INTERNATIONAL LABOR MANAGEMENT CORPORATION v. PEREZ et al
Filing
38
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 4/25/2014; that Plaintiff's Motion for a Temporary Restraining Order, Preliminary Injunction and Writ of Mandamus (Doc. 14 ) is GRANTED IN PART. FURTHER t hat the Department of Labor shall process all applications filed by Plaintiff International Labor Management Corporation for H-2A and H-2B workers in accordance with the statutory and regulatory deadlines, as follows: 1. The Department of Labor shal l issue a notice of deficiency or a notice of acceptance as to ILMCs H-2A applications within 7 days of receipt, in accordance with 8 U.S.C. § 1188(c) and 20 C.F.R. § 655.143 (a); 2. The Department of Labor shall issue a notice of deficienc y or a notice of acceptance as to ILMCs H-2B applications within 7 days of receipt in accordance with 20 C.F.R. § 655.31 and 20 C.F.R. § 655.33; and 3. The Department of Labor shall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection 8 U.S.C. § 1188(a)(1) if the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary), all as set forth in 8 U.S.C. § 1188(c)(3). (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
INTERNATIONAL LABOR
MANAGEMENT CORPORATION,
Plaintiff,
v.
THOMAS E. PEREZ, in his
Official capacity as United
States Secretary of Labor, and
UNITED STATES DEPARTMENT OF
LABOR,
Defendants.
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1:14CV231
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff International Labor Management Corporation
(“ILMC”) has moved for a temporary restraining order,
preliminary injunction, and a writ of mandamus. (Doc. 14.)
The
Government has responded in opposition (Doc. 22), and Plaintiff
has replied (Doc. 29).
On April 7, 2014, this court heard
argument from the parties.
The motion is ripe for ruling.
Plaintiff assists companies in need of foreign, seasonal
labor to navigate the complex regulatory process authorizing
these foreign workers.
Plaintiff claims the Department of Labor
(“DOL”) has failed to certify Plaintiff’s applications on behalf
of employers for H-2A and H-2B workers within the statutory or
regulatory deadlines, or acted outside its statutorily mandated
timeframes to approve these worker applications.
This delay,
Plaintiff argues, has caused damage both to Plaintiff, as agent
for employers, and to Plaintiff’s employer-clients.
Plaintiff
contends it will suffer substantial harm if the problem is not
immediately rectified.
The Government does not dispute that the
DOL has been untimely in these applications; rather, it argues
that (1) Plaintiff does not have standing to bring these claims;
(2) the statutory deadlines are not subject to enforcement by
this court; and (3) that delayed processing of the applications
was to ensure that the information in the applications was
accurate.
For the reasons set forth herein, this court finds as
follows: (1) Plaintiff has standing, as authorized agent for its
employer-clients, under Lexmark v. Static Control; (2) the
seven-day deadline within which the DOL is required to either
issue a notice of deficiency or notice of acceptance is a
mandatory deadline with which the DOL may be required to comply;
(3) the failure by the DOL to issue a notice of deficiency or
notice of acceptance causes delay to the certification process
and related damage to Plaintiff and its employer-clients; and
(4) Plaintiff is entitled to a preliminary injunction compelling
the DOL to issue either a notice of deficiency or notice of
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acceptance within the required seven-day period and to issue the
certification described in 8 U.S.C. § 1188(a)(1) if the
employer-client has complied with the criteria.
I.
RELEVANT FACTS
A.
H-2A and H-2B Programs
ILMC is an agent for a number of farming and/or agriculture
employers participating in the H-2A and H-2B programs.
Those
two programs, H-2A (8 U.S.C. § 1101(a)(15)(H)(ii)(a)) and H-2B
(8 U.S.C. § 1101(a)(15)(H)(ii)(b)), are thoroughly described in
an opinion of the Fourth Circuit, North Carolina Growers’ Ass’n,
Inc. v. United Farm Workers, 702 F.3d 755 (4th Cir. 2012), and
will not be further described here except as necessary to this
order.
Generally, a company in need of foreign workers to fill
jobs for which no American workers are available is required to
apply to the Department of Labor for a certificate issued
pursuant to 8 U.S.C. § 1188(c)(1).
The application process and
related deadlines, as established by statute and regulation, are
different for the H-2A and H-2B programs.
With respect to the H-2A program, the DOL cannot require
that the employer’s application be filed more than 45 days
before the date of need.
8 U.S.C. § 1188(c)(1).
Once the
application is filed, “[t]he employer shall be notified in
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writing within seven days of the date of filing” if it is
deficient. 8 U.S.C. § 1188(c)(2)(A) (emphasis added).
Those
deficiencies may include matters such as the absence of an
original signature of the employer (20 C.F.R. § 655.130(d)).
If
a notice of deficiency is sent, the employer must be given the
opportunity to correct any deficiencies and if the application
is corrected within five days, the otherwise applicable
timeframes remain unchanged.
If the certifying officer determines that the application
is complete, then regulations require that the certifying
officer notify the employer within seven calendar days of the
receipt of the application.
See 20 C.F.R. § 655.143(a) (“When
the CO determines the Application for Temporary Employment
Certification and job order are complete and meet the
requirements set forth in this subpart, the CO will notify the
employer within 7 calendar days of the CO’s receipt of the
Application for Temporary Employment Certification.”).
Of
particular significance to this opinion, the notification of
receipt contains a directive to the employer requiring positive
recruitment of United States workers, undertaken in accordance
with the regulations and directives of the certifying officer.
See 20 C.F.R. § 655.143(b)(2) (The notice must “[d]irect the
employer to engage in positive recruitment of U.S. workers in a
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manner consistent with § 655.154 and to submit a report of its
positive recruitment efforts as specified in § 655.156”.).1
8 U.S.C. § 1188(c)(3)(A) requires that the Secretary of
Labor:
[S]hall make, not later than 30 days before the date
such labor or services are first required to be
performed, the certification described in subsection
(a)(1) if -(i) the employer has complied with the criteria
for certification (including criteria for the
recruitment of eligible individuals as prescribed
by the Secretary).
The statute contains two schedule requirements for the DOL:
a notice of deficiency to be issued within seven days of the
application and a certification to be issued not later than
thirty days before the date the labor is required.
The
“certification described in subsection (a)(1),” which shall be
The Department of Labor has advanced an argument that
“ILMC filed several applications for employer clients in the
H-2A and H-2B programs with DOL, but the agency has not yet
approved some of the applications because the employers have not
completed the mandatory test of the domestic labor market.”
(Defs.’ Mem. in Opp’n to Pl.’s Mot. for Emergency Injunctive
Relief (Doc. 22) at 10.) This argument is at best disingenuous
and at worst highly misleading. Specifically, the employer
cannot complete the mandatory test of the domestic labor market
until the certifying officer issues a notice of acceptance
containing the requested test. The DOL’s argument suggests that
any delay arises from the employer’s responsibility to complete
positive recruitment. However, the record reflects, and this
court finds, that any delay in testing the market was caused
solely by the DOL in failing to timely issue a notice of
acceptance.
1
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made no later than 30 days before the date labor is required, is
the following:
(a) Conditions for approval of H-2A petitions
(1) A petition to import an alien as an H-2A worker
(as defined in subsection (i)(2) of this section) may
not be approved by the Attorney General unless the
petitioner has applied to the Secretary of Labor for a
certification that –(A) there are not sufficient workers who are
able, willing, and qualified, and who will be
available at the time and place needed, to
perform the labor or services involved in the
petition, and
(B) the employment of the alien in such labor or
services will not adversely affect the wages and
working conditions of workers in the United
States similarly employed.
8 U.S.C. § 1188(a).
As particularly relevant to this case, the failure by the
DOL to timely issue either a notice of deficiency or a notice of
acceptance can substantially delay the entire certification
process period.
Applications are not filed more than 45 days
prior to the date of need and certification is required at least
30 days prior to the date of need.
The entire H-2A
certification process is therefore required to occur within a
15-day period.
That period allows for seven days of initial
review and then seven to eight days of positive recruitment of
American workers prior to certification.
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The H-2B program does not contain similar statutory
deadlines.
However, the H-2B program does contain a regulatory
scheme with required action by the DOL to occur within
particular timeframes.
Specifically, the applicable
regulations, 20 C.F.R. §§ 655.312 and 655.333, require the DOL to
either issue a notice of deficiency or a notice of acceptance
within 7 days of receipt of an H-2B application.
2
20 C.F.R. § 655.31 states in part:
Notification timeline. If the CO [certifying officer]
determines the Application for Temporary Employment
Certification and/or job order is incomplete, contains
errors or inaccuracies, or does not meet the
requirements set forth in this subpart, the CO will
notify the employer within 7 business days from the
CO’s receipt of the Application for Temporary
Employment Certification. If applicable, the Notice of
Deficiency will include job order deficiencies
identified by the SWA under § 655.16. The CO will send
a copy of the Notice of Deficiency to the SWA serving
the area of intended employment identified by the
employer on its job order, and if applicable, to the
employer’s attorney or agent.
3
20 C.F.R. § 655.33 states in part:
Notification timeline. If the CO determines the
Application for Temporary Employment Certification and
job order are complete and meet the requirements of
this subpart, the CO will notify the employer in
writing within 7 business days from the date the CO
received the Application for Temporary Employment
Certification and job order or modification thereof. A
copy of the Notice of Acceptance will be sent to the
SWA serving the area of intended employment identified
by the employer on its job order and, if applicable,
to the employer’s attorney or agent.
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In 2013, ILMC acted as agent on behalf of a number of
employers seeking workers pursuant to the H-2A and H-2B
programs.
According to ILMC, during 2013, the DOL generally
followed the statutory and regulatory guidelines with respect to
its employer-clients.
(See Pl.’s Reply Br. in Resp. to Defs.’
Mem., Ex. 58 (Doc. 29-6)(comparing applicable timeframes for
selected clients in 2013 and 2014).)4
B.
ILMC’s Present Claims
ILMC’s problems appear to have arisen following the
indictment of ILMC, its owner, and its president on January 31,
2014, for allegedly submitting fraudulent H-2A and H-2B
applications.
That case, United States v. Eury, et al.,
1:14CR39 (M.D.N.C. 2014), has been scheduled for trial in
September of 2014 upon the defendants’ pleas of not guilty.
According to the Complaint and subsequent pleadings, the
applications for certification filed by ILMC this year,
following the January Indictment, were ignored by the DOL or
otherwise not timely processed.
As to the H-2A applications, no
notices of deficiency or acceptance were issued within the
relevant seven-day time period.
As a result, no positive
All citations in this Order to documents filed with the
court refer to the page numbers located at the bottom right-hand
corner of the documents as they appear on CM/ECF.
4
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recruitment steps could be taken by the employer.
Even more
significantly, certificates were not issued by the DOL at least
30 days prior to the date of need, and in many instances no
certificate was issued by the date of need.
According to ILMC,
this failure to act and failure to act in a timely fashion by
the Department of Labor caused damage, both to ILMC and its
employer-clients.
II.
ANALYSIS
“A preliminary injunction is an extraordinary remedy
afforded prior to trial at the discretion of the district court
that grants relief pendente lite of the type available after the
trial.”
Real Truth About Obama, Inc. v. Fed. Election Comm’n,
575 F.3d 342, 345 (4th Cir. 2009) cert. granted, judgment
vacated, 559 U.S. 1089 (2010), and reissued in relevant part sub
nom. Real Truth About Obama, Inc. v. F.E.C., 607 F.3d 355 (4th
Cir. 2010). “A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”
Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The party seeking the injunction must show that the
extraordinary remedy is warranted by a “clear showing.”
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Id. at
22; Real Truth, 575 F.3d at 345. “[T]he substantive standard for
granting a temporary restraining order is the same as the
standard for entering a preliminary injunction.” Tchienkou v.
Net Trust Mortg., Civil Action No. 3:10-CV-00023, 2010 WL
2375882, at *1 n* (W.D. Va. June 9, 2010) (citing Commonwealth
of Va. v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994)).
Plaintiff contends that it has presented evidence which
entitles it to injunctive relief. Defendants contend, initially,
that Plaintiff has failed to establish standing to bring this
claim.
This court will address standing before moving to the
merits of Plaintiff’s claim for injunctive relief.
A.
Standing
Defendants assert that Plaintiff lacks prudential standing
because its interests are not within the “zone of interests”
contemplated by the statute.
Defendants argue that because
Plaintiff is essentially a middle-man (agent) between employers
and migrant workers, it does not fall under the zone of
interests that 8 U.S.C. § 1188 is meant to protect — namely,
employers, domestic workers, and foreign workers.
The Supreme Court has recently clarified the contours of
prudential, as opposed to constitutional, standing.
The Court
began by noting that the very notion of prudential standing was
at odds with the Court’s “recent reaffirmation of the principle
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that a federal court’s obligation to hear and decide cases
within its jurisdiction is virtually unflagging.”
Lexmark
Int’l, Inc. v. Static Control Components, Inc., ____ U.S. ____,
____, 134 S. Ct. 1377, 1386 (2014) (internal quotation marks
omitted).
One of these prudential standing considerations was
whether “a plaintiff’s complaint fall[s] within the zone of
interests protected by the law invoked.”
U.S. 737, 751 (1984).
Allen v. Wright, 468
The Lexmark Court characterized the
notion of “‘prudential standing’ is a misnomer as applied to the
zone-of-interests analysis, which asks whether ‘this particular
class of persons ha[s] a right to sue under this substantive
statute.” Lexmark, 134 S. Ct. at 1387 (quoting Ass’n of Battery
Recyclers, Inc. v. EPA, 716 F.3d 667, 675–76 (D.D.C. 2013)
(concurring opinion)).
In other words, the Court phrased the
inquiry as “[w]hether a plaintiff comes within ‘the “zone of
interests”‘ is an issue that requires us to determine, using
traditional tools of statutory interpretation, whether a
legislatively conferred cause of action encompasses a particular
plaintiff’s claim.” Lexmark, 134 S. Ct. at 1387.
In Lexmark, the Court noted with specific reference to the
Administrative Procedure Act (“APA”), that the zone of interests
test “is not ‘especially demanding.’”
Id. at 1389 (quoting
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
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567 U.S. ____, ____, 132 S. Ct. 2199, 2210 (2012)).
The Lexmark
Court went on to describe the zone of interests tests as it
related to the Administrative Procedure Act as follows:
In [the Administrative Procedure Act] context we have
often “conspicuously included the word ‘arguably’ in
the test to indicate that the benefit of any doubt
goes to the plaintiff,” and have said that the test
“forecloses suit only when a plaintiff’s ‘interests
are so marginally related to or inconsistent with the
purposes implicit in the statute that it cannot
reasonably be assumed that’” Congress authorized that
plaintiff to sue. [Patchak] at ____, 132 S. Ct., at
2210. That lenient approach is an appropriate means of
preserving the flexibility of the APA’s omnibus
judicial-review provision, which permits suit for
violations of numerous statutes of varying character
that do not themselves include causes of action for
judicial review.
Lexmark, 134 S. Ct. at 1389.
The Supreme Court has further noted that congressional
intent when enacting the Administrative Procedure Act was “to
make agency action presumptively reviewable” and that the Court
does not “require any indication of congressional purpose to
benefit the would-be plaintiff.” Patchak, 132 S. Ct. at 2210
(internal quotation marks omitted).
Under this standard, Plaintiff’s interests here are not “so
marginally related” to the statute that “it cannot be reasonably
assumed that Congress authorized” Plaintiff to sue. For
instance, the D.C. Circuit has held that American employers,
union members who were allegedly displaced by foreign workers,
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and alien workers challenging denials of labor certifications
all were properly within the zone of interests to challenge the
H-2A certification process. See Pesikoff v. Sec’y of Labor, 501
F.2d 757, 760 (D.C. Cir. 1974)(Employers); Int’l Union of
Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 805 (D.C.
Cir. 1985)(Union Workers); De Jesus Ramirez v. Reich, 156 F.3d
1273, 1276 (D.C. Cir. 1998)(Alien Workers).
As one court noted,
the common theme among these plaintiffs is that “they all have
some proverbial skin in the game — they all have an economic
interest that is arguably protected or regulated by the INA’s
certification procedures.”
Mendoza v. Solis, 924 F. Supp. 2d
307, 323 (D.D.C. 2013).
Likewise, here, Plaintiff has an adequate interest to
create standing to bring suit.
Plaintiff is an authorized agent
of various employers, and as an agent, Plaintiff represents the
interests of employers requiring migrant workers, including
those employers’ dealings before the Office of Foreign Labor
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Certification.5
(See 20 C.F.R. § 655.133; Complaint, Ex. 2,
Agency & Indemnity Agreement for H-2A Program (Doc. 2-1).)
Plaintiff alleges injury in fact to both itself, as a result of
damage to its business, and to its employer-clients, based on
their inability to timely recruit foreign workers, all as a
result of the Department of Labor’s failure to operate within
its statutorily established timeframes.
Alleged monetary
damages aside, Plaintiff also claims damage to ILMC’s reputation
and a related loss of goodwill, claims that are largely
substantiated by the affidavits submitted by ILMC’s employerclients.
Ultimately, Plaintiff’s business centers on helping
employers navigate regulatory complexities in the H-2A and H-2B
programs.
5
Due to the DOL’s actions (or inactions), Plaintiff
“Agent” is defined in 20 C.F.R. § 655.103(b) as:
A legal entity or person, such as an association
of agricultural employers, or an attorney for an
association, that:
(1) Is authorized to act on behalf of the employer for
temporary agricultural labor certification purposes;
(2) Is not itself an employer, or a joint employer, as
defined in this subpart with respect to a specific
application; and
(3) Is not under suspension, debarment, expulsion, or
disbarment from practice before any court, the
Department, the Executive Office for Immigration
Review, or DHS under 8 CFR 292.3 or 1003.101.
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has been unable conduct its business.
This court finds that
Plaintiff’s role in the H-2A and H-2B process affords it enough
interest to “arguably” fall within the APA’s zone of interests.
Therefore, this court finds, under the standard established
by Lexmark, that Plaintiff has standing to bring these claims.
B.
Likelihood of Success on the Merits
Plaintiff requests the following relief:
[T]he entry of a Temporary Restraining Order and
Preliminary Injunction that requires Defendants to
comply with applicable statutory and regulatory
requirements and that requires them to refrain from
further violating its [sic] statutory and regulatory
obligations to issue approvals of filed applications
and labor certifications in conformance with the law,
to cease sending unauthorized questionnaires and
duplicative requests . . . . In the alternative or in
addition, ILMC asks for the entry of a writ of
mandamus to compel the Secretary to comply with clear
statutory and regulatory duties.
(Pl.’s Mot. for TRO, Prelim. Inj. & Writ of Mandamus (“Pl.’s
Mot.”) (Doc. 14) at 1.)
“A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
Winter, 555 U.S. at 20.
This court will first address the
likelihood of success on the merits, reviewing the requested
relief under the H-2A and H-2B programs separately.
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1.
H-2A Program Statutory and Regulatory Deadlines
As to its claims brought under the H-2A program, Plaintiff
contends it has established a “likelihood of success on the
merits” because Defendants have failed to act within the time
deadlines established by the statutory and regulatory scheme.
As more fully described in the factual discussion found herein,
the H-2A statutes and regulations require that an employer file
an application no more than 45 days prior to the date of need
(8 U.S.C. § 1188(c)(1)); that the DOL issue a notice of
deficiency or acceptance within 7 days (8 U.S.C. § 1188(c)(2)
and 20 C.F.R. § 655.143); and that the DOL issue a certification
not later than 30 days prior to the date of need (8 U.S.C.
§ 1188(c)(3)).
With respect to the H-2A program, Plaintiff contends that
its evidence establishes that Defendants have failed to comply
with the mandatory deadlines described above.
The Government
acknowledges that the plain language of 8 U.S.C. § 1188(c)(3)(a)
requires the DOL to grant the certification of the application
“no later than 30 days” before the date of need.
Nevertheless,
the Government argues that the statute’s failure to “specify a
consequence for noncompliance with the timing provision” is
“fatal” to “Plaintiff’s attempt to strip [the] DOL of authority
to act outside the statutory timeframe.” (Defs.’ Mem. in Opp’n
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to Pl.’s Mot. for Emergency Injunctive Relief (“Defs.’ Mem. in
Opp’n”) (Doc. 22) at 13.)
Therefore, as the Government argues,
“[the] DOL is not precluded from acting outside the statutory
timeframe to ensure the employers’ compliance with the
substantive terms of the statute.”6 (Id.)
The Government relies on Brock v. Pierce Cnty., 476 U.S.
253 (1986), to support its argument that the lack of a statutory
consequence for failing to abide by the timing requirements does
not allow this court to strip the Department of Labor the
authority to act outside this timeline.
In Brock, the Court was
presented with a statute requiring the Secretary of Labor to
take mandatory action within a set timeframe.
Id. at 254-55.
The Brock Court held “that the mere use of the word ‘shall’ in
[the statute], standing alone, is not enough to remove the
Secretary’s power to act after 120 days.”
Id. at 262.
This
general principle was reiterated by the Fourth Circuit in
Holland v. Pardee Coal Co., 269 F.3d 424 (4th Cir. 2001), in
which the court determined the effect of the failure of the
Social Security Administration to abide by a strict deadline to
The Government also advances some policy arguments
(“indicia of Congressional intent”) to show that the timing
requirements are procedural, not jurisdictional. Because this
court is of the opinion that the jurisdictional/procedural
dichotomy is not dispositive in the present case in light of the
statutory and regulatory language, the submitted evidence is
irrelevant here.
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assign eligible beneficiaries. See id. at 430 (interpreting a
provision which stated the “SSA ‘shall’ assign eligible
beneficiaries to the proper coal operators ‘before October 1,
1993’”).
There, plaintiff argued that the Social Security
Administration’s failure to act by that time-certain deadline
stripped it of its jurisdiction.
Even in light of the disputed
statute’s use of the mandatory word “shall,” the Fourth Circuit,
relying on Brock, disagreed and held that nothing in the text of
the statute or the legislative history could be read to void
action by the Social Security Administration after the statutory
deadline.
Id. at 438; see also Barnhart v. Peabody Coal Co.,
537 U.S. 149, 158 (2003) (“Nor, since Brock, have we ever
construed a provision that the Government ‘shall’ act within a
specified time, without more, as a jurisdictional limit
precluding action later.”).
This court agrees with the Government’s statement of the
law as set forth by Brock and Barnhart; however, this court
disagrees with Brock’s applicability to the present matter. The
Government’s argument fails to recognize both the mandatory and
discretionary components of the H-2A process.
The Government
impermissibly conflates this court’s inability to divest the DOL
of jurisdiction to decide an H-2A petition after the running of
the statutory time limits with this court’s ability to provide
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equitable relief to ensure the DOL acts within its statutory and
regulatory mandates.
In other words, providing equitable relief
to ensure the DOL abides by mandatory statutory limits is wholly
divorced from an order disallowing the DOL from acting once the
statutorily-derived time limits have run.
The latter is
precluded by Brock; the former is untouched.
See Sierra Pac.
Indus. v. Lyng, 866 F.2d 1099, 1111–12 (9th Cir. 1989)
(rejecting an argument that Brock strips a district court of the
ability to fashion equitable relief under the APA in response to
an agency official’s failure to act).
As such, the Government’s
attempt to differentiate the statute on jurisdictional versus
procedural grounds is not persuasive.
This court therefore finds that it is not precluded from
granting the requested injunctive relief, at least in part.
Nevertheless, Plaintiff’s argument fails to acknowledge the
more weighty concerns of when and how a federal court may
properly enjoin a federal agency. The Administrative Procedure
Act authorizes suit by “[a] person suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency
action within the meaning of a relevant statute.”
§ 702.
5 U.S.C.
“[A]gency action,” in turn is defined to include an
agency’s “failure to act.”
5 U.S.C. § 551(13).
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Under the
Administrative Procedure Act, a court may “compel agency action
unlawfully withheld or unreasonably delayed.”
5 U.S.C § 706(1).
The Supreme Court has limited the reach of § 706(1) to
“empower[ing] a court only to compel an agency ‘to perform a
ministerial or non-discretionary act,’ or ‘to take action upon a
matter, without directing how it shall act.’”
Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 64 (2004) (quoting Attorney
General’s Manual on the Administrative Procedure Act 108 (1947)
(emphasis added)).
For instance, in Norton, the Court heard a
challenge to a provision under the Federal Land Policy
Management Act requiring the “[Bureau of Land Management] . . .
to continue to manage [protected areas] . . . in a manner so as
not to impair the suitability of such areas for preservation as
wilderness.”
See id. at 65 (quoting 43 U.S.C. § 1782(c)).
The
plaintiffs claimed that the permitted use of off-road vehicles
was causing degradation to the land in violation of this
statutory provision.
The Court rejected this challenge, holding
that “Section 1782(c) is mandatory as to the object to be
achieved, but it leaves [the Bureau of Land Management] a great
deal of discretion in deciding how to achieve it. It assuredly
does not mandate, with the clarity necessary to support judicial
action under § 706(1), the total exclusion of [off-road vehicle]
use.”
Id. at 66.
In summarizing its holding, the Court
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concluded that “a claim under § 706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take.”
Id. at 64.
Particularly relevant to this case, the Court held that “when an
agency is compelled by law to act within a certain time period,
but the manner of its action is left to the agency’s discretion,
a court can compel the agency to act, but has no power to
specify what the action must be.”
Id. at 65.
In Hondros v. United States Civil Serv. Comm’n, 720 F.2d
278 (3d Cir. 1983), the Third Circuit held:
Although we hold that mandamus will not support
an order appointing Smith to permanent employment,
Smith is not thereby deprived of all judicial
remedies. Section 10(e) of the APA provides that the
reviewing court shall “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1)
(1976). This section further provides that the
reviewing court shall “hold unlawful” agency action
found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(a) (1976). It is apparent that an
“arbitrary and capricious” action is one that is
“unlawful” within the meaning of section 706(1), and
that when an agency arbitrarily or capriciously
withholds action, we may “compel” the agency to act
under this section. Accordingly, section 706(1)
authorizes injunctive relief to compel an appointment
arbitrarily or capriciously withheld.
Our interpretation accords with that of the Tenth
and District of Columbia Circuits. These courts have
held that section 706(1) is a source of injunctive
relief to remedy an arbitrary or capricious delay or
denial of agency action. See Carpet, Linoleum & Tile
Layers, Local Union No. 419 v. Brown, 656 F.2d 564,
- 21 -
566-67 (10th Cir. 1981); Health Systems Agency of
Oklahoma, Inc. v. Norman, 589 F.2d 486, 492-93 (10th
Cir. 1978) (failure to accept application an abuse of
discretion; court directed that application be
considered); M. Steinthal & Co., Inc. v. Seamans, 455
F.2d 1289, 1305-06 (D.C. Cir. 1971) (preliminary
injunction may issue when requisite standards are
met); see also Wheelabrator Corp. v. Chafee, 455 F.2d
1306, 1316-17 (D.C. Cir. 1971). Indeed, any other
interpretation would render the standards of section
706 meaningless; were it otherwise, the federal courts
would be powerless to redress agency action found
arbitrary or capricious.
Id. at 297-98.
This court concludes that the deadlines themselves are
mandatory, not discretionary, allowing this court to “compel the
agency to act.”
However, the required positive recruitment of
U.S. workers (20 C.F.R. § 655.143) and the certification (8
U.S.C. § 1188(a)(1)) constitute discretionary acts by the
agency.
Based upon the record presented, this court finds that
it does not have jurisdiction to enjoin Defendants with respect
to any specific positive recruitment efforts or to direct the
DOL to find a particular application deficient or sufficient.
Nor may this court order the DOL to find that particular
circumstances are sufficient to justify certification pursuant
to 8 U.S.C. § 1188(a)(1).
However, where the agency has simply
failed to act in a timely fashion, that failure to act is a
mandatory act subject to judicial order.
- 22 -
This court therefore finds that Plaintiff has established
the requisite likelihood of success on the merits of its claim
that Defendants have failed to act within the mandatory time
deadlines fixed by both statute and regulation.
Defendants further argue, in response to ILMC’s motion,
that ILMC’s mandamus claim fails because, “[a]fter [the] DOL
learned that ILMC may have misrepresented the number of foreign
workers that its client employers needed, see ILMC Indictment
. . . DOL contacted the employers directly to confirm that the
employers authorized the filing of the applications and that
they had an actual need for the number of workers represented on
the application forms.”
(Defs.’ Mem. in Opp’n (Doc. 22) at 19.)
DOL’s argument that its actions constituted reasonable
investigative delays is not persuasive.
First, the H-2A
enforcement mechanism for suspected misconduct is addressed in
20 C.F.R. § 655.130(e), providing that “[i]nformation received
in the course of processing Applications for Temporary
Employment Certification and program integrity measures such as
audits may be forwarded from OFLC to Wage and Hour Division for
enforcement purposes.”
Second, this audit provision does not
purport to alter the aforementioned timing mechanism for
processing the applications.
- 23 -
As a result, this court concludes that the DOL, to the
extent it believes further investigation of the currently
pending applications and of ILMC’s conduct is merited, should
proceed through the investigative process set forth in the
regulations.
It should not proceed in an unauthorized fashion
that unfairly harms both ILMC and, perhaps more importantly,
innocent employer-clients on whose behalf ILMC acts as an agent.
Based on the foregoing, this court finds that Plaintiff has
shown a substantial likelihood of success on the merits.
That
is, Plaintiff has demonstrated that Defendants have failed to
comply with the mandatory deadlines established by the H-2A
statutes and regulations.
Defendants have failed to issue the
required notices of deficiency or acceptance within 7 days of
application and have failed to issue certifications not later
than 30 days prior to the date of need.
2.
H-2B Program Regulatory Deadlines
Unlike the H-2A statutory deadlines, the H-2B timing
deadlines are entirely promulgated in the Code of Federal
Regulations.
The applicable regulations mandate that within
seven days from receipt, the DOL must either accept the H-2B
application or send the employer notice detailing why the
- 24 -
application is deficient. (See 20 C.F.R. § 655.31 & 20 C.F.R.
§ 655.33.)7
Even though the deadlines under the H-2B program are
not set forth in statutes like their H-2A counterparts, the
Accardi doctrine provides “that when an agency fails to follow
its own procedures or regulations, that agency’s actions are
generally invalid.”
Nader v. Blair, 549 F.3d 953, 962 (4th Cir.
2008) (citing United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260, 268 (1954)). “The fact that a particular regulation or
procedure is not mandated by the Constitution or by statute is
of no moment for purposes of an analysis under the Accardi
doctrine.”
United States v. Morgan, 193 F.3d 252, 266 (4th Cir.
1999); see Serv. v. Dulles, 354 U.S. 363, 388 (1957) (“While it
is of course true that . . . the Secretary was not obligated to
impose upon himself these more rigorous substantive and
procedural standards . . . having done so he could not, so long
as the [r]egulations remained unchanged, proceed without regard
to them.”).
In its reply brief, Plaintiff cites 20 C.F.R. § 655.23 for
the proposition that the H-2B regulations contain a 7-day
deadline for the DOL to issue a “request for information” in
connection with an H-2B application. (Doc. 29 at 3.) 20 C.F.R.
§ 655.23 was “removed and reserved” in 2012. 77 Fed. Reg. at
10160 (Feb. 21, 2012). However, the currently applicable
regulations set forth a similar 7-day deadline for the DOL to
either issue a notice of deficiency or acceptance as to H-2B
applications. (See 20 C.F.R. § 655.31 & 20 C.F.R. § 655.33.)
- 25 7
This court finds that the Accardi doctrine renders
mandatory the seven-day deadline to either accept an application
or notify an employer of the application’s deficiency.
Because
these deadlines detailed in the regulations are nondiscretionary, this court finds they are subject to the same
equitable relief as their H-2A statutory counterparts.
In addition to establishing a likelihood of success on the
merits, Plaintiff must also show that it “is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.”
C.
Winter, 555 U.S. at 20.
Irreparable Harm
Plaintiff contends that it will suffer irreparable harm to
its business interests in the absence of injunctive relief and,
additionally, that its employer-clients will suffer irreparable
harm as a result of an inability to acquire workers by their
date of need.
1.
Irreparable Harm to ILMC
With respect to the element of immediate, irreparable harm,
Plaintiff argues:
Should the Defendants be able to proceed in continuing
to disregard their statutory and regulatory
requirements in applying those programs, thus
stonewalling applications where ILMC appears as the
employer’s agent, without authorization then ILMC will
- 26 -
clearly be put out of business as it will not be able
to meet its clients’ needs. Defendants’ actions are
costing ILMC thousands of dollars in unrecoverable
staff costs and hours of time devoted to ameliorating
DOL’s actions when their time is already in short
supply . . . . Indeed, if Defendants’ intent is to put
ILMC out of business then they could hardly have
adopted a more effective approach . . . .
(Pl.’s Br. in Supp. of Mot. for TRO, Prelim. Inj. & Writ of
Mandamus (“Pl.’s Br.”) (Doc. 19) at 15.)
The support for this argument appears to be the affidavit
of Craig S. Eury, III. (Declaration of Craig. S. Eury, III
(“Eury Decl.”) (Doc. 18).)
employed by ILMC.
Mr. Eury is a Recruitment Specialist
(Id. ¶ 2.)
Mr. Eury states that “ILMC has
suffered and continues to suffer severe and substantial
irreparable harms by way of loss of reputation, loss of good
will, loss of the confidence of clients, as well as expenditures
of time and money that can never be recovered.”
(Id. ¶ 7.)
Mr. Eury does not specifically quantify the amount of money
ILMC is losing.
Furthermore, his conclusory allegation appears
contrary to the H-2A agency agreement which provides, “The
Client agrees to pay the ILMC any assessment made by the ILMC as
the Client’s share of legal and any other expense or liability
incurred by ILMC in defending, prosecuting or settling any
application for H-2A certification, claim, litigation . . . .”
(See Doc. 2-1 at 2.) Such a provision at least suggests that
- 27 -
ILMC is entitled to some reimbursement of expenses “incurred by
ILMC in . . . prosecuting . . . any application for H-2A
certification . . . .”
This court has been unable to find any factual support for
the arguments contained in Plaintiff’s brief that “Defendants’
actions are costing ILMC thousands of dollars in unrecoverable
staff costs and hours of time devoted to ameliorating DOL’s
actions.”
(Pl.’s Br. (Doc. 19) at 15.)
Mr. Eury’s affidavit
does not contain any information suggesting that ILMC has lost
employer-clients at this point, nor does it suggest ILMC has
lost revenues from its employer-clients.
This court therefore finds that any specific financial loss
to ILMC is speculative.
In his affidavit, Mr. Eury further states:
I often answer the telephone at ILMC. In 2014, a
number of clients have expressed to me their
frustration and concern about not getting their H-2A
workers. To the best of my knowledge, these
frustrations and concerns have been expressed to my
co-workers at ILMC, as well. ILMC has a number of
competitors in this business, and in my opinion, we
will lose a significant number of our clients in 2015
if this situation does not resolve as soon as
possible.
(Eury Decl. (Doc. 18) ¶ 13.)
Underlying Mr. Eury’s
representation that he will lose clients is the assumption that
the DOL’s conduct outlined in this case is limited to ILMC and
- 28 -
not occurring with any other agents.
This assumption may indeed
be correct; however, no evidence of that fact exists in this
case.
To put this point in perspective, Plaintiff has submitted
the affidavit of Joe Wilson, who states, “If it were to turn out
that the U.S. Department of Labor was delaying certification of
workers only for ILMC’s clients, then, as satisfied as I have
been with ILMC, I would have no choice but to find a new agent
for 2015.”
(Declaration of Joe Wilson (Doc. 18-1 ¶ 6.)
Similarly, the affidavits of Bradley Bell (Declaration of
Bradley Bell (Doc. 18-2) ¶ 5), Eddie Hobgood (Declaration of
Eddie Hobgood (Doc. 18-3) ¶ 4), and Deborah Brady Goad
(Declaration of Deborah Brady Goad (Doc. 18-5) ¶ 4) all state
that if ILMC is the only agent having problems getting
certifications, then they will find a new agent next year.
Neil
Wright phrases his concern slightly differently, and it appears
he may consider another agent if he is not able to receive
workers in a timely fashion through ILMC.
(Declaration of Neil
Wright (Doc. 18-4) ¶ 5.)
This court has considered whether an inference could be
fairly drawn that ILMC is the only agent experiencing delays
given the timing of the Indictment and the issues ILMC has
confronted; however, this court does not find such inference
reasonable at this stage.
- 29 -
Mr. Eury’s affidavit identifies the possible loss of
“clients in 2015 if this situation does not resolve as soon as
possible.”
(Eury Decl. (Doc. 18-1) ¶ 13.)
That representation
is consistent with the affidavits of ILMC’s employer-clients
described above.
However, the future impact in 2015 fails to
describe why ILMC will suffer irreparable harm through loss of
clients in the absence of preliminary relief.
Nevertheless, with respect to injury suffered by ILMC, this
court does find that ILMC has presented evidence that its
employer-clients are not satisfied with the results obtained by
ILMC and that ILMC has suffered severe and substantial harm by
way of loss of reputation, loss of goodwill, and loss of the
confidence of its clients.
ILMC has also suffered some
indeterminate administrative expense in addressing the delays
caused by the DOL.
The damage to ILMC’s reputation and loss of goodwill
constitutes irreparable harm for purposes of injunctive relief.
In Multi-Channel TV Cable Co. v. Charlottesville Quality Cable
Operating Co., 22 F.3d 546 (4th Cir. 1994), the Fourth Circuit
analyzed a finding of irreparable harm based on a loss of
goodwill:
Generally, “irreparable injury is suffered when
monetary damages are difficult to ascertain or are
inadequate.” Danielson v. Local 275, 479 F.2d 1033,
- 30 -
1037 (2d Cir. 1973). Thus, when “the record indicates
that [plaintiff’s loss] is a matter of simple
mathematic calculation,” a plaintiff fails to
establish irreparable injury for preliminary
injunction purposes. Graham v. Triangle Pub., 344
F.2d 775, 776 (3d Cir. 1965). However, when the
failure to grant preliminary relief creates the
possibility of permanent loss of customers to a
competitor or the loss of goodwill, the irreparable
injury prong is satisfied. Merrill Lynch, Pearce,
Fenner and Smith v. Bradley, 756 F.2d 1048, 1055 (4th
Cir. 1985).
Id. at 551-52.
The Fourth Circuit concluded that “the threat of a
permanent loss of customers and the potential loss of goodwill
also support a finding of irreparable harm.”
Id. at 552; see
Philips Elecs. N. Am. Corp. v. Hope, 631 F. Supp. 2d 705, 711
(M.D.N.C. 2009) (finding irreparable harm where, in the absence
of an injunction, plaintiff would suffer damage to its customer
relationships).
Therefore, this court finds that ILMC will
suffer irreparable harm in the absence of injunctive relief.
Plaintiff also asks for declaratory relief as to the DOL’s
ongoing practice of requiring additional forms and information
before processing Plaintiff’s applications, including
unauthorized questionnaires sent to employers without notice to
Plaintiff.
Following an inquiry by this court, Defendants have
filed a brief and affidavit indicating they no longer intend to
send those questionnaires to the employers.
- 31 -
(Defs.’ Supplement
Statement (Doc. 34); Declaration of William Carlson (Doc. 34-1)
¶ 6.)
While this court does not find the voluntary cessation of
sending such questionnaires moots the issue, see, e.g., United
States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203
(1968) (“Mere voluntary cessation of allegedly illegal conduct
does not moot a case.”), it does not find injunctive relief
presently appropriate.
Based on counsel’s representations to
this court, this court finds that the unauthorized
questionnaires do not constitute the type of irreparable harm
that would provide a basis to issue injunctive relief, except to
the extent such actions would delay the timely processing of
applications. However, to the extent that this practice
continues and causes delays in processing applications, this
court reserves the right to reopen this issue as to both the
merits of irreparable harm as well as address Defendants’
representations to this court.
2.
ILMC’s Employer-Clients
As to ILMC’s employer-clients, this court finds, as
described in the affidavits provided by ILMC, that those clients
are suffering and will continue to suffer immediate and
irreparable harm as a result of Defendants’ delays.
Each of the
affidavits submitted describes farm and business harm caused by
the failure to receive H-2A workers in a timely fashion. (See
- 32 -
Docs. 18-1, 2, 3, 4, and 5.)
Such injury is consistent with the
application process, as the employer is required to note a “Date
of Need” on the application (the date by which the employer
needs workers for the farming operations).
The employers, in
accordance with the business plans they have created for the
current year, have immediate need for workers to assist in their
farming operations.
The lost farming revenues resulting from
this shortage of labor constitute irreparable harm, as those
losses are not recoverable against the United States.
The Fourth Circuit has not directly addressed whether
unrecoverable economic losses constitute irreparable harm.
However, this court notes that other courts have evaluated the
issue and reached a similar conclusion.
See Iowa Utils. Bd. v.
Fed. Commc’ns Comm’n, 109 F.3d 418, 426 (8th Cir. 1996); Foltz
v. U.S. News & World Report, Inc., 613 F. Supp. 634, 643 (D.D.C.
1985); Ill. Bell Tel. Co. v. Hurley, No. 05 C 1149, 2005 WL
735968, at *7 (N.D. Ill. Mar. 29, 2005); Hollywood Healthcare
Corp. v. Deltec, Inc., No. Civ. 04-1713 (RHK/AJB), 2004 WL
1118610, at *11 (D. Minn. May 17, 2004).
While it is beyond
dispute that economic losses generally do not constitute
irreparable harm, this general rule rests on the assumption that
economic losses are recoverable.
See Iowa Utils. Bd., 109 F.3d
at 426 (stating that the cases that declare economic losses are
- 33 -
not irreparable harm rest on the assumption that those losses
are recoverable); McGean v. Montgomery Cnty., Nos. 94-2067,
94-2194, 1996 WL 295315, at *1 (4th Cir. June, 5, 1996) (“Harm
is not considered irreparable if it can be compensated by money
damages . . . .”); Dickson v. Morrison, No. 98-2446, 1999 WL
543230, at *8 (4th Cir. July 27, 1999) ([The plaintiff’s]
alleged harm was not irreparable because she could receive money
damages . . . .”).
As previously stated, Plaintiff’s economic
losses in this case are not recoverable.
See O’Brien v.
Appomattox County, No. 02-2019, 2003 WL 21711347, at *2 (4th
Cir. July 24, 2003) (per curiam) (upholding district court’s
issuance of a preliminary injunction and finding that
plaintiffs’ inability to recover their economic losses during
the pending litigation constituted irreparable harm).8
D.
Harm to Defendants if Injunctive Relief is Granted
Before injunctive relief may issue, this court must
determine whether “the balance of equities tips in [Plaintiff’s]
favor.”
Winter, 555 U.S. at 20.
Since Plaintiff has met its
In spite of this finding, an issue remains undecided and
has not been addressed by the parties. Specifically, this court
has not been able to find any authority to support a conclusion
that an agent, in seeking injunctive relief, may rely upon the
irreparable harm to its principal to secure relief where the
principal is not a party to the case. Nevertheless, because
this court finds that there is irreparable harm to ILMC, and
that there are no pending applications which the DOL has not
acted upon, this court does not resolve this issue.
- 34 8
burden of proving that it is likely to suffer irreparable harm
absent injunctive relief, the court now turns to assessing the
harm Defendants will suffer if Plaintiff’s motion is granted.
Defendants have not presented evidence of any harm that
they might suffer if an injunction is granted, at least not with
respect to the mandatory deadlines of the statutes and
regulations.
The only harm that might be inferred from
Defendants’ arguments is the inherent limitation on Defendants’
ability to investigate thoroughly the applications submitted by
a corporate agent currently under indictment for fraud.
However, the regulations provide procedures for investigation
and ultimately debarment should the circumstances warrant.
These same regulations do not permit delaying the applicable
deadlines for ad hoc investigation procedures.
As a result,
this court concludes the balance of equities falls in favor of
granting the relief requested.
E.
Public Interest
In terms of the public interest, this court finds that the
public interest is furthered when agencies act within the scope
of their authority and in a manner required by the applicable
rules.
- 35 -
F.
Mootness
During the pending proceedings in this case, some of the
untimely applications submitted by Plaintiff have been acted
upon by Defendants, thus rendering any requested injunctive
relief moot as to those employers.
“A case is moot when the challenged conduct ceases such
that there is no reasonable expectation that the wrong will be
repeated in circumstances where it becomes impossible for the
court to grant any effectual relief whatever to the prevailing
party.”
Del Monte Fresh Produce Co. v. United States, 570 F.3d
316, 321 (D.C. Cir. 2009) (internal quotation marks omitted).
However, there are two exceptions to this rule. “In at least two
kinds of cases the fact that the specific conduct that gave rise
to the case has ceased does not mean that the challenge to the
legality of that conduct is moot.”
Id.
As the D.C. Circuit
explained in Del Monte:
First, a plaintiff’s challenge will not be moot
where it seeks declaratory relief as to an ongoing
policy. [City of Houston, Tex. v. Dep’t of Housing &
Urban Dev., 24 F.3d 1421 (D.C. Cir. 1994] at 1429. In
Super Tire Engineering v. McCorkle, 416 U.S. 115, 125,
94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974), the Supreme
Court held that although a claim for injunctive relief
preventing payment of welfare benefits during a strike
was moot because the strike had ended, the employers’
request for declaratory relief was not moot because
the state’s ongoing policy of paying strike benefits
was, on the employers’ theory of the case,
“immediately and directly injurious to the
- 36 -
[employers’] economic positions.” Of course,
plaintiffs challenging an ongoing policy must
demonstrate “standing to bring such a forward-looking
challenge and [that] the request for declaratory
relief is ripe.” City of Houston, 24 F.3d at 1429.
Second, even though the specific action that the
plaintiff challenges has ceased, a claim for
declaratory relief will not be moot even if the
“plaintiff has made no challenge to [an] ongoing
underlying policy, but merely attacks an isolated
agency action,” so long as “the specific claim fits
the exception for cases that are capable of
repetition, yet evading review, or falls within the
voluntary cessation doctrine.” Id. (internal quotation
marks and citations omitted). In Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581, 594 n.6, 119 S. Ct. 2176,
144 L. Ed. 2d 540 (1999), the Supreme Court held that
the challenge by two mental patients to their
confinement in a segregated environment was not mooted
by their post-complaint transfers because “in view of
the multiple institutional placements [they had]
experienced, the controversy they brought to court
[was] capable of repetition, yet evading review.”
(internal quotation marks and citations omitted); see
also Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S.
572, 578, 107 S. Ct. 1419, 94 L. Ed. 2d 577 (1987).
Del Monte has chosen this second route by alleging
that OFAC’s failure to act promptly on Del Monte’s
August 2007 license application is capable of
repetition yet evades review.
Id. at 321-22.
Plaintiff contends that even though delayed applications
are now being processed, there are continuing applications which
may be delayed.
This process would therefore appear to be
subject to the “capable of repetition yet evading review”
exception to mootness.
- 37 -
Under this exception to mootness, the plaintiff must
“demonstrate that ‘(1) the challenged action is in its duration
too short to be fully litigated prior to its cessation or
expiration, and (2) there [is] a reasonable expectation that the
same complaining party would be subjected to the same action
again.’”
Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir.
1990) (en banc) (quoting Murphy v. Hunt, 455 U.S. 478, 482
(1982) (alteration original)).
This court finds that Plaintiff has presented evidence
satisfying each of these requirements.
Specifically, the
challenged action of approval is, “in its duration, too short to
be fully litigated prior to its cessation or expiration.”
The
entire H-2A certification process is required to be completed
within roughly two weeks.
Furthermore, in light of the conduct
of Defendants from February, 2014 to present, it certainly
appears ILMC’s applications are reasonably likely to be
subjected to the same delays again.
Other than agreeing to stop
sending the questionnaires, Defendants have offered no
explanation for the delays, nor have they provided any
assurances that the delays will stop in the absence of the use
of the questionnaires.
- 38 -
G.
Mandatory Injunctive Relief
Plaintiff requests injunctive relief that “requires
Defendants to comply with applicable statutory and regulatory
requirements . . . [and] to issue approvals of filed
applications and labor certifications in conformance with the
law.”
(Pl.’s Mot. (Doc. 14) at 1.)
Defendants argue that
Plaintiff is seeking mandatory injunctive relief.
“Mandatory preliminary injunctions [generally] do not
preserve the status quo and normally should be granted only in
those circumstances when the exigencies of the situation demand
such relief.”
Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.
1980); see Calvary Christian Ctr. v. City of Fredericksburg, 800
F. Supp. 2d 760, 765 (E.D. Va. 2011) (“The Fourth Circuit has
viewed mandatory relief with caution . . . .”). “That is to say,
a mandatory preliminary injunction must be necessary both to
protect against irreparable harm in a deteriorating circumstance
created by the defendant and to preserve the court’s ability to
enter ultimate relief on the merits of the same kind.”
In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir.
2003).
The relief Plaintiff requests can be characterized either
as an order affirmatively mandating that Defendants act within
the applicable statutory and regulatory timeframes (changing the
- 39 -
status quo), or as an order prohibiting Defendants from acting
outside the applicable timeframes (reverting back to the
statutory status quo).
The distinction between the two is
merely a semantic one.
Under either characterization, Plaintiff
is entitled to equitable relief requiring Defendants to abide by
the applicable H-2A and H-2B timelines.
As discussed above,
this court has found irreparable harm caused by Defendants’
actions.
Moreover, the longer the delays in Defendants’
actions, the greater the harm, especially to ILMC’s employerclients whose agricultural labor needs are unusually timesensitive.
Even under a cautious approach to the request for
relief, this court finds the relief specified below warranted
for the reasons previously stated.
III. CONCLUSION
Based upon the foregoing, IT IS HEREBY ORDERED that
Plaintiff’s Motion for a Temporary Restraining Order,
Preliminary Injunction and Writ of Mandamus (Doc. 14) is GRANTED
IN PART.
IT IS FURTHER ORDERED that the Department of Labor shall
process all applications filed by Plaintiff International Labor
Management Corporation for H-2A and H-2B workers in accordance
with the statutory and regulatory deadlines, as follows:
- 40 -
1.
The Department of Labor shall issue a notice of
deficiency or a notice of acceptance as to ILMC’s H-2A
applications within 7 days of receipt, in accordance with
8 U.S.C. § 1188(c) and 20 C.F.R. § 655.143(a);
2.
The Department of Labor shall issue a notice of
deficiency or a notice of acceptance as to ILMC’s H-2B
applications within 7 days of receipt in accordance with 20
C.F.R. § 655.31 and 20 C.F.R. § 655.33; and
3.
The Department of Labor shall make, not later than 30
days before the date such labor or services are first required
to be performed, the certification described in subsection
8 U.S.C. § 1188(a)(1) if the employer has complied with the
criteria for certification (including criteria for the
recruitment of eligible individuals as prescribed by the
Secretary), all as set forth in 8 U.S.C. § 1188(c)(3).
IT IS SO ORDERED.
This the 25th day of April, 2014.
_______________________________________
United States District Judge
- 41 -
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