a job.” See id. ¶ 10. Ms. Luna’s affidavit supports Plaintiff
Rivera’s affidavit with data and attachments. See generally Luna Aff.
CATA has approximately 2,500 members, including those who work in non-agricultural
jobs and H-2B workers seasonally employed in landscaping jobs. Carrasquillo Aff. ¶¶ 5–6. Mr.
Carrasquillo identifies some occupations in which CATA has U.S. worker-members competing
with H-2B workers. See id. ¶ 9. He testifies that:
Through its work, CATA strives to improve the working and living conditions of
its members and member communities. CATA seeks to protect its members’
interest in ensuring that the U.S. Department of Labor is enforcing the H-2B
regulations, specifically by accurately assessing the wages to be paid to H-2B
workers so that they are fairly compensated for their work, and so that U.S. and
work-authorized individuals in those industries do not see a decrease in their
wages due to the employment of H-2B workers.
Id. ¶ 7. He also describes CATA’s participation in previous lawsuits regarding regulations
determining the H-2B prevailing wage. See id. ¶¶ 11–15, 21.
NFWC is a nonprofit organization whose membership includes both U.S. workers and H2B workers in the forestry and harvesting industry. Wilmsen Aff. ¶ 3–4. Mr. Wilmsen describes
NFWC’s “legal and public advocacy” regarding the H-2B program regulations, including
participation in previous lawsuits against DOL and DHS. Id. ¶ 10. Mr. Wilmsen states that:
The NFWC strives to protect the interests of its U.S. worker members by ensuring
the U.S. Department of Labor (DOL) carries out its duty to prevent the
importation of H-2B workers from adversely affecting the wages and working
conditions of U.S. workers employed in the same occupation and area of
employment as H-2B workers. The NFWC also strives to protect the interests of
its H-2B worker members by ensuring DOL enforces the H-2B regulations so that
they are not paid artificially low wages and do not work in substandard working
Wilmsen Aff. ¶ 8–9. He testifies that the H-2B wage harms its members who are U.S. workers,
and he predicts that the 2015 Wage Rule “will have a particularly depressive effect on [their]
wages and job opportunities.” Id. ¶¶ 13–14.
PCUN is a union representing over 6,500 members in reforestation and agriculture.
Ramirez Aff. ¶ 3–6. PCUN’s mission is “to empower its membership to recognize and take
action against worker exploitation.” Id. PCUN was organized to “represent the interests of its
members in reforestation work to improve their wages and working conditions.” Id. ¶ 14. Mr.
Ramirez describes PCUN’s involvement in previous challenges to H-2B wage regulations. See
id. ¶¶ 9, 17–23. He asserts that PCUN has increased its resources devoted to challenging H-2B
wage regulations, including devoting PCUN staff time to understanding the relevant legal issues
and participating in lawsuits. Id. ¶¶ 16, 24.
Mr. Ramirez testifies that PCUN’s members compete with H-2B workers for jobs, and
that H-2B regulations have negatively impacted PCUN’s members’ wages, working conditions,
and employment opportunities. Id. ¶ 4–6. More specifically, he testifies that PCUN members
such as Ismael Perez “are unable to find work in forestry at a sustainable wage” because of low
H-2B wages. Id. ¶ 15.
Mr. Perez testifies that he organized a co-op with his family in 1999 and “began bidding
on contracts for reforestation work.” Perez Aff. ¶ 5. His co-op was successful until 2008. Id. ¶ 5–
6. Since then, Mr. Perez’s co-op has lost bids to contractors that use H-2B workers. Id. ¶ 6. His
co-op has performed reforestation work since 2008, but less than it previously had and not
enough to allow specialization. Id. ¶ 9. Contracts pay less for comparable work, and Mr. Perez’s
wages have been “affected.” Id.
Mr. Perez avers that the recent prevailing wage for “an experienced forestry worker” is
now about $13.50 per hour, a decrease from “a few years ago.” Id. ¶ 7. Forest Service contract
officers told Mr. Perez that his co-op could employ H-2B workers “for about half of the
prevailing wage rate.” Id. They also told him to apply for H-2B workers so his co-op could
“bring the wage rates down to be competitive.” Id. ¶ 8.
SUMMARY JUDGMENT STANDARD
The court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide
issues of fact. Id. at 248. Because fact and credibility determinations are for the jury, the nonmoving party’s evidence is to be believed and ambiguities construed in her favor. Id. at 255.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Id. at 256. The nonmoving party must at least present
probative evidence from which jury might return a verdict in his favor. Id. at 257. Furthermore,
the nonmoving may not simply allege facts, but instead must “identify those facts of record
which would contradict the facts identified by the movant.” Port Auth. of New York and New
Jersey v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002). The movant is entitled to
summary judgment where the non-moving party fails to “make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When parties file
cross-motions for summary judgment, the court must apply the summary judgment standard to
each party’s motion individually. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir.
ARTICLE III STANDING REQUIREMENTS
Federal courts are courts of limited subject matter jurisdiction, restricted by Article III of
the United States Constitution to decide only “Cases” and “Controversies.” See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 559 (1992); see also Edmonson v. Lincoln National Life Ins.
Co., 725 F.3d 406, 414 (3d Cir. 2013). Article III jurisdictional requirements are essential to
maintain the proper separation of powers between the three co-equal branches of government.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998). Without jurisdictional
limits, the judiciary could unnecessarily decide “abstract questions of wide public
significance[,]” usurping power from Congress and the President. See Warth v. Seldin, 422 U.S.
490, 500 (1975).
Justiciability doctrines such as standing are the enforcement mechanisms through which
courts enforce Article III jurisdictional requirements. See Toll Bros., Inc. v. Twp. of Readington,
555 F.3d 131, 137 (3d Cir. 2009). For a district court to have jurisdiction, plaintiffs must have
standing at the time of the filing of the complaint. See Defenders of Wildlife, 504 U.S. at 571 n.5;
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 360 (3d Cir. 2014).
Burden of Proof
Plaintiffs bear the burden of proof to establish standing. See Friends of the Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 (2000); Toll Bros., 555 F.3d at
138 n.5. Standing is not a pleading requirement. Lujan v. National Wildlife Federation, 497 U.S.
871, 883–89 (1990); Pennsylvania Prison Soc. v. Cortes, 508 F.3d 156, 161 (3d Cir. 2007). Each
element of standing “must be supported . . . with the manner and degree of evidence required at
the successive stages of the litigation.” Pennsylvania Prison Soc., 508 F.3d at 161.
To defeat summary judgment, a plaintiff must therefore submit “affidavits or other
evidence” demonstrating standing “through specific facts.” Fair Housing Council of Suburban
Philadelphia v. Montgomery Newspapers, 141 F.3d 71, 76 (3d Cir. 1998) (quoting Defenders of
Wildlife, 504 U.S. at 562). A district court cannot find that an “affidavit containing general
allegation of injury” sufficiently “constitute[s] averment of requisite facts” solely because
“otherwise allegation of injury would be unsupported[.]” National Wildlife Federation, 497 U.S.
889. Conversely, to be entitled to summary judgment, a plaintiff must “establish that there exists
no genuine issue of material fact as to justiciability or the merits.” Dep’t of Commerce v. U.S.
House of Rep., 525 U.S. 316, 329 (1999).
Irreducible Constitutional Minimum of Standing
Three elements comprise the “irreducible constitutional minimum of standing[.]”
Defenders of Wildlife, 504 U.S. at 560. To establish standing, a plaintiff must demonstrate: (1) an
injury in fact; (2) a causal relationship between that injury and the challenged action; and (3) the
likelihood that a favorable decision would redress that injury. See id. at 560–61; see also
Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009).
To be cognizable under Article III, an injury must be “actual or imminent.” Defenders of
Wildlife, 504 U.S. at 560. To constitute sufficient injury in fact, a plaintiff must demonstrate that
a threat of future harm is “certainly impending[.]” Whitmore v. Arkansas, 495 U.S. 149, 158
(1997); see also New Jersey Physicians, Inc. v. President of the United States, 653 F.3d 234, 238
(3d Cir. 2011) (plaintiffs must “demonstrate a realistic danger of sustaining a direct injury”)
(quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)); Reilly v.
Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (“an indefinite risk of future harms by unknown
third parties” does not confer standing). A “conjectural or hypothetical” injury is not justiciable.
Lujan, 504 U.S. 560.
An injury in fact must also be “concrete and particularized[.]” Defenders of Wildlife, 504
U.S. at 560. This requirement means that the party seeking review must “be himself among the
injured.” Sierra Club v. Morton, 405 U.S. 727, 735 (1972). Organizations cannot establish
standing “solely on the basis of institutional interest in a legal issue[,]” Pennsylvania Prison
Soc., 508 F.3d at 162, because an “abstract concern” that could be addressed by litigation “does
not substitute for the concrete injury required by Art. III.” Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 40 (1976). Furthermore, a plaintiff cannot establish standing simply by “making
expenditures to advance litigation[.]” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 280 (3d
Cir. 2014); see also Steel Co., 523 U.S. at 107 (“[A] plaintiff cannot achieve standing to litigate a
substantive issue by bringing suit for the cost of bringing suit.”).
Injury in fact alone is not enough to confer standing—a plaintiff must also show that the
injury “fairly can be traced to the challenged action of the defendant[.]” Simon, 426 U.S. at 41. A
plaintiff cannot establish standing if his injury “results from the independent action of some third
party not before the court.” Id. at 41–42; see also Toll Bros., 555 F.3d at 142 (“The plaintiff must
establish that the defendant’s challenged actions, and not the actions of some third party, caused
the plaintiff’s injury.”); Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir. 2011) (a plaintiff
cannot establish standing if his injury is the result of “an indefinite risk of future harms inflicted
by unknown third parties.”). But causation in the standing context “is not the same as proximate
causation from tort law[.]”Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 366 (3d
Cir. 2014). Even absent but-for causation, a plaintiff may have standing if “the record present[s]
substantial evidence of a causal relationship between the government policy and the third-party
conduct, leaving little doubt as to causation and likelihood of redress.” Id. (quoting Bloomberg
L.P v. CFTC, 949 F. Supp. 2d 91, 116 (D.D.C. 2013).
A plaintiff must also demonstrate that is “likely” that his injury will be “redressed by a
favorable decision.” Defenders of Wildlife, 504 U.S. at 561. It is more difficult for a plaintiff to
establish that a favorable court decision will redress his injury when he challenges government
regulations that “neither require nor forbid any action” by the plaintiff. Summers, 555 U.S. at
494. When the plaintiff is not “himself an object” of the regulation, he must aver more facts at
the summary judgment stage to demonstrate redressability. Defenders of Wildlife, 504 U.S. at
561. Although “standing is not precluded” in this situation, “it is ordinarily ‘substantially more
difficult’ to establish.” Defenders of Wildlife, 504 U.S. at 562. This difficulty arises because
when “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or
lack of regulation) of someone else . . . causation and redressability ordinarily hinge on the
response of the regulated (or regulable) third party to the government action or inaction[.]” Id.
The plaintiff must “adduce facts showing that those choices have been or will be made in such
manner as to produce causation and permit redressability of injury.” Id. If a plaintiff’s injury is
“not tied to application of the challenged regulations,” he does not have standing to challenge
those regulations. See Summers, 555 U.S. at 495.
Standing for Prospective Relief
A plaintiff must establish standing for the type of relief sought. See Laidlaw
Environmental Services, 528 U.S. at 185. To have standing for prospective relief, a plaintiff must
demonstrate “continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983). Past injury is relevant because it provides evidence on “whether there is a real and
immediate threat of repeated injury[,]” but past injury “does not in itself show a present case or
controversy regarding injunctive relief[.]” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96
When a plaintiff challenges particular provisions of a regulation, that plaintiff must
demonstrate standing for each provision he challenges. See FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 233–36 (1990). A plaintiff has standing to challenge a provision only if its application
causes a cognizable injury to him. See FW/PBS, Inc., 493 U.S. at 231 (holding that the Court was
under “an independent obligation” to determine “whether petitioners had standing to challenge
any particular provision of the ordinance”); see also Get Outdoors II, LLC v. City of San Diego,
506 F.3d 886, 892 (9th Cir. 2007) (party “has standing to challenge only those provisions that
applied to it”); Covenant Media of SC, LLC v. City of North Charleston, 493 F.3d 421, 430 (4th
Cir. 2007) (“a plaintiff must establish that he has standing to challenge each provision of an
ordinance by showing that he was injured by the application of those provisions”). It would be
“patently advisory” for a Court to evaluate all provisions of a regulation based on a challenge by
a plaintiff who suffers harm only from particular provisions of that regulation. See Babbitt, 442
U.S. at 292, 299, 304 (holding that challenges to two provisions of a state statute were not
justiciable, but that challenges to three other provisions of the same state statute were
justiciable). A plaintiff must therefore demonstrate injury in fact, causation, and redressability
for each challenged provision. See CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d
1257, 1273 (11th Cir. 2006) (collecting cases).
An association can establish standing “in its own right” if it demonstrates that there is
injury to the association itself. Warth, 422 U.S. at 510; see also Pennsylvania Psychiatric Society
v. Green Spring Health Services, Inc., 280 F.3d 278, 283 (3d Cir. 2002) (associations may
demonstrate standing “by asserting claims that arise from injuries they directly sustain”).
An association can also establish standing on behalf of the association’s members, if
three elements are met. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333,
343 (1977). The Supreme Court in Hunt stated the test for associational standing:
[A]n association has standing to bring suit on behalf of its members when: (a) its
members would otherwise have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.
432 U.S. at 343. To establish associational standing, the plaintiff association must “make specific
allegations establishing that at least one identified member had suffered or would suffer harm.”
Summers, 555 U.S. at 497–98 (emphasis added); see also New Jersey Physicians, Inc. v.
President of the United States, 653 F.3d 234, 241 (3d Cir. 2011). An affidavit is insufficient to
establish associational standing if it does not “name the individuals who were harmed by the
challenged” action. Summers, 555 U.S. at 498–99; see also FW/PBS, Inc., 493 U.S. at 235
(finding that affidavit “falls short of establishing” standing because “it fails to identify the
individuals” who were allegedly harmed). Speculation that “it is certainly possible—perhaps
even likely—that one individual will meet all of these criteria . . . does not suffice.” Summers,
555 U.S. at 499. Although the association must identify at least one member who has standing,
“requests by an association for declaratory and injunctive relief do not require participation by
individual association members.” Hospital Council of Western Pennsylvania v. City of
Pittsburgh, 949 F.2d 83, 89 (3d Cir. 1991).
Defendants argue that this Court lacks subject matter jurisdiction because Plaintiffs do
not have Article III standing to bring their claims and because Plaintiffs’ claims are “prudentially
unripe.” Defs.’ Br. at 11–12. To survive summary judgment, Plaintiffs must establish, through
affidavit or other evidence, that there is a genuine issue of material fact as to standing. See Fair
Housing Council, 141 F.3d at 76 (quoting Defenders of Wildlife, 504 U.S. at 562). All facts in
Plaintiffs’ supporting affidavits will be accepted as true and the Court will construe ambiguities
in their favor. See Anderson, 477 U.S. at 255; Defenders of Wildlife, 504 U.S. at 561. The Court
will address in turn each plaintiff’s standing to challenge the relevant provisions of the 2015
Antonio Rivera Martinez
Plaintiff Rivera fails to raise a genuine issue of material fact as to his standing. He does
not testify to facts supporting any cognizable Article III injury. He does not aver that he is
currently searching or imminently planning to search for another job in competition with H-2B
workers, or that his current employer intends to reduce his wage because of competition with H2B workers. He testifies only that he would be harmed by competition with H-2B workers “[i]f
[he] were to look for another job within the landscaping industry[.]” See Rivera Aff. ¶ 10
(emphasis added). The Supreme Court has explicitly rejected such “some day” intentions. See
Defenders of Wildlife, 504 U.S. at 564 (“Such ‘some day’ intentions—without any description of
concrete plans, or indeed even any specification of when the some day will be—do not support a
finding of the ‘actual or imminent’ injury that our cases require.”). Plaintiff Rivera therefore does
not have standing to challenge the 2015 Wage Rule, and this Court does not have jurisdiction to
consider his claims. Defendants are entitled to summary judgment as to Plaintiff Rivera.
CATA fails to raise a genuine issue of material fact as to either standing in its own right
or associational standing. CATA relies exclusively on Mr. Carrasquillo’s affidavit to
demonstrate standing. However, Mr. Carrasquillo does not testify to any facts suggesting that
any provision of the 2015 Wage Rule has harmed or will harm CATA itself. CATA’s concern
about the wages of H-2B and U.S. workers is not a cognizable Article III injury. See Simon, 426
U.S. at 40. Furthermore, CATA cannot establish standing in its own right through litigation
expenses. Blunt, 767 F.3d at 280. As such, CATA does not demonstrate standing in its own right
to challenge provisions of the 2015 Wage Rule before this Court.
Mr. Carrasquillo’s affidavit also does not aver facts to establish CATA has standing on
behalf of its members. He does not testify that he personally suffered or will suffer any harm
from provisions of the 2015 Wage Rule. Fatal to CATA’s assertion of associational standing,
Mr. Carrasquillo does not identify any specific CATA member harmed by the challenged
provisions of the 2015 Wage Rule. See Summers, 555 U.S. at 497–98. Although “it is certainly
possible” that at least one of CATA’s members has standing, this is insufficient to raise a
genuine issue of material fact as to associational standing. See id. at 499. This Court therefore
does not have jurisdiction over CATA’s claims, and Defendants are entitled to summary
judgment as to CATA.
Like CATA, NFWC does not have standing to challenge the 2015 Wage Rule in its own
right. Mr. Wilmsen does not testify to any facts to suggest that the 2015 Wage Rule has harmed
or will harm NFWC itself. NFWC’s investment in litigation and interest in the wages of its
members are not substitutes for a cognizable Article III injury. See Simon, 426 U.S. at 40; Blunt,
767 F.3d at 280.
NFWC also does not raise a genuine issue of material fact as to associational standing.
Mr. Wilmsen does not testify that he personally suffered or will suffer any harm from the 2015
Wage Rule. Furthermore, Mr. Wilmen’s affidavit cannot establish associational standing because
it does not “name the individuals who were harmed” or allegedly will be harmed by the
challenged provisions of the 2015 Wage Rule. See Summers, 555 U.S. at 498–99. Because
NFWC does not have standing, this Court does not have jurisdiction over NFWC’s claims, and
Defendants are entitled to summary judgment as to NFWC.
PCUN also does not have standing to challenge provisions of the 2015 Wage Rule in its
own right. Although Mr. Ramirez testifies that PCUN has invested in litigation and advocacy
activities related to H-2B wage regulations, “a plaintiff by making expenditures to advance
litigation does not suffer sufficient damage to support standing.” Blunt, 767 F.3d at 280.
Because Mr. Perez is the only named PCUN member, PCUN has associational standing
only if Mr. Perez has standing. Plaintiffs’ argument as to Mr. Perez’s standing is that “[t]he
affidavit of Ismael Perez, a member of PCUN, attests to the fact that competition with H-2B
workers has affected his ability to win contracts and has also depressed the wages he receives for
his forestry work.” Pls.’ Opp’n. Br. at 3 n.2. Plaintiffs’ interpretation of Mr. Perez’s attestations
focuses on past economic injury caused by general competition with H-2B workers. Past
economic injury does not provide standing to prospectively challenge a specific regulation. See
Lyons, 461 U.S. at 102. Furthermore, the H-2B workers with whom Mr. Perez allegedly
competed did not have their entry determined or their wages set by any provision of the 2015
Wage Rule, but instead by previous regulations not at issue in this case.
Plaintiffs fail to demonstrate that the challenged provisions of the 2015 Wage Rule
threaten imminent future harm to Mr. Perez. Mr. Perez states in his affidavit that he does not
intend to hire H-2B workers, and thus he does not intend to apply for a PWD under the
challenged regulations. Therefore, Mr. Perez’s threat of future injury arises exclusively from an
“allegedly unlawful regulation” of his competitors. Defenders of Wildlife, 504 U.S. at 561–62.
Because of this, it is “substantially more difficult” for Plaintiffs to demonstrate that Mr. Perez
has standing. Id.
To establish a “certainly impending” threat of future injury to Mr. Perez, Plaintiffs must
present evidence that the 2015 Wage Rule’s “allegedly unlawful regulation” of Mr. Perez’s
competitors imminently and actually threatens harm to Mr. Perez. Mr. Perez has standing to
challenge particular provisions of the 2015 Wage Rule only if those specific provisions threaten
imminent harm to him. See FW/PBS, Inc., 493 U.S. at 231. Plaintiffs do not provide any
evidence linking an imminent threat of harm to Mr. Perez to specific provisions of the 2015
Wage Rule.2 Therefore, Plaintiffs fail to demonstrate that Mr. Perez is suffering an imminent
threat of future injury fairly traceable to the challenged provisions of the 2015 Wage Rule. See
Steel Co., 523 U.S. at 109; O’Shea, 414 U.S. at 494.3 Because Mr. Perez does not have standing,
PCUN does not have associational standing. This Court therefore does not jurisdiction to decide
the merits of Plaintiffs’ claims.
As Plaintiffs have failed to demonstrate standing, Plaintiffs’ Motion for Summary
Judgment (Doc. No. 21) is DENIED and Defendants’ Motion for Summary Judgment (Doc. No.
27) is GRANTED.
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Mr. Perez’s competitors would need to apply for and receive PWDs under particular provisions
of the 2015 Wage Rule. If, for example, Plaintiffs introduced evidence that Mr. Perez’s
competitors would seek and obtain PWDs based on CBAs, then Mr. Perez may have standing for
prospective relief against 20 C.F.R. §§ 655.10(b)(1). In that case, however, it would cause no
harm to Mr. Perez to allow employers to apply for PWDs based on employer-provided surveys
under 20 C.F.R. § 655.10(b)(2) and § 655.10(f)(1). It would therefore be “patently advisory” for
this Court to substantively analyze 20 C.F.R. § 655.10(b)(2) or § 655.10(f)(1). See Babbitt, 442
U.S. at 304.
The Court also notes that any threat of future injury to Mr. Perez caused by his competitors’
unlawful actions is not fairly traceable to the 2015 Wage Rule. Mr. Perez asserted that Forest
Service contract officers told him he “could import workers with H-2B visas . . . for about half of
the prevailing wage rate.” Perez Aff. ¶ 7. Mr. Perez’s competitors are not acting lawfully if they
are paying H-2B workers $6.75 per hour (half of his asserted prevailing wage of $13.50 per
hour). Pursuant to 20 C.F.R. § 655.10(a), an employer must pay the highest of the PWD or
Federal, State, or local minimum wage. The federal minimum wage is $7.25 per hour. 29 U.S.C.
§ 206(a)(1)(C). The state minimum wage is $9.25 per hour in Oregon and $9.47 per hour in
Washington. See O.R.S. § 653.025(2); Oregon Bureau of Labor and Industries, Oregon 2015
Minimum Wage Determination, Sept. 17, 2014; R.C.W.A. 49.46.020(b); Washington State
Department of Labor & Industries, No increase to Washington state’s minimum wage in 2016,
Sept. 30, 2015.
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