COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS et al v. SOLIS et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE LOUIS H. POLLAK ON 7/18/11. 7/20/11 ENTERED AND COPIES E-MAILED.(fdc)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COMITÉ DE APOYO A LOS
TRABAJADORES AGRÍCOLAS, et al.,
HILDA SOLIS, et al.,
July 20, 2011
This case involves a challenge to various regulations governing the DOL’s H-2B
visa program.1 On August 30, 2010, this court invalidated, inter alia, four provisions
governing employer applications for H-2B workers. Dkts. 80, 81. Specifically, the court
invalidated: (1) 20 C.F.R. § 655.15(g), concerning when and how H-2B employers must
contact unions as a potential source of domestic labor; (2) the portion of 20 C.F.R.
§ 655.4 defining “full time”; (3) the portion of 20 C.F.R. § 655.4 defining “job
contractor”; and (4) 20 C.F.R. 655.22(k), insofar as that provision permits the clients of
job contractors to hire H-2B workers without submitting an application to the Department
For a more thorough background of this litigation, see this court’s opinion of
August 30, 2010. Dkt. 80.
of Labor. The provisions described in (1)–(3) were remanded without vacatur; the
provision described in (4) was vacated and remanded.
On January 24, 2011, the plaintiffs filed a Motion for an Order Enforcing the
Judgment. Dkt. 103. On April 18, 2011, the plaintiffs filed a Request for Expedited
Consideration, dkt. 113, which the DOL opposed on May 5, 2011, dkt. 116. A portion of
plaintiffs’ motion to enforce was addressed in this court’s Memorandum and Order of
June 16, 2011. Dkts. 119, 120. The remaining portion of that motion—which asks the
court to “set a date certain by which DOL must promulgate new final regulations”
addressing the four invalidated provisions described above—is currently before the court.
On March 18, 2011, the DOL published a Notice of Proposed Rulemaking
(NPRM) addressing, inter alia, the four invalidated provisions described above. See 76
Fed. Reg. 15130 (DOL) (Mar. 18, 2011). The comment period for the NPRM ended on
May 17, 2011. Id. The DOL has stated that it “expects to publish a final rule on or about
December 15, 2011.” Dkt. 116 at 4; see also Ex. A ¶¶ 3, 7 (dkt. 116). The plaintiffs have
argued that “a realistically appropriate deadline for promulgation of final regulations as to
these issues would be September 14, 2011.” Dkt. 113 at 7.
When this court invalidated various H-2B regulations, it explicitly set a deadline
for the promulgation of certain revised regulations—i.e., those governing prevailing wage
determinations. See dkt. 81. But the court did not set a deadline for revisions of the four
provisions described above, and the plaintiffs have provided no compelling justification
for imposing a deadline at this juncture. Instead, plaintiffs have simply stated that
“[f]ailure to establish a legal deadline for promulgation of final regulations as to these
issues could result in significant delay . . . which would have an adverse impact on
domestic workers.” Id. Such a generalized desire for expediency is insufficient to
warrant judicial intrusion into the DOL’s rulemaking timetable. Cf. Comite de Apoyo a
Los Trabajadores v. Solis, No. 09-240, 2010 WL 3431761, at *25 (E.D. Pa. Aug. 30,
2010) (setting 120-day deadline for promulgation of new prevailing wage regulations
because (1) the invalid rule suffered from a “serious shortcoming”; and (2) the wage
regulations are of “central importance” (citing Rodway v. USDA, 514 F.2d 809 (D.C. Cir.
Moreover, the plaintiffs disregard the fact that the NPRM in question addresses
several other facets of the H-2B program aside from the four provisions at issue here.
See, e.g., 76 Fed. Reg. 15130, 15149 (proposal to create national electronic job registry
for all H-2B job orders); id. at 15149–53 (proposal to overhaul regulations governing
recruitment of domestic workers); id. at 15155 (proposal to adjust standards for
debarment of H-2B employers). Thus, plaintiffs’ requested relief would amount to an
instruction to the DOL to carve a sub-rule out of the NPRM, to filter out those comments
relevant to the sub-rule, and then to promulgate the final sub-rule on an expedited basis.
This intrusion into the rulemaking process cannot be justified merely because the
plaintiffs would like the DOL to act more quickly. See, e.g., Fed. Power Comm’n v.
Idaho Power Co., 344 U.S. 17, 21 (1952) (the power “‘to affirm, modify, or set aside’ . . .
‘in whole or in part’ . . . is not power to exercise an essentially administrative function”
(quoting APA § 706)). Accordingly, the remainder of plaintiffs’ Motion for an Order
Enforcing the Judgment will be denied. An appropriate order accompanies this opinion.
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