Selected Court decisions related to BALCA and OALJ immigration proceedings

PASADENA TYPEWRITER AND ADDING MACHINE CO., INC. v. USDOL, CV 83-5516 AAH (T)

• Order Adopting Reports and Recommendations of Magistrate (Mar. 26, 1984) HTML
• Judgment (Mar. 26, 1984) HTML
• Supplemental Report and Recommendation of Magistrate (Mar. 21, 1984) HTML
• Report and Recommendation of Magistrate (Feb. 17, 1984) HTML

COASTAL PIPELINE PRODUCTION OF NEW YORK v. GONZALES, 04-CIV-8252 [relates to 2002-INA-258]

• Memorandum and Order (S.D.N.Y. Feb. 27, 2006) PDF

INTERIOR DEVELOPERS, INC. v. CHAO, Civ. No. 06-1368 [relates to 2004-INA-37]

• Order Granting Defendant's Motion for Summary Judgment (D.Puerto Rico Nov. 9, 2007) PDF

MALNATI ORGANIZATION, INC. v. USDOL, No. 1:07-cv-07088 [relates to 2007-INA-35 through 52]

• Memorandum and Order (N.D.Ill. July 2, 2008) PDF

RANKIN LANDSCAPING, INC. v. USDOL, No. 1:08-cv-00244 [relates to 2007-INA-57]

• Memorandum Opinion (E.D.Va. Feb. 3, 2009) PDF

POWELL ELECTRICAL MANUFACTURING CO. v. SOLIS, No. 3:07-cv-02173 [relates to 2009-INA-2]

• Memorandum Opinion and Order (N.D.Tx. Apr. 13, 2009) PDF

DURABLE MANUFACTURING CO. v. USDOL, Employment and Training Administration, No. 08-cv-02782

• Memorandum Opinion and Order (N.D.Ill. Nov. 4, 2008) PDF

DURABLE MANUFACTURING CO. v. USDOL, Employment and Training Administration, No. 08-4122

• Opinion (7th Cir. Aug. 18, 2009) PDF

GENTIS, INC. v. USDOL, No. 09-CV-5490

• Opinion (E.D.Pa. Jan. 11, 2011) PDF

TIPYASOTHI v. SOLIS, No. 11-CV-00304

• Order Granting Defendant's Motion to Dismiss (W.D.Wash. Jan. 24, 2012) (retroactive effect of 20 C.F.R. § 656.30(b) - validity period of granted certification) PDF

COUNTRY LANDSCAPING & SUPPLY, INC., No. 1:12-cv-04309 (N.D. Ill. Jan. 31, 2013) (case below 2011-PER-266) PDF

Department of Labor's decision to deny permanent labor certification based on failure of Notice of Filing to include the employer's name and location of employment found not to be arbitrary, capricious or otherwise contradictory to applicable regulations.

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS v. SOLIS, No. 09-240 (E.D.Pa. Mar. 2013) PDF

District Court permanently enjoins the Department of Labor from granting H-2B labor certifications using the "2008 Wage Rule," 73 Fed. Reg. 780201-01, 78056 (as codified at 20 C.F.R. § 655.10(b)(2)) (Dec. 19, 2008).

BAYOU LAWN & LANDSCAPE SERVICES v. SECRETARY OF LABOR, 713 F.3d 1080 (11th Cir. Apr. 1, 2013) (2013 U.S. App. LEXIS 6524) PDF

Eleventh Circuit affirms district court's preliminary injunction (Bayou Lawn & Landscape Servs. v. Solis, No. 3:12-cv-00183 (N.D. Fla. Apr. 26, 2012) (2012 U.S. Dist. LEXIS 69297) prohibiting enforcement of DOL's 2012 H-2B non-agricultural worker regulations.

HUANG v. ULTIMO SOFTWARE SOLUTIONS, INC., No. 12-cv-785 (N.D.Cal. June 5, 2012) (case below ARB Nos. ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11) PDF

SUIT TO ENFORCE H-1B AWARD AGAINST EMPLOYER; DISTRICT COURT DISMISSES FOR LACK OF JURISDICTION WHERE DOL PROCEEDINGS WERE NOT YET COMPLETE WHEN SUIT FILED AND BECAUSE THE APA ONLY AUTHORIZES SUIT AGAINST A GOVERNMENT AGENCY AND NOT A PRIVATE COMPANY

In Huang v. Ultimo Software Solutions, Inc., No. 12-cv-785 (N.D.Cal. June 5, 2012) (case below ARB Nos. ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), appeal filed, No. 12-17605 (9th Cir.), the Plaintiff brought suit seeking to enforce the ARB's order affirming the ALJ's finding in favor of the Plaintiff on a H-1B complaint. Because the DOL proceedings had not yet been completed at the time the Plaintiff filed his district court complaint, and because the APA authorizes suit against a government agency, not a private company like the Defendant, the court found that it lacked jurisdiction and granted the Defendant's motion to dismiss.

GUPTA v. HEADSTRONG, INC., No. 12-cv-06652 (SDNY Aug. 30, 2013) (Memorandum Opinion and Order) (case below ARB Nos. 11-065, 11-008, ALJ No. 2011-LCA-38) PDF

Plaintifff sought declaratory judgment regarding the timeliness of his LCA complaint; Complaint had been reopened by the Wage and Hour Division, and therefore he must exhaust his administrative remedies before proceeding in federal court

G.H. DANIELS III & ASSOCIATES, INC., No. 12-cv-1943 (D.Colo. Sept. 17, 2013) (Order Granting Defendant's Motion to Dismiss) (case below 2012-TLN-00037) PDF

• DHS did not exceed its statutory authority when it delegated rulemaking authority to DOL to publish H-2B rules
• It is reasonable for DHS consult with DOL and require employers to receive a labor certification from DOL
• DOL has rulemaking authority with regard to the H-2B program
• DHS has not improperly delegated to DOL the authority to act as the final decision maker regarding approval of H-2B visa applications
• DOL did not clearly err in finding that the Plaintiff's pre-filing recruiting efforts identified a travel requirement that was significantly more burdensome than the actual travel identified in its amended application.
• Fact that the Plaintiff previously received a labor certification does not entitle it to relief from DOL's denial of certification

CAMO TECHNOLOGIES, INC., No. 2:12-cv-06050 (D.N.J. Oct. 18, 2013) (Opinion granting Plaintiff's motion to set aside ARB decision) (case below ARB No. 11-026, ALJ No. 2010-LCA-23) PDF

The district court found that the ARB's finding of a "willful failure" was arbitrary and capricious. "The weight of the evidence supported the ALJ's finding that CAMO actually did believe that documenting its efforts to post LCA notices at worksites out of its control demonstrated compliance with the LCA Notice Requirements." "Knowledge of the LCA Notice Requirements themselves and knowledge that particular conduct is violative of the LCA Notice Requirements are not the same thing. The ARB correctly concluded that CAMO officials had been put on notice of the LCA Notice Requirements. However, the ARB ignored the weighty evidence that CAMO believed documenting its attempts to post at third-party worksites was an acceptable practice where the clients in control of those worksites refused to cooperate." "[T]he regulations clearly do not permit DOL to impose liability on an employer where the employer actually believed its conduct was permissible." "The DOL cannot impose liability for a negligent violation, and therefore, the ARB's Decision and Order should be set aside."

HUANG v. ADMINISTRATIVE REVIEW BOARD, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11) PDF

H-1B WORKER'S CHALLENGE TO SIZE OF H-1B BACKPAY AWARD FOR RETALIATION

EMPLOYER IS AN INDISPENSABLE PARTY

WORKER NOT ENTITLED TO EXPUNGMENT OF RECORDS

FRONT PAY NOT WARRANTED BEYOND EXPIRATION OF H-1B VISA

TAX CONSEQUENCES OF LUMP SUM AWARD MUST BE PROVED

WORKER NOT ENTITLED TO RAISES IF NOT SPECIFIED IN LCA

MEDICAL DAMAGES MUST BE PROVED

PUNITIVE DAMAGES NOT AUTHORIZED BY STATUTE

WAGE AND HOUR DIVISION ADMINISTRATOR IS NOT REQUIRED TO PARTICIPATE BEFORE THE ARB

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Aug. 8, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the Petitioner (Huang) challenged parts of the Administrative Review Board (ARB)'s ruling affirming the ALJ's decision that Huang was entitled to receive over $150,000.00 from his former employer, Ultimo Software Solutions, Inc. Huang sought before the district court an order directing the ARB to change its ruling, including a larger award for front pay, back pay, and pain and suffering. Huang also sought an award of punitive damages of $5,000,000.00 and expungment of government records about his employment. Huang further challenged the interest calculation on the award, and alleged that the Wage and Hour Administrator had a statutory duty to participate directly in the administrative proceedings and failed to perform that duty. The court granted the ARB's motion to dismiss.

Employer as indispensable party in APA suit against the agency where relief sought exceeds amount ordered to be paid by the ALJ and the ARB

The court found that the employer was an indispensable party to the action because, although this was an APA suit against the ARB, the relief sought would require the employer to pay much more than ordered by the ALJ and the ARB. The court stated that Huang would have to amend his complaint to add the employer and to add factual allegations sufficient to establish personal jurisdiction. The court found, however, that given that the complaint was dismissed for other reasons, amendment of the complaint was futile.

Plaintiff not entitled to order for expungment of record about his employment

The court dismissed the request for a court order of expungment of documents because such relief had not been requested before the ALJ, and because Huang had not identified a legal or factual basis for such a court order.

Employer does not have liability for front pay beyond date of expiration of H-1B visa

The court dismissed the claim for front pay because the ALJ had ordered payment of back pay up to the date that Huang's H-1B visa expired, and there was no basis to find that Huang could have continued work for the employer after that date.

Compensatory damage award for tax consequences of a lump sum damages payment not awarded where record did not contain competent evidence of amount of increased tax liability

The court dismissed the claim for increased compensation for the tax consequences of a lump sum damages payment because the employer had not yet made the payment, the amount of any increased tax was not known and competent evidence of such was not shown to be in the administrative record.

Back pay liability is limited to rate submitted in H-1B visa application; no liability for promised raise not provided for in LCA

The court dismissed a claim for an increase in the back pay award based on a 5-10% annual raise Huang alleged the employer promised him. The court stated:

• The H-1B visa statute does not require compensation for expected raises that go beyond the commitments stated in the employer's LCA. The LCA is submitted as part of a prospective employer's application for an H-1B visa on the prospective employee's behalf and sets out the terms and conditions of employment. See, e.g., Kersten v. LaGard, Inc., ARB No. 06-111, ALJ No. 2005-LCA-017, at 2 (ARB Oct. 17, 2008). Huang does not allege that his LCA provided for the 5-10% annual raise he seeks. Huang has alleged no legal or factual basis to require Ultimo to pay amounts beyond what it specified in the LCA.

Slip op. at 12-13.

Claim for medical damages - failure to show that ALJ and ARB abused discretion in denying claim

The court dismissed Huang's claim in his second amended complaint that he was entitled to compensatory damages for consequences to his health. The court found that Huang had failed to show that the ALJ or the ARB erred in finding that Huang had not presented sufficient evidence or identified a legal basis to justify medical damages.

Claim for punitive damages - no statutory or regulatory authority

The court dismissed Huang's claim that he should have been awarded punitive damages because the H-1B visa whistleblower protection statute and regulations do not authorize such an award.

Claim that the Wage and Hour Division Administrator was required to participate before the ARB

The court dismissed Huang's claim that the ARB should have required the Wage & Hour Administrator to participate in the DOL proceedings because Huang had identified no legal basis for such a requirement and had not alleged that he was prejudiced by the Administrator's absence. The court noted that Huang received more than the original compensation estimate, which the Administrator would presumably have defended.

Interest Calculation

The court dismissed Huang's claim that the interest award was miscalculated. The ALJ had ordered the Wage and Hour Division to calculate pre- and post-judgment interest on the damages award, and the court found that Huang had not alleged any plausible inconsistency between the interest found owed and the ALJ's award.

HUANG v. ADMINISTRATIVE REVIEW BOARD, USDOL, No. 12-cv-35 (S.D.Tx. Dec. 5, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11) PDF

LATE FILING OF MOTION TO DISMISS BY GOVERNMENT; PREJUDICE TO PLAINTIFF IS NOT ESTABLISHED MERELY BECAUSE THE COURT CONSIDERED THE MOTION

In Huang v. Administrative Review Board, USDOL, No. 12-cv-35 (S.D.Tx. Dec. 5, 2013) (case below ARB No. 09-044, 09-056, ALJ No. 2008-LCA-11), the court denied the Plaintiff's motion for reconsideration of the court's decision affirming the Administrative Review Board's decision. Among other rulings, the court rejected the Plaintiff's claim that the court erred in striking his motion to dismiss the ARB's motion to dismiss as untimely. The ARB's motion had been one day late, but the court had denied the Plaintiff's motion to dismiss on the ground that Huang had not shown that he was prejudiced. In his motion for reconsideration, the Plaintiff claimed the ruling was erroneous because he was prejudiced by the late filing in that the court considered the arguments it presented. The court wrote: "This not prejudice, as a matter of law. [The Plaintiff] has not shown how he was unduly prejudiced by having the motion to dismiss filed 47 days instead of 45 days after he filed his first amended complaint. [The Plaintiff] was given the full amount of time to respond to the motion and did file a response. This claim is not a basis for relief." Slip op. at 3-4.

LITTLE v. SOLIS, No. 13-cv-00046 (D.Nev. Jan. 27, 2014) PDF

SHEEPHERDERS' ASSOCIATION FOUND TO BE A JOINT EMPLOYER OF OVER 800 H-2A WORKERS WAS NOT ENTITLED TO FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT IN SUIT CHALLENGING DOL'S SUBSTANTIAL INCREASE TO ADVERSE EFFECT WAGE RATE

In Little v. Solis, No. 13-cv-00046 (D.Nev. Jan. 27, 2014), individual sheep producers and organizers of sheep producers charged that a Federal Register notice that substantially raised the adverse effect wage rate of sheepherders in several Western States was arbitrary and capricious in violation of the APA. By stipulation, the plaintiffs withdrew without prejudice their motion for a TRO and preliminary injunction, and DOL agreed not to implement or enforce the new wage rates until a court order resolved the matter. DOL later issued a new Federal Register notice setting the AEWRs back to their previous levels while the SWAs collected new wage data. Eventually, the district court action was denied as moot. The Western Range Association's (WRA) then petitioned for fees and costs under the Equal Access to Justice Act (EAJA). One factor required to be a "party" that may recover fees and costs under the EAJA is that the plaintiff did not have more than 500 employees at the time the civil action was filed. See 28 U.S.C. § 2412(d)(2)(B)(ii). Applying the test for determining whether an entity is a FLSA employer, the court found that WRA was a joint employer of the H-2A sheepherders and therefore not eligible to recover under the EAJA because it had more than 500 employees (mostly H-2A workers) at the time of filing of the instant action.

LOUISIANA FORESTRY ASSOCIATION INC. v. SECRETARY OF LABOR, No. 12-4030 (3rd. Cir. Feb. 5, 2014) PDF

USDOL DID NOT EXCEED ITS AUTHORITY WHEN IT PROMULGATED A RULE IN 2011 FOR CALCULATION OF H-2B PREVAILING WAGES; THE FOUR-TIER WAGE METHODOLOGY OF 8 U.S.C. § 1182(p)(4) APPLIES ONLY TO THE H-1B PROGRAM, AND DOL DID NOT EXCEED ITS AUTHORITY IN ELMINATING THAT METHODOLOGY IN THE 2011 RULE FOR THE H-2B PROGRAM

In Louisiana Forestry Association Inc. v. Sec'y of Labor, No. 12-4030 (3rd Cir. Feb. 5, 2014), the Appellants, a group of associations representing employers in non-agricultural industries, claimed that the USDOL exceeded its authority by promulgating regulation governing the calculation of the minimum wage a U.S. employer must offer in order to recruit foreign workers under the H-2B visa program. The Third Circuit found that the regulation was validly promulgated:

•    We ... reject Appellants' contention that the 2011 Wage Rule was promulgated pursuant to an unlawful subdelegation of the DHS's authority to administer the H-2B program. We hold, instead, that the 2011 Wage Rule was issued pursuant to the DHS's permissible "conditioning" of the grant of H-2B petitions on the advice of the DOL pursuant to the DHS's charge from Congress to "determine[]" H-2B visa petitions "after consultation with appropriate agencies of the Government." 8 U.S.C. § 1184(c)(1).

Slip op. at 40. The court acknowledged that its decision might create a split between our the Third and the Eleventh Circuit. See Bayou Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 (11th Cir. 2013) (in review of a preliminary injunction of the 2011 Wage Rule, the Eleventh Circuit rejected the DOL's argument that it has rulemaking authority in the context of the H-2B program pursuant to a lawful conditioning by DHS of its authority to grant or deny H-2B visa petitions). The court also rejected that Appellants' argument that even if the DOL has general rulemaking authority, it exceeded that authority when issuing the 2011 Wage Rule based on several procedural and substantive challenges under the APA and INA. Finally, the court rejected the Appellants' substantive challenge to the 2011 Wage Rule. The Appellants contended that section 1182(p)(4) of the INA required the DOL to use the four-tier wage methodology from the H-1B program as the prevailing wage calculation mechanism in the H-2B program and erred by eliminating the four-tier structure from the wage calculation regime. The court found that read in context, "it is abundantly clear that section 1182(p)(4)'s requirement that the DOL use the four-tier methodology applies only to the H-1B program." Slip op. at 52.

BAIJU V. U.S. DEPT. OF LABOR, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished) (case below ARB No. 10-094, ALJ No. 2009-LCA-45) PDF

See also Baiju v. USDOL, No. 14-394 (2d Cir. May 29, 2014)(appeal dismissed because it lacks an arguable basis in law or fact) PDF

BACK PAY LIABILITY UNDER LABOR CONDITION APPLICATION WHERE EMPLOYER-SURVEY DERIVED PREVAILING WAGE DETERMINATION WAS INVALID; EMPLOYEE IS ENTITLED TO WAGE RATE DETERMINED BY EMPLOYMENT AND TRAINING ADMINISTRATION DURING H1B LCA INVESTIGATION AND NOT TO WAGE RATE DETERMINED BY STATE WORKFORCE AGENCY FOR RELATED PENDING PERM APPLICATION; EMPLOYER IS NOT OBLIGATED TO PAY PERM PWD RATE UNTIL PERM APPLICATION IS APPROVED

LCA "WHISTLEBLOWER" CLAIM AND BURDEN-SHIFTING ANALYSIS; WORKER'S DISRUPTIVE BEHAVIOR IS A LEGITIMATE, NON-DISCRIMINARY REASON FOR ADVERSE ACTION; PRETEXT NOT SHOWN BY DECISION OF STATE UNEMPLOYMENT INSURANCE BOARD, WHICH HAD NO PRECLUSIVE EFFECT

MOTION BY H1B WORKER FOR COURT TO CERTIFY U-VISA; DECISION BY COURT WHETHER TO CERTIFY IS DISCRETIONARY

In Baiju v. U.S. Dept. of Labor, No. 12-cv-5610 (E.D.N.Y. Jan. 31, 2014) (2014 WL 349295) (unpublished), the Petitioner, an H1B worker who filed a complaint with the Wage and Hour Division (WHD) seeking back wages and relief under the H1B employee protection provision, sought review of an Administrative Review Board (ARB) decision upholding, with modification, an ALJ decision on the matter. The ALJ had found that the H1B employer owed back wages (but not at the rate claimed by the Petitioner), that the employer had effected a bona fide termination of the employment, and that the employer had not retaliated against the Petitioner for protected activity under the Immigration and Nationality Act (INA). The court granted summary judgment in favor of the Department of Labor.

Background

The Petitioner had been hired as an accountant under an H1B labor condition application (LCA) filed by the employer. When it filed the LCA, the employer relied on its own survey for determining the putative prevailing wage of $45,000 per year. The employer then filed a PERM application to sponsor the Petitioner for permanent employment in the U.S. Under the regulations in effect at the time, PERM applicants were required to obtain a prevailing wage determination (PWD )from a State Workforce Agency (SWA) (the current regulations require PERM applicants to obtain the PWD from a USDOL prevailing wage center). The SWA rendered a PWD of $72,571 a year. The employer obtained an opinion from an immigration attorney that the SWA PWD for the PERM application did not need to be paid until the PERM application was approved. The Petitioner believed that he was entitled to receive the SWA-determined PWD for his work under the LCA, and starting petitioning the employer for a raise. The employer found the manner of the petition to be disruptive and aggressive. After repeatedly informing the Petitioner that he was not entitled to the SWD-determined PWD until a PERM labor certification was approved, and after informing the Petitioner that he needed to meet with his supervisor to present other reasons he may be entitled to a raise, the employer's executive director met with the Petitioner. In this meeting, the Petitioner stated that he was unwilling to perform his job duties under the current wage rate. After the executive director told the Petitioner that such unwillingness meant that the employer would have to terminate his employment, the Petitioner relied "You don't terminate me. I terminate you." The employer then terminated the employment for unprofessional behavior. The Petitioner filed an internal appeal, but the termination was upheld. The employer then informed USCIS of the termination of employment, and withdrew the PERM application. The Petitioner filed a complaint with the WHD. In the course of its investigation, the WHD determined that the employer's survey for the LCA PWD was invalid under regulatory criteria. Thus, the WHD, following regulatory procedure, obtained a wage determination from the Employment and Training Administration (ETA). Using the ETA PWD, the WHD found that the employer owed $377.28 in back wages. The Petitioner asked for an ALJ hearing. The ALJ affirmed the WHD back wage determination, found that the employer had effected a bona fide termination of the LCA employment, and found no whistleblower retaliation. As noted above, the ARB affirmed the ALJ's decision, except that unlike the ALJ, the ARB found that the Petitioner's complaints about the employer's refusal to pay the SWA PWD were protected activity.

Local rule requiring notice to pro se litigant of consequences of failing to respond to a summary judgment motion; failure to provide notice excused where it was clear that the pro se litigant understood his obligations in response

When filing its motion for summary judgment, the Department of Labor failed to provide, as required by local rule, a notice to the pro se Petitioner of the consequences of failing to respond to a summary judgment motion. However, the employer had provided the notice. Moreover, it was evident from the Petitioner's own motion for summary judgment, his opposition papers, and the numerous citations he made to the administrative record, that he fully understood that he was required to deny factual allegations and cite to the record in support of those denials. The court thus found that the Petitioner had sufficient notice, and that the Department of Labor was excused for its failure to comply with the local rule.

Wage rate issues

On appeal, the court first addressed the Petitioner's argument that the employer had lied about conducting its own survey to determine the prevailing wage rate for the H1B visa. The court, however, found that substantial evidence supported the ARB's determination (affirming the ALJ's finding) that the employer had relied on its own survey when filing the LCA.

The Petitioner's central argument was that he was entitled to back wages under the SWA PWD rate. The court reviewed the applicable regulations, and found that the WHD properly requested a PWD from ETA in course of its LCA investigation. The court also found that under the applicable regulations, an employee sponsored under the PERM regulations for permanent employment in the U.S. is only entitled to the prevailing wage rate once the employee becomes a permanent resident. (During the application process, the sponsoring employer only needs to establish the ability to pay the SWA-determined prevailing wage). Accordingly, the court found that the Petitioner's claim that he was entitled to the rate of pay under the SWA PWD was without merit. Accordingly, the court affirmed the ARB's decision upholding the use of the ETA wage rate to determine back wages owed.

Whistleblower issues

The Petitioner argued that the ARB overlooked the evidence when affirming the ALJ's determination that the Petitioner failed to show that the employer took adverse action against him because of his protected activity. The ARB found that the employer discharged the Petitioner because he refused to work. The court reviewed the INA and regulatory provisions governing H1B "whistleblower" complaints, and found that the agency had noted in rulemaking that such complaints are subject to the well-established principles arising under other whistleblower laws administered by USDOL. In this regard, the court essentially described the familiar McDonnell-Douglas burden shifting analysis.

In the instant case, the ARB determined that although the Petitioner engaged in protected activity when he challenged the employer's decision not to raise his pay to the SWA-determined prevailing wage rate until the PERM application was approved, the employer articulated a legitimate, non-discriminatory reason for terminating the Petitioner's employment -- that the Petitioner refused to perform his work duties. The court found that substantial evidence supported the ARB's determination.

First, the employer's executive director's testimony, which the ALJ had found credible and supported by the evidence, was that the Petitioner had become disruptive to work of other staff members and had been aggressive in pressing his demands. She testified that when she met with the Petitioner about his behavior, he told her he was unwilling to perform his job duties. The ALJ also found that the Petitioner's reluctance during the hearing to follow instructions and accept adverse ruling supported the credibility of the executive director's recollection of events. Second, the termination letter stated that the termination was for unprofessional behavior, and the personnel review committee upheld the termination decision. The court noted that "It is well-established that firing an employee because he or she is disruptive and refuses to obey instructions constitute[s] legitimate, nondiscriminatory reasons for termination." Slip op. at 35 (citations omitted). Third, the employer continued to support the Petitioner's PERM application in the face of his repeated requests to be paid the SWA-determined wage rate. That the employer did not impose adverse employment actions for these requests supported the ARB's determination that the stated reason for termination was legitimate and nondiscriminatory.

The court also found that the Petitioner did not carry his burden of showing that the employer's stated reason was pretextual. The Petitioner cited a state unemployment insurance appeals board decision finding that he had been discharged for complaining about his wage rate. The court found that it was well-established that the issues involved before an unemployment insurance appeal board and those involved in a retaliation or discrimination claim are entirely distinct, and therefore the unemployment insurance board's decision had no preclusive effect on a later retaliation or employment discrimination claim.

Claim of involuntary servitude

The Petitioner argued that the employer engaged in involuntary servitude by forcing him to work for two different companies: that the employer "threatened me for asking the wages" and "forcefully engaged me in the work of other companies [a section 501(c)(3) affiliate of the employer, not actually two separate companies] for their financial benefit," and eventually "threatened me physical harm and chased me out from my job." Slip op. at 46 (quoting Administrative Record; footnote omitted). The court rejected this contention. The court first noted that the ARB had not discussed a claim of involuntary servitude, and it was not clear that the Petitioner had properly raised such a claim before the ARB. The court found that it was not arbitrary and capricious for the ARB not to discuss the claim because the claim was clearly meritless, there being no evidence that the employer threatened the Petitioner in any way to force him to continue working for it. To the extent that the claim was based on a sub-textual threat of deportation, the court stated that "threats of deportation do not constitute holding an employee in involuntary servitude under 18 U.S.C. § 1584." Slip op. at 48. The court further found that even if it was arbitrary and capricious for the ARB not to discuss the claim, the error was harmless and did not merit a remand for further explanation. Specifically, the claim of involuntary servitude had no bearing on determination of the appropriate wage rate, retaliation, or any other legal issue before the ARB.

Motion to certify U-visa application

Finally, the Petitioner requested the court to certify a Form I-918, Supplement B for his U-visa application. A federal judge that "has responsibility for the investigation or prosecution of a qualifying crime or criminal activity" may certify, by completing and signing Form I-918, Supplement B, that the U-Visa petitioner "has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim." 8 C.F.R. § 214.14(a)(2), (12); 8 U.S.C. § 1184(p)(1). The court noted that the decision to sign a U-visa certification form is discretionary, and declined to grant the Petitioner's request in the instant case "because there is no evidence of any possible pending investigation or prosecution of the qualifying crimes that petitioner alleges." In addition, even assuming that prima facie showing that a defendant had engaged in qualifying criminal activities could be sufficient to merit U-visa certification "the court would still decline certification here because petitioner fails to make a prima facie showing that [the employer] engaged in perjury, involuntary servitude, and retaliation [as alleged by the Petitioner]." Slip op. at 54. In regard to the perjury claim, the court stated "Petitioner's interpretation of documents in the trial record and his disagreement with the credibility determination of the ALJ regarding the testimony of [the Employer's] executive director are insufficient to establish perjury." Slip op. at 54-55.

INTERNATIONAL LABOR MANAGEMENT CORP. v. PEREZ, No. 14-cv-231 (M.D.N.C. Apr. 25, 2014) PDF

DEPARTMENT OF LABOR ORDERED TO PROCESS ALL H-2A AND H-2B APPLICATIONS FILED BY AN AGENT WITHIN THE APPLICABLE STATUTORY AND REGULATORY DEADLINES

In International Labor Management Corp. v. Perez, No. 14-cv-231 (M.D.N.C. Apr. 25, 2014), the Plaintiff was an agent for a several farming and/or agriculture employers participating in the H-2A and H-2B programs. The Plaintiff alleged that after it and its owner were indicted for allegedly submitting fraudulent H-2A and H-2B applications, the Department of Labor began ignoring or otherwise not timely processing applicants filed by the Plaintiff. The Plaintiff alleged that DOL's failure to act within statutorily mandated timeframes to approve these worker applications caused damage both to Plaintiff, as agent for employers, and to Plaintiff's employer-clients. The Plaintiff therefore moved for a temporary restraining order, preliminary injunction, and a writ of mandamus. The court granted the motion in part.

Standing

DOL contended that the Plaintiff lacked prudential standing because it was essentially a middle-man between employers and migrant workers. The court rejected this contention, citing the Supreme Court decision in Lexmark Int'l, Inc. v. Static Control Components, Inc., ____ U.S. ____, ____, 134 S. Ct. 1377, 1386 (2014). The court found that the Plaintiff's business "centers on helping employers navigate regulatory complexities in the H-2A and H-2B programs" and that DOL's actions or inactions have made it unable to conduct that business. Slip op. at 14-15. The court found that the 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" which is sufficient for standing under Lexmark.

The court then turned to whether the Plaintiff made out a case for a TRO, injunction and mandamus. In regard to the likelihood of success on the merits, the court examined the H-2A and H-2B programs separately because, unlike the statutory/regulatory H-2A deadlines, the H-2B timing deadlines are based solely on the regulations.

Court's equitable authority to compel agency to act within statutory and regulatory deadlines

In regard to the H-2A program, DOL cited Brock v. Pierce Cnty., 476 U.S. 253 (1986) and Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003), for the proposition 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." Slip op. at 17. The court found that DOL had conflated the court's inability to divest DOL of jurisdiction with the court's ability to provide equitable relief to ensure compliance with statutory and regulatory mandates. The court held that the deadlines themselves are mandatory, not discretionary, allowing this court to "compel the agency to act." Turning to the question of when and how a federal court may properly enjoin a federal agency, the court examined the reach of the APA, 5 U.S.C. § 706(1). In the instant case, the court found that the deadlines at issue are mandatory, not discretionary, and allow the court to compel agency action. In particular, the court stated 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." Slip op. at 22.

H-2A regulatory enforcement mechanism should be followed rather than ad hoc procedure that causes unfair delays to agent and its clients

In regard to the H-2A program, the court found that the "Plaintiff had 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." Slip op. at 23. DOL argued in regard to the mandamus claim that the claim should fail because its contacting the Plaintiff's client-employers directly to confirm that they had authorized the applications was a reasonable investigative delay in view of the Plaintiff's indictment. The court was not persuaded because the H-2A regulations have an enforcement mechanism at 20 C.F.R. § 655.130(e), and that regulation's audit provision "does not purport to alter the aforementioned timing mechanism for processing the applications." Slip op. at 23. The court found that DOL should proceed through the regulatory investigative process and not in an unauthorized fashion that unfairly harms both the Plaintiff and its innocent clients.

Purely regulatory non-discretionary deadlines are subject to court's equitable power

In regard to the H-2B program, the court found that although the timing deadlines are entirely regulatory, "the Accardi doctrine provides 'that when an agency fails to follow its own procedures or regulations, that agency's actions are generally invalid.'" Slip op. at 25, quoting 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 court found that the seven-day deadline to either accept an application or notify an employer of the application's deficiency was non-discretionary, and subject to the same equitable relief as the H-2A statutory counterparts.

Loss of reputation, goodwill, and confidence of client, is sufficient to establish irreparable harm for purposes of injunctive relief; prior practice of sending questionnaires to clients was not sufficient to establish irreparable harm

In regard to the question of irreparable harm, the court found that the Plaintiff's evidence of specific financial loss was speculative, but that the Plaintiff had suffered severe and substantial harm by way of loss of reputation, loss of goodwill, and loss of the confidence of its clients. The court also found that the Plaintiff suffered indeterminate administrative expense in addressing DOL delays. These damages, the court found, constituted irreparable harm for purposes of injunctive relief.

The court did not find that DOL's unauthorized sending of questionnaires to the Plaintiff's clients to constitute the type of irreparable harm to provide a basis for injunctive relief, at least where DOL had voluntarily ceased sending such questionnaires. The court reserved the right to reopen the issue if the practice continued and caused delay in processing applications.

Unrecoverable economic losses to clients constitutes irreparable harm

The Plaintiff provided affidavits from clients describing farm and business harms caused by the failure to receive H-2A workers in a timely fashion. The court found that such lost farming revenues constitute irreparable harm, as those losses are not recoverable against the United States. Because of findings of direct irreparable harm to the Plaintiff, the court did not address the question of whether an agent may rely upon the irreparable harm to its principal to secure relief.

MENDOZA v. PEREZ, No. 13-5118 (D.C. Cir. June 13, 2014) (2014 WL 2619844) PDF

TEGLs FOUND TO BE LEGISLATIVE RULES MANDATING NOTICE AND COMMENT RULEMAKING

In Mendoza v. Perez, No. 13-5118 (D.C. Cir. June 13, 2014) (2014 WL 2619844), the plaintiffs, former hearders, filed an action alleging that the USDOL violated the Administrative Procedure Act by issuing special procedures without notice and comment rulemaking. Specifically, in 2011, the Department of Labor published in the Federal Register two Training and Employment Guidance Letters (TEGLs) providing special procedures for certain H-2A certifications, such as herding. The court rejected the defendants' argument that the TEGLs were interpretative rules exempt from notice and comment procedures because the Defendants could not point to any statute or regulation that creates substantive standards interpreted by the TEGLs. Rather, the TEGLs endeavored to implement the statute - the effect of a legislative rule. DOL alternatively argued that the TEGLs were exempt from notice and comment procedures because they are "rules of agency organization, procedure, or practice." 5 U.S.C. § 553(b). The court found that although stated at a high level of generality the TEGLs seem procedural, a more practical account of the rules indicated that they create substantive requirements, such as setting a minimum wage an employer must offer U.S. workers before it can obain an H-2A certification. The court held that the TEGLs were subject to notice and comment requirements because they possess all the hallmarks of a legislative rule. The court remanded for hte the district court to consider whether vacating the TEGLs would have disruptive effect on the hearding industry and how quickly DOL might be able to promulgate new H-2A for herding operations.

GUPTA v. PEREZ, No. 14-cv-01102 (N.D.Cal. June 24, 2014) (2014 WL 2879743) (case below ARB Nos. 11-041, 12-050, ALJ No. 2010-LCA-24) PDF

The U.S. District Court for the Northern District of California granted the Defendant's motion, joined by the USDOL, to transfer the case to the District of New Jersey.

UNITED STATES v. TISCHLER, No. 13-2479 (2d Cir. July 17, 2014) (unpublished) PDF

The Second Circuit affirmed the convictions of employees of the Earl David law firm who had assisted the law firm in massive immigration fraud, and of persons who acted as phony sponsors on permanent alien labor certification applications at the instigation of that law firm. U.S. v. Tischler, No. 13-2479 (2d Cir. July 17, 2014) (unpublished). The court noted that the evidence "showed that, in return for a fee from the David Firm of $400 per successful application, Tischler sponsored hundreds of aliens. Tischler confirmed in numerous telephone calls with the DOL that he in fact intended to hire these aliens, while expressing to a David Firm employee that he was nervous about these calls. Tischler's companies ultimately did not, and were not financially able to, pay the aliens they were allegedly sponsoring."

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA) v. PEREZ, No. 14-2657 (E.D.Pa. July 23, 2014), appeal filed, No. 14-3557 (3d Cir. Aug. 8, 2014) (expedited) PDF

In Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez, No. 14-2657 (E.D.Pa. July 23, 2014), Plaintiffs sought judicial review of certain aspects of DOL's administration of wage benefits for H-2B workers. Specifically, Plaintiffs challenged DOL's use of 2009 Wage Guidance to calculate prevailing wages to be paid to H-2B workers based on private survey data submitted by employers under 20 C.F.R. § 655.10(f) (2008). Plaintiffs alleged that use that guidance (which Plaintiffs maintained was designed to implement the skill level definition of prevailing wages) contravenes the court's March 21, 2013 order (which permanently enjoined use of the "skill level" methodology for determining prevailing wages under 20 C.F.R. § 655.10(b)(2) (2008) and vacated the text, "at the skill level," from that subsection of the regulation). Plaintiffs also argued that the guidance violated the APA. The Plaintiffs also asserted that the regulation permitting private surveys, § 655.10(f), violates the APA, Defendants argued that the issues were not ripe for adjudication, and asked for remand for the agency to complete contemplated, comprehensive rulemaking on the issues. The court concluded that "the agency should be permitted to consider the issues presented here as part of the agency's planned rulemaking, without any intervening disruption of the H-2B program from this Court." Slip op. at 5. The court wrote:

•    Defendants have represented to this Court and the 2014 H-2B Notice suggests that Defendant the Secretary of Labor will consider the very issues presented here during the rulemaking planned for 2014-2015. And the Notice suggests that the regulatory policy choices for rulemaking will comprehend many, if not all, of the Plaintiffs' concerns about establishing fair, equitable prevailing wages based on reliable wage survey data. It is highly likely that the planned rulemaking will resolve the questions presented here. However, Defendants have not yet fully developed and formalized the policies and choices to be made. Although Plaintiffs would prefer a more speedy resolution by judicial intervention, review at this time would only disrupt the agency's work and perhaps prolong the suffering of those Plaintiffs represent.

Slip op. at 15.

[Editor's note: CATA and the other plaintiffs appealed the district court's decision to the Third Circuit Court of Appeals. Comite de Apoyo a los Trabajadores Agricolas v. Perez, No. 14-3557 (3rd. Cir). The 3rd Circuit has granted expedited consideration of the appeal.]

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA) v. PEREZ, No. 13-7213 (E.D.Pa. July 23, 2014) (2014 WL 3629528) (case below Island Holdings, 2013-PWD-2) (Appeal filed in the 3d Cir., No. 14-4251) PDF

In Comite de Apoyo a los Trabajadores Agricolas (CATA) v. Perez, No. 13-7213 (E.D.Pa. July 23, 2014) (2014 WL 3629528) , Plaintiffs challenged the BALCA decision in Islands Holdings, LLC, No. 2013-PWD-2 (Dec. 3, 2013) (en banc), in which BALCA ruled that the Certifying Officer lacked the authority to issue supplemental PWDs in cases where the DOL had already approved an application for labor certification and determined a prevailing wage. Both Plaintiffs and Defendants (the Secretary of Labor and the Assistant Secretary for ETA) argued before the court that BALCA's holding should be vacated as contrary to the court's March 21, 2013 vacatur order requiring DOL to replace invalid 2008 wage rates because BALCA's decision would allow employers to continue using the vacated wage rates after issuance of DOL April 24, 2013 Interim Final Rule. The court, however, did not decide this issue. Rather, the court found that Plaintiffs lacked standing because DOL has stayed action on the contested supplemental PWD, likely until planned rulemaking in 2014-15. The court also found that there had not yet been final agency action on the matter. The court wrote:

•    BALCA's rulings as to the three SPWDs issued on May 6, 2013, to the employer, Island Holdings LLC, might be viewed as final vis-a-vis that employer. Nonetheless, those rulings are not sufficiently final to establish a case-or-controversy here. The DOL's CO has not yet vacated those SPWDs as BALCA instructed the CO to do on remand. Instead, the agency has stayed those instructions. See, e.g., Pls. Ex. P (Doc. No. 17-2 at 140-141). The agency's stay of further action as to all contested SPWDs pending intra-agency review calls into question the finality of BALCA's rulings in Island Holdings. It is Defendant the Secretary of Labor, and not BALCA, that ultimately makes the policies and rules governing H-2B prevailing wages.

Slip op. at 16 (footnote omitted). In addition, the court found that Plaintiffs's claims were not ripe, finding that "the agency's stay of action on BALCA's decision, Island Holdings, is tentative action that warrants judicial deference," Id. at 18, and that "review at this time would disrupt the agency's work." Id. at 19. Accordingly, the court dismissed Plaintiffs's action "without prejudice to decision on the merits of a future case or controversy." Id. at 21.

HUANG v. ADMINISTRATIVE REVIEW BOARD, USDOL, No. 14-20006 (5th Cir. Aug. 12, 2014) (per curiam) (unpublished) (2014 WL 3906772) (case below SD Tex No. 12-35; ARB Nos. 09-044, 09-056, 12-071; ALJ No. 2008-LCA-11) PDF

Affirmed judgment of the district court.

KUTTY v. UNITED STATES DEPARTMENT OF LABOR, No. 11-6120 (6th Cir. Aug. 20, 2014) (case below E.D.Tn. 05-cv-510; ARB No. 03-022; ALJ Nos. 2001-LCA-10 to 25) (2014 WL 4085824) PDF

Affirmed judgment of the district court.

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA) v. PEREZ, No. 09-cv-240 (E.D.Pa. Sept. 11, 2014) (2014 WL 4473485) (Appeal filed in the 3d Cir., No. 14-4251) PDF

The Plaintiffs moved to vacate regulations previously held invalid by the court and remanded to agency. The motion was aimed at compelling DOL to engage in rulemaking to fill regulatory gaps created by the court's vacatur. The court held that DOL's decision to continue the effectiveness of 2008 H-2B rules pending resolution of its defense of a 2012 regulation in Bayou Lawn & Landscape Services v. Secretary of Labor, No. 12-cv-183 (N.D.Fla) -- in which DOL was preliminary enjoined from implementing the 2012 regulation, was reasonable and must be accorded deference. The court held that, on the record before it, it would improper to compel the agency to initiate formal rulemaking to replace the invalidated 2008 regulations.

COMPUNNEL SOFTWARE GROUP, INC. v. GUPTA AND PEREZ, No. 14-cv-4790 (S.D.N.Y. Oct. 22, 2014) (case below ARB No. 12-049; ALJ No. 2011-LCA-45) PDF

ARB'S remand order was not final, and therefore not subject to review by the district court.

GREATER MISSOURI MEDICAL PRO-CARE PROVIDERS, INC. v. PEREZ, No. 3_14-cv-05028 (W.D.Mo. Oct. 24, 2014) (case below ARB No. 12-015, ALJ No. 2008-LCA-26) PDF

SCOPE OF WAGE AND HOUR DIVISION LCA INVESTIGATION IS NOT LIMITED TO THE MATTERS RAISED IN SINGLE AGGRIEVED PARTY'S COMPLAINT; UNTIMELINESS OF PART OF ORIGINAL COMPLAINANT'S COMPLAINT DOES NOT REMOVE WHD JURISDICTION OVER OTHER VIOLATIONS REGARDING OTHER EMPLOYEES THAT OCCURRED WITHIN THE LIMITATIONS PERIOD; ARB DID NOT ACT IMPROPERLY IN DENYING REDUCTION OF INTEREST ON AWARD DOES ON LENGTH OF ADMINISTRATIVE PROCEEDING

In Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, No. 3_14-cv-05028 (W.D.Mo. Oct. 24, 2014), the Plaintiff did not contest the ARB's findings that the Plaintiff violated the Immigration and Nationality Act when made deductions from several H-1B employee paychecks for attorney and LCA fees; did not pay any of its H-1B employees for training time; and withheld final paychecks from certain employees. However, the Plaintiff argued on appeal that the Wage and Hour Division Administrator did not have authority to extend the investigation beyond the original complaint filed by a single H-1B employee. The Defendant (the Secretary of Labor) moved for summary judgment finding that the ARB's decision was not arbitrary and capricious or in conflict with the law. The court granted the Defendant's motion, finding that the ARB's decision was reasonable and permissible under the statute and regulations. The ARB had essentially found that the Plaintiff had received notice from the outset about the scope of the WHD investigation, and that neither the statute or regulations restrict the scope of an H-1B investigation to allegations contained in a singel aggrieved party complaint. The court was also not persuaded by the Plaintiff's argument that because the original Complainant's complaint about benching was found to be untimely, then jurisdiction did not exist to investigate other benching violations within the limitations period. The Plaintiff challenged the ARB's award of pre- and post-judgment interest because of the administrative proceedings had taken too long and therefore it should not have to pay for the length of the proceedings. The court, however, found that the ARB's decision not to reduce the interest award was not arbitrary and capricious, and was within the statutory framework and therefore not contrary to law.

COMITE DE APOYO A LOS TRABAJADORES AGRICOLAS (CATA) v. PEREZ, No. 14-3557 (3d Cir. Dec. 5, 2014) PDF

RIPENESS OF H-2B PWD ISSUE FOR JUDICIAL REVIEW; APPELLATE COURT'S AUTHORITY TO REACH MERITS; DOL'S FAILURE TO EXPLAIN CHANGE IN POLICY ON USE OF PRIVATE SURVEYS IN DETERMINING PREVAILING WAGE FOR H-2B CERTIFICATIONS VIOLATES 5 U.S.C. § 706(2)(d); DOL'S POLICY TO CONTINUE TO ALLOW PRIVATE SURVEYS TO BE USED FOR H-2B PWDS EVEN THOUGH SUCH SURVEYS HAD BEEN ACKNOWLEDGED BY DOL TO BE UNRELIABLE VIOLATES 5 U.S.C. § 706(2)(A) BECAUSE IT IS ARBITRARY; DOL'S 2009 WAGE GUIDANCE VIOLATES THE APA BECAUSE IT DIRECTLY CONTRADICTS A CURRENT REGULATORY PREVAILING WAGE DEFINITION

Reversing the district court's determination that the matter was not ripe for judicial review, and finding that it would be proper for it to reach the merits in the interest of judicial economy and because the current administration of the H-2B program is prejudicial to U.S. workers, the Third Circuit in Comite de Apoyo a Los Trabajadores Agricolas (CATA) v. Perez, No.14-3557 (3d Cir. Dec. 5, 2014), held that 20 C.F.R. § 655.10(f) (2008) and the 2009 Wage Guidance (Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Nov. 2009), were arbitrary and capricious and adopted in violation of the Administrative Procedure Act. The court therefore granted the plaintiffs' vacatur request.

The plaintiffs' challenge to the regulation and the guidance was based on DOL's continuing use of private employer surveys using a skill level definition of prevailing wage despite a finding in 2011 rulemaking that such surveys were unreliable and should be used only in extraordinary circumstances. The court found that Section 655.10(f) violated 5 U.S.C. § 706(2)(D) because DOL never explained its policy shifts regarding use of private wage surveys. Prior to 2005, DOL had not considered employer wage surveys in prevailing wage determinations when an applicable governmental wage survey was available. DOL changed that policy in a 2005 Wage Guidance letter which authorized unlimited use of private surveys. That guidance was codified in 2008 in 20 C.F.R. § 655.10(b)(2) and (f). DOL did not explain this change in policy in 2005 or in 2008. In 2011 rulemaking, DOL publicly acknowledged that employer surveys were not generally reliable and were generally provided by employers to lower wages. Congress, however, imposed appropriation riders precluding the 2011 rule from going into effect. DOL issued an Interim Final Rule in 2013 that still allowed unlimited use of private surveys. DOL did not explain why. The court acknowledged that DOL faced considerable difficulty implementing the 2011 rule because of the appropriation riders, but found nonetheless that DOL's failure to explain its policy shifts violated the APA.

The court also found that DOL violated 5 U.S.C. § 706(2)(A) because Section 655.10(f) was substantively arbitrary. Pointing to rulemaking in which DOL endorsed OES surveys as the most accurate means of determining prevailing wage rates for the H-2B program and found that employer surveys are generally unrealistic, the court determined that "DOL has perpetuated a system by which employers are benefitted financially by submitting private surveys to justify wages lower than the OES wages, a practice that the interested parties in this case have well understood." Slip op. at 34. The court also pointed out DOL's policy permits wealthier employers who can afford private surveys to gain an advantage over employers that cannot afford such surveys and end up paying the higher OES prevailing wage. The court noted that failure to consider relevant factors or to provide an adequate explanation for agency action are reasons for a court to find the action to be' arbitrary and capricious.

Finally, the court found that the 2009 Wage Guidance violated the APA because "when evaluating wage surveys based on skill levels pursuant to the 2009 Wage Guidance, DOL directly contradicts the current prevailing wage definition in 20 C.F.R. § 655.10(b)(2) (2013), adopted in response to [a district court decision in 2010 "CATA I"], which rejects skill-level considerations."

In its vacatur order, the court stated:

• We direct that private surveys no longer be used in determining the mean rate of wage for occupations except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification. We note that DOL's existing regulations provide ample alternatives for setting prevailing wages including use of OES surveys. Moreover, DOL has the option of immediately issuing the employer survey portions of the 2011 rulemaking as an interim rule pursuant to 5 U.S.C. §§ 553(b)(B) and (d)(3). That rule offers rational, lawful limits on the use of employer surveys, already has gone through notice and comment, has been funded by Congress in its 2014 authorization, and has been upheld by this Court in Louisiana Forestry, 745 F.3d 653.

Slip op. at 38 (footnote omitted).

Editor's note: On December 9, 2014, ETA, OFLC posted the following notice on its website:

• Effective December 8, 2014, the Department is no longer issuing prevailing wage determinations in the H-2B program based on employer provided wage surveys. This action is in response to the Court order entered December 5, 2014 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, No. 14-3557 (3rd Cir.). The Court's order vacated the portion of the H-2B wage rule (20 CFR § 655.10(f)) and 2009 Wage Guidance permitting the use of such surveys. Therefore, Prevailing Wage Determination Requests currently pending with the National Prevailing Wage Center that seek to utilize employer provided surveys will be given the appropriate Occupational Employment Statistics (OES) wage for the occupation. Employers who wish to utilize a Service Contract Act or Davis Bacon Act wage determination or a wage based on a Collective Bargaining Agreement may request redetermination under 20 CFR § 655.10(g). Employers whose prevailing wage determination was based an employer provided wage survey, but whose H-2B Applications for Temporary Employment Certification have not yet resulted in a final determination by the Chicago NPC, will be notified of their new wage obligation along with their certification letters.

https://www.foreignlaborcert.doleta.gov/

BAYOU LAWN & LANDSCAPE SERVICES v. PEREZ, No. 12-183 (N.D. Fla. Dec. 18, 2014) (2014 U.S. Dist. LEXIS 180137) PDF

FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA VACATES DOL'S 2012 H-2B REGULATIONS AND ENJOINS THEIR ENFORCEMENT

In Bayou Lawn & Landscape Services v. Perez, No. 12-cv-183 (N.D. Fla. Dec. 18, 2014), the Plaintiffs challenged the Department of Labor's authority to issue regulations in 2012 in connection with the H-2B visa program. See Final Rule, 77 Fed. Reg. 10,038 (Feb. 21, 2012). The court found that DOL did not have authority to engage in legislative rulemaking under the H-2B program, vacated the 2012 rule, and permanently enjoined DOL from enforcing the rule. The court noted that an agency's authority to issue regulations is limited to authority delegated by Congress, and that Congress delegated such authority to DHS and not DOL in regard to the H-2B program. The court contrasted the H-2A program regarding which Congress expressly provided DOL with rulemaking authority. The court was not persuaded that DOL's rulemaking authority under the Wagner-Peyser Act afforded it rulemaking authority under the H-2B program, finding that the express delegation for that Act only reinforced that there was a lack of express delegation to DOL for the H-2B program. The court acknowledged that its decision may be at odds with the 3rd Circuit's decision in Louisiana Forestry Ass'n, Inc. v. U.S. Dep't of Labor, 745 F.3d 653 (3d Cir. 2014), in which the court accepted DOL's argument that its rulemaking authority under the H-2B program derives from its consultative role under 8 U.S.C. § 1184(c)(1). The court noted that DOL, however, had acknowledged that this interpretation of "consultation" was rejected by the 11th Circuit in its order affirming the district court's earlier issuance of the preliminary injunction in this case. See Bayou Lawn, 713 F.3d at 1084. ("DHS was given overall responsibility, including rulemaking authority, for the H-2B program. DOL was designated a consultant. It cannot bootstrap that supporting role into a co-equal one.").

PEREZ v. PEREZ, No. 14-cv-682 (N.D.Fla. Mar. 4, 2015) PDF

FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA VACATES DOL'S 2008 H-2B REGULATIONS AND PERMANENTLY ENJOINS THEIR ENFORCEMENT

In Perez v. Perez, No. 14-cv-682 (N.D.Fla. Mar. 4, 2015), the Plaintiff was a U.S. citizen who works as a server and busboy in Palm Beach County, Florida who was adversely affected by DOL's 2008 H-2B regulations. The Plaintiff sought to enjoin DOL's enforcement of those regulations, which were still being enforced by DOL after the court's preliminary injunction in Bayou Lawn & Landscape Servs. v. Solis, No. 3:12-cv-00183 (N.D. Fla. Apr. 26, 2012) (2012 U.S. Dist. LEXIS 69297), aff'd Bayou Lawn & Landscape Servs. v. Sec'y of Labor, 713 F.3d 1080 (11th Cir. 2013), enjoining enforcement of DOL's 2012 H-2B regulations. The Plaintiff agued that the 2008 regulations are invalid because they were issued pursuant to the same claim of authority deemed invalid in Bayou Lawn. The court agreed, stating: The court ruled:

• [T]he issue presented in this case is purely one of law that the Court has already considered and resolved in Bayou Lawn & Landscape Services v. Perez, No. 3:12cv183/MCR/CJK, 2014 WL 7496045 (N.D. Fla. Dec. 18, 2014). Having reviewed the parties' arguments, the Court finds no basis on which to distinguish this case from Bayou Lawn, and thus finds that Perez's motion is due to be granted.

PEREZ v. PEREZ, No. 14-cv-682 (N.D.Fla. Mar. 18, 2015) PDF

FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA ISSUES TEMPORARY STAY OF VACATUR ORDER OF DOL'S 2008 H-2B REGULATIONS

In Perez v. Perez, No. 14-cv-682 (N.D.Fla. Mar. 18, 2015), the court issued an order staying its March 4th Injunction Order and "otherwise [holding] it in abeyance" until April 15, 2015. The order grants DOL's Motion for Limited Relief from the Vacatur Order and Judgment. The court found that the requested temporary relief was appropriate to ensure continued operation of the H-2B program until DHS and DOL can draft a joint interim final rule.

COMPUNNEL SOFTWARE GROUP, INC. v. GUPTA AND PEREZ, No. 14-cv-4790 (S.D.N.Y. Mar. 17, 2015) (case below ARB No. 12-049; ALJ No. 2011-LCA-45) PDF

Dismissal of H-1B worker's counterclaims.

COMPUNNEL SOFTWARE GROUP, INC. v. GUPTA AND PEREZ, No. 14-cv-4790 (S.D.N.Y. Apr. 13, 2015) (2015 WL 1808628; 2015 U.S. Dist. LEXIS 48263) (case below ARB No. 12-049; ALJ No. 2011-LCA-45) PDF

Denial of reconsideration.

GUPTA v. PEREZ, No. 14-cv-4054 (D.N.J. Apr. 27, 2015) (2015 WL 1914654; 2015 U.S. Dist. LEXIS 54519) (case below ARB Nos. 11-041, 12-050; ALJ No. 2010-LCA-24) PDF

Opinion denying Plaintiff's motion for summary judgment and granting the Defendants' motion for summary judgment.

G.H. DANIELS III & ASSOCIATES, INC. v. PEREZ, No. 13-1479 (10th Cir. Nov. 5, 2015) (unpublished) (2015 U.S. App. LEXIS 15689; 2015 WL 5156810) (Amended Order and Judgment) (case below D.Colo. No. 12-cv-1943; ALJ No. 2012-TLN-00037) PDF

The Tenth Circuit held that the statutory language DHS with implementation of the H-2B visa program "after consultation with appropriate agencies of the Government," was not authority for DHS to subdelegate its authority and responsibilities under the H-2B visa program to an outside agency, the USDOL.

CATA v. PEREZ, No. 15-cv-4014 (D.N.J. Dec. 7, 2015) (unpublished) (2015 WL 8228376) PDF

Plaintiffs failed to demonstrate standing to bring an APA challenge to Sections 20 C.F.R. § § 655.10(b)(1)-(2), 655.10(f)(1)(i)-(iii), 655.10(f)(4) of the Final Rule entitled "Wage ethodology for the Temporary Non-Agricultural Employment H-2B Program." 80 Fed. Reg. 24146 (Apr. 29, 2015) ("2015 Wage Rule").

GREATER MISSOURI MEDICAL PRO-CARE PROVIDERS, INC. v. PEREZ, No. 14-3717 (8th Cir. Dec. 14, 2015) (2015 U.S. App. LEXIS 21544; 2015 WL 8591614) (case below W.D. Mo. No. 14-cv-05028; ARB No. 12-015; ALJ No. 2008-LCA-26) PDF

"[T]he Secretary's authority to conduct an initial investigation under § 1182(n)(2)(A) is based upon the Secretary finding reasonable cause to believe the employer's specific misconduct as alleged in the complaint violates the INA. That reasonable-cause finding limits the scope of the initial investigation." Slip op. at 11 (footnote omitted).

PALMER v. TRUMP MODEL MANAGEMENT, LLC, No. 14-cv-8307 (S.D. N.Y. Mar. 23, 2016) (2016 U.S. Dist. LEXIS 51061; 2016 WL 1544740) (related to 2016-LCA-22) PDF

See also Palmer v. Trump Model Management, LLC, 2016-LCA-00022 (ALJ Aug. 18, 2016) (Decision and Order Denying Request for Hearing Due to Lack of Jurisdiction)

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BAYOU LAWN & LANDSCAPE SERVICES v. JOHNSON, No. 15-cv-249 (N.D. Fla. Mar. 25, 2016) (2016 U.S. Dist. LEXIS 50608; 2016 WL 1397834) PDF

VALIDITY OF 2015 H-2B WAGE RULE AND PROGRAM RULE JOINTLY PROMULGATED BY DHS AND DOL

Plaintiffs brought action against DHS and DOL, challenging a 2015 Wage Rule and a 2015 Program Rule, promulgated jointly by the DHS and DOL, in connection with the H-2B visa program. The Plaintiffs alleged that the rules were promuglated in violation of the Administrative Procedure Act (APA) and Regulatory Flexibility Act (RFA). The Plaintiffs sought a TRO, preliminary injunction, and writ of mandamus. The court found, inter alia, that DHS and DOL had good cause to promulgate the 2015 Program Rule without notice and comment, and that the agencies satisfied the APA notice and comment requirement before promulgating the 2015 Wage Rule.

GUPTA v. SECRETARY, USDOL, Nos. 15-3194 & 16-1305 (3d Cir. May 5, 2016) (per curiam) (not precedential) (2016 U.S. App. LEXIS 8313; 2016 WL 2587279) (case below D. N.J., No. 3-14-cv-04054; ARB No. 12-050; ALJ No. 2010-LCA-24) (Opinion) PDF

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GONZALEZ-AVILES v. PEREZ, No. 15-cv-3463 (D.Md. June 17, 2016) (2016 U.S. Dist. LEXIS 86388; 2016 WL 3440581) (Appeal filed in the 4th Cir., Sept. 2, 2016) (Memorandum) PDF

In Gonzalez-Aviles v. Perez, No. 15-cv-3463 (D. Md. June 17, 2016), the court dismissed the suit of H-2B workers against the Secretary of Labor relating to BALCA’s decision in Island Holdings LLC, 2013-PWD-2 (Dec. 3, 2013) (en banc).

The Plaintiffs sought rulings that DOL should not have allowed employers to challenge issuance of supplemental PWDs to BALCA; that the Island Holdings decision was arbitrary and capricious; that DOL has unreasonably delayed issuance of its proposed Declaratory Order; and that the SPWDs are lawful and payable.

The court dismissed the claims on the ground that BALCA's decision was not final agency action given DOL's announcement that it is contemplating issuing a Declaratory Order reversing the BALCA decision. In regard to the unreasonable delay contention, the court found in a footnote that there is no requirement that DOL issue the Declaratory Order.

The Plaintiffs have filed a request that the court issue an order resolving two additional issues still pending before the court to permit the Plaintiff's to obtain a final appealable order.

TAKAMIYA v. DNP AMERICA, LLC, No. 14-cv-10301 (S.D.N.Y. July 25, 2016) (2016 U.S. Dist. LEXIS 97243; 2016 WL 4030861) PDF

WAGE AND HOUR DIVISION'S DECISION NOT TO INVESTIGATE H-1B COMPLAINT BECAUSE IT WAS NOT TIMELY IS NOT REVIEWABLE

The Wage and Hour Division concluded that it would not investigate the H-1B worker's complaint because the alleged acts had occurred more than twelve months earlier, and the complaint was therefore untimely pursuant to 20 C.F.R. § 655.806(a)(5). Further, the WHD informed the Plaintiff that she did not have a right to appeal the decision not to investigate the complaint. The court granted the Defendants motion to dismiss because no private right of action exists to enforce the statutory provisions of the INA upon which the Plaintiff relied, and because the Plaintiff never received an agency decision subject to appeal. The court found that it did not have subject matter jurisdiction.

SUMERU HEALTH CARE GROUP, L.C. v. HUTCHINS, No. 15-5788 (6th Cir. Aug. 1, 2016) (2016 WL 4073303; 2016 U.S. App. LEXIS 14189) (related to Kutty, ARB No. 03-022; ALJ Nos. 2001-LCA-10 to 25) PDF

Action precluded by findings from the USDOL litigation affirmed in Kutty v. United States Dep't of Labor, 764 F.3d 540 (6th Cir. 2014).

CATA v. PEREZ, No. 15-4014 (D. N.J. Aug. 9, 2016) (unpublished) (2016 U.S. Dist. LEXIS 104690; 2016 WL 4212084) PDF

The court denied CATA and other Plaintiffs motion for reconsideration of the court's December 7, 2015 Opinion and Order -- specifically the court's holding that CATA and one other Plaintiff did not have standing to challenge 20 C.F.R. § 655.10(f)(4).

OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC. v. DEPARTMENT OF HOMELAND SECURITY, No. 16-cv-1015 (D. Md. July 28, 2017) (2017 U.S. Dist. LEXIS 117545; 2017 WL 3189446) PDF

ADMINISTRATIVE RECORD FOR REVIEW IN APA CHALLENGE

Order granting in part and denying in part the Plaintiffs' motion to supplement the administrative record in connection with their suit challenging DOL's and DHS's authority to jointly issue certain H-2B regulations in 2015. The Plaintiffs alleged that the Defendant failed to produce a legally sufficient record certification, such as by failing to state that the court had been provided with the entire and "complete" record, failing to establish that the record was considered by the relevant decisionmaker, etc. The Defendants countered that the APA does not require specific language in certifying or identifying an administrative record. The court found that the certification was legally sufficient.

The Plaintiff also sought to supplement the record with materials they obtained in a FOIA request filed with USCIS, with the record pertaining to 2008 regulations, and other materials. The court found that the the documents from the FOIA request were quintessentially deliberative and/or predecisional material, many were not related to either the 2015 or 2008 regulations, and that the Plaintiffs failed to make a sufficient showing the the record was incomplete in regard to those documents. The court, however, ordered the Defendants to produce the record as to the 2008 regulations, reserving the question of whether a challenge to those regulations was time-barred. The court rejected the Plaintiff's contention that a privilege log was required for deliberative materials, the court finding that such materials were not properly part of the administrative record in the first instance.

ALEUTIAN CAPITAL PARTNERS, LLC v. HUGLER, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (case below ARB No. 14-082, ALJ No. 2014-LCA-5) (Opinion and Order) PDF

SCOPE OF DOL INVESTIGATORY AUTHORITY ON LCA COMPLAINT

The district court granted summary judgment to the Defendant on the Plaintiff's APA challenge to the ARB decision in Administrator, Wage and Hour Div. v. Aleutian Capital Partners, LLC, ARB No. 14-082, ALJ No. 2014-LCA-5 (ARB June 1, 2016). Among other issues addressed, the court agreed with the DOL that the INA authorizes DOL to look beyond the four corners of the complaint in formulating an appropriate investigation, and to the extent that such a conclusion conflicts with the Eighth Circuit decision in Greater Missouri, the court respectively disagreed. The court, however, noted that it did not agree that DOL's investigatory authority includes an open-ended look into the employer's general compliance, finding instead that the investigation is limited to subject of the investigation.

GUPTA v. WIPRO LTD., No. 17-1954 (D. N.J. Dec. 15, 2017) (2017 U.S. Dist. LEXIS 206242; 2017 WL 6402636) (unpublished) (related to ARB Nos. 11-041, 12-050; ALJ No. 2010-LCA-24) (Opinion) PDF

CLAIM PRECLUSION

In Gupta v. Wipro Ltd., No. 17-1954 (D. N.J. Dec. 15, 2017) (2017 U.S. Dist. LEXIS 206242; 2017 WL 6402636) (related to ARB Nos. 11-041, 12-050; ALJ No. 2010-LCA-24) , the district court found that claim preclusion applied to the Plaintiff’s suit, which was essentially duplicative of the claims asserted in Gupta v. Perez, No. 14-4054. Although the Plaintiff’s current suit included claims for unjust enrichment, quantum meruit, promissory estoppel, and violations of the FSLA and California Labor Code, the Court noted that “claim preclusion bars not only claims that were actually asserted in a previous action, but also ‘claims that could have been brought.’” Slip op. at 23 (citation omitted) (emphasis as in original).

GUPTA v. HEADSTRONG, INC., No. 17-cv-5286 (S.D. N.Y. Mar. 30, 2018) (2018 U.S. Dist. LEXIS 56008; 2018 WL 1634870) (Opinion and Order) PDF

UNITED STATES v. BEDI and DATALINK COMPUTER PRODUCTS, INC., No. 17-cv-1168 (N.D. N.Y. June 1, 2018) (2018 WL 2455434) (Memorandum Decision and Order [denying Defendant's motion to dismiss]) (enforcement action relating to ARB No. 14-096; 2012-LCA-00057) PDF

G.H. DANIELS III & ASSOCIATES, INC. v. ACOSTA, No. 12-1943 (D. Col. July 6, 2018) (2018 U.S. Dist. LEXIS 112602; 2018 WL 3329547) (Order Denying Plaintiffs' Amended Motion for Attorney's Fees, Costs, and Expenses) (case below 2012-TLN-00037) PDF

The court denied Plaintiffs motion for attorney's fees, costs and expenses pursuant to the Equal Access to Justice Act ("EAJA"). The court found that the Government's pre-litigation and litigation positions were substantially justified.

COMPUNNEL SOFTWARE GRP. v. GUPTA, No. 14-cv-4790 (S.D. N.Y. Sept. 30, 2018) (2018 U.S. Dist. LEXIS 170187) (case below ARB No. 12-049; ALJ No. 2011-LCA-45) (Opinion and Order) PDF, recon. denied, Compunnel Software Group, Inc. v. Gupta, No. 14-cv-4790 (S.D. N.Y. May 20, 2019) (2019 U.S. Dist. LEXIS 84893) (Memorandum Opinion and Order [denying reconsideration]) PDF

The Court granted summary judgment in favor of Compunnel and DOL, finding that there was no genuine dispute of material fact concerning the validity and enforceability of a settlement agreement entered into between Compunnel and Gupta, and approved by the ALJ. The Court found that the agreement contained an unambiguous release of Gupta's claims against Compunnel, both in the Court and in the DOL, and thus Gupta's claims against Compunnel were barred.

DREW'S LAWN AND SNOW SERVICE, INC. v. ACOSTA, No. 3:18-cv-00979 (N.D. Fla. Feb. 11, 2019) (Order) (case below OALJ No. 2017-TNE-00001) PDF

PEREZ INJUNCTION OF ENFORCEMENT PURSUANT TO 2008 H-2A REGULATIONS DID NOT APPLY RETROACTIVELY; ACTION SEEKING TO HOLD DOL IN CONTEMPT DISMISSED WHERE IT WAS UNDISPUTED THAT LABOR CERTIFICATIONS AT ISSUE WERE ISSUED PRIOR TO THE EFFECTIVE DATE OF INJUNCTION

In Drew’s Lawn and Snow Service, Inc. v. Acosta, No. 3:18-cv-00979 (N.D. Fla. Feb. 11, 2019) (case below OALJ No. 2017-TNE-00001), the ALJ had denied Drew's Lawn's motion to dismiss DOL's enforcement action under the 2008 regulations governing H-2B temporary employment certifications. Drew's Lawn's had contended that the enforcement action was enjoined by Perez v. Perez, No. 14-cv-682 (N.D. Fla. Mar. 4, 2015). The ALJ concluded that DOL could enforce the 2008 rule for labor certifications issued prior to the date the Perez injunction took effect. See Administrator, WHD v. Drew's Lawn and Snow Service, Inc., No. 2017-TNE-1 (ALJ Apr. 1, 2018). Drew's Lawn then filed an action in federal district court for alleged violations of the Perez injunction. The district court granted DOL's motion to dismiss because the court had issued a clarification on September 4, 2015 that “the permanent injunction was not intended to, and does not, apply retroactively.” The court stated: "Because it is undisputed that DOL issued Drew’s Lawn’s labor certifications under the 2008 Regulations before the Perez injunction was effective, Drew’s Lawn has failed to show that DOL violated this Court’s injunction in Perez."

GUPTA v. WIPRO, LTD., No. 18-3033 (3d Cir. Apr. 2, 2019) (per curiam) (unpublished) (2019 U.S. App. LEXIS 9627; 2019 WL 1466942) (Opinion) PDF

Case below: D. N.J. No. 17-cv-01954

Related administrative cases: ARB Nos. 11-008; 11-041; 12-049; 12-050; 14-058; 14-086; 15-032 and 15-033; 16-056; ALJ Nos. 2010-LCA-24; 2010-LCA-32; 2011-LCA-39; 2011-LCA-45; 2014-LCA-8

FILING INJUNCTION FOR ABUSE OF COURT SYSTEM; DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN IMPOSING FILING INJUNCTION WHERE APPELLANT HAD REPEATEDLY FILED MERITLESS CLAIMS, WHERE APPELLANT HAD BEEN WARNED OF POSSIBILITY OF INJUNCTION AND HAD A FULL OPPORTUNITY TO OPPOSE IMPOSITION OF SUCH, AND WHERE THE INJUNCTION WAS PROPERLY NARROW IN SCOPE

In Gupta v. Wipro Ltd., No. 18-3033 (3d Cir. Apr. 2, 2019) (per curiam) (unpublished) (2019 U.S. App. LEXIS 9627; 2019 WL 1466942), the U.S. District Court for the District of New Jersey granted a motion for a filing injunction against Gupta, who had for almost a decade pursued relief in federal court and before the U.S. Department of Labor based on his allegation that his former employer improperly took unlawful deductions from his wages. The H-1B “LCA” administrative complaints had been filed with the Wage and Hour Division, and adjudicated by ALJs and the ARB. Gupta appealed the filing injunction to the Third Circuit, which summarily affirmed the district court.

The court noted that, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), district courts can impose filing injunctions on litigants who have engaged in abusive, groundless, and vexatious litigation – but also noted that “[s]uch an injunction is an exception to the general rule of free access to the courts and its use against a pro se plaintiff must be approached with caution.” Slip op. at 5-6 (citation and footnote omitted). The court found that the district court had complied with the requirements for imposing a filing injunction.

First, exigent circumstances existed because the record demonstrated that Gupta had abused the judicial process by repeatedly asserting meritless claims. Second, Gupta had notice of the possibility of a filing injunction and had an opportunity to show cause why such an injunction should not be imposed. Third, the injunction was properly narrow in scope—it applied only when Gupta was proceeding pro se, it was limited to the topic of his termination from employment with Wipro, it only applied in the District of New Jersey, and it allowed Gupta to pursue new, meritorious claims. The court thus found that the district court had not abused its discretion.

GRASS WORKS LAWN CARE V. ACOSTA, No. 18-1581 (D. D.C. May 3, 2019) (2019 U.S. Dist. LEXIS 74841; 2019 WL 1981087) (Memorandum Opinion) PDF

Cases below: 2018-TLN-38, -45 and -51

APA SUIT ALLEGING ARBITRARY AND CAPRICIOUS DEPARTURE IN FISCAL YEAR 2018 FROM LONGSTANDING AGENCY PRACTICE AS TO DOCUMENTATION REQUIREMENTS FOR H-2B TEMPORARY EMPLOYMENT CERTIFICATION APPLICATIONS; SUIT DISMISSED BASED ON LACK OF STANDING AND MOOTNESS WHERE FISCAL YEAR 2018 AND TIME FOR RAISING OF VISA CAP HAD EXPIRED; MOOTNESS EXCEPTIONS NOT ESTABLISHED WHERE PLAINTIFFS FAILED TO ACT TIMELY TO SEEK PRELIMINARY INJUNCTION OR OTHER EXPEDITED RELIEF, AND WHERE PLAINTIFFS WERE NOW ON NOTICE FOR FUTURE APPLICATIONS OF THE TYPE OF DOCUMENTATION DOL WOULD REQUEST

In Grass Works Lawn Care v. Acosta, No. 18-1581 (D. D.C. May 3, 2019) (2019 U.S. Dist. LEXIS 74841; 2019 WL 1981087) (cases below 2018-TLN-38, -45 and -51), three small construction and landscaping businesses challenged the denial by DOL of temporary employment certificates for H-2B workers in Fiscal Year 2018, arguing that DOL

• . . . acted arbitrarily and capriciously and abused their discretion in violation of the Administrative Procedures Act (APA), 5 U.S.C. § 551 et seq., when they (1) deviated “from long-settled agency practice by insisting that Plaintiffs provide one specific form of documentation (summarized monthly payroll records) in support of the Plaintiffs’ temporary employment certification applications,” (2) ignored relevant evidence in the record, and (3) failed to inform Plaintiffs that the summarized monthly payroll reports were the only means of demonstrating peakload need.

Slip op. at 5-6 (quoting Plaintiff’s complaint). The Defendants moved for dismissal based on lack of standing and mootness. The court granted the Defendants’ motion.

The court initially noted that FY2018 had ended and FY2019 was more than halfway over. The court stated “[t]his Court cannot order DOL to take an action that has no significance or legal force. Requiring DOL to issue temporary employment certificates to Plaintiffs for FY 2018 based on different documentation would be of no use to Plaintiffs. Plaintiffs’ argument about the possibility that the cap on the number of visas will be raised ignores that DHS cannot raise a cap for a fiscal year that has ended. FY 2018 ended just before Plaintiffs filed their reply brief on October 1, 2018.” Id. at 11 (footnote omitted). The court further stated that it agreed with the 10th Circuit and the Southern District of Texas that “[i]t cannot issue an advisory opinion to DOL on its document demands in FY 2018. ‘[Courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong.’ Spencer, 523 U.S. at 18. Because the Court cannot provide Plaintiffs with their requested remedy the lawsuit is both not subject to redress and moot.” Id. at 11-12.

The court also found no applicable exceptions for mootness. As to the “evade review” exception for mootness, the court noted that a plaintiff has an obligation to attempt to prevent his case from becoming moot. The court found that Plaintiffs in the instant cases waited four months after their applications were denied to file suit, and that they had not timely requested a preliminary injunction or other expedited relief. Such failures weighed against finding that the matter evaded review.

As to the “capable of repetition” exception for mootness, the court found that Plaintiffs had not demonstrated a reasonable expectation that the event was capable of repetition. The court stated that even if it was reasonably likely that DOL would again ask for summarized monthly payroll records, “the Court is persuaded by Defendants’ argument that Plaintiffs are now on notice of the type of documentation that might be requested and can attempt to maintain those reports to provide with their next applications.” Id. at 11.

HSIAO V. ACOSTA, No. 18-cv-00502 (D. Haw. June 28, 2019) (2019 U.S. Dist. LEXIS 109106; 2019 WL 2717771) (Order Granting Defendant’s Motion to Dismiss) PDF

Case below 2012-PER-02131

Note:  The District Court's later Sept. 23, 2019 dismissal of the case was appealed to the Ninth Circuit.  The Ninth Circuit in Hsiao v. Scalia, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (No. 19-16870) (Unpublished Memorandum), found that the foreign worker has Article III standing to pursue her claim, and remanded for further proceedings.  A casenote on the Ninth Circuit's ruling is found further below on this page (casenotes are in chronological order).

CONSTITUTIONAL STANDING OF ALIEN BENEFICIARY TO CHALLEGE DENIAL OF EMPLOYER’S LABOR CERTIFICATION APPLICATION; PLAINTIFF MUST PLEAD FACTS TO SHOW INJURY-IN-FACT WAS CAUSED BY DOL’S ACTIONS AND TO SHOW THAT THE INJURY WOULD BE REDRESSED BY A FAVORABLE DECISION

In Hsiao v. Acosta, No. 18-cv-00502 (D. Haw. June 28, 2019) (2019 U.S. Dist. LEXIS 109106; 2019 WL 2717771) (case below 2012-PER-02131), later dismissal vacated and case remanded in Hsiao v. Scalia, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (unpublished),  Plaintiff—the alien beneficiary of her employer’s PERM application—sought declaratory and injunctive relief based upon alleged errors and abuses by the Department of Labor (DOL). The court granted DOL’s FRCP 12(b)(1) motion to dismiss, finding that Plaintiff lacked constitutional standing because she did not sufficiently plead an injury-in-fact that is fairly traceable to the challenged conduct and redressable by a favorable decision. Specifically, Plaintiff failed to allege facts to support the contention that her injuries (undue stress and risk to the life of her unborn child; limited or extinguished ability to apply for other jobs) were caused by DOL’s actions. Plaintiff also failed to allege facts sufficient to show that a favorable decision is substantially likely to redress her injuries. The dismissal was without prejudice for Plaintiff to file an amended complaint to correct the pleading deficiencies. The court did not reach the question of whether Plaintiff has standing to challenge the denial of her employer’s application where she was not the labor certification applicant but rather the beneficiary.

G.H. DANIELS III & ASSOCS. V. PIZZELLA, No. 18-1375 (10th Cir. July 25, 2019) (2019 U.S. App. LEXIS 22168; 2019 WL 3331418) (Order and Judgment) PDF

Cases below D. Col. No. 12-1943; ALJ No. 2012-TLN-00037)

EAJA CLAIM FOR FEES, COSTS AND EXPENSES; ARGUMENT THAT GOVERNMENT’S CHANGE OF POSITION IN PETITION FOR REHEARING JUSTIFIED EAJA AWARD FOR ENTIRE LITIGATION MUST BE CONSIDERED AS PART OF HOLISTIC ASSESSMENT OF WHETHER GOVERNMENT’S OVERALL POSITION HAD BEEN JUSTIFIED

In G.H. Daniels III & Assocs. v. Pizzella, No. 18-1375 (10th Cir. July 25, 2019) (2019 U.S. App. LEXIS 22168; 2019 WL 3331418), the Appellants had prevailed on their claim that DHS impermissibly sub-delegated its decisionmaking authority under the H-2B visa program to DOL, and thereafter moved for an award of attorneys’ fees, costs, and expenses pursuant to the Equal Access to Justice Act (“EAJA”). The District Court had denied the motion. On appeal, the Tenth Circuit found that the district court had not clearly considered Appellants’ argument that the government had changed its position on sub-delegation in its petition for rehearing, justifying EAJA fees on all stages of the litigation. The Tenth Circuit concluded that the district court should have considered this argument as part a “holistic assessment of whether the government’s overall position in the litigation was justified.”

HSIAO V. PIZZELLA, No. 18-cv-00502 (D. Haw. Sept. 23, 2019) (2019 U.S. Dist. LEXIS 161648) (Order Granting Defendant’s Motion to Dismiss) PDF

BALCA Case No.: 2012-PER-02131

Note:  The District Court's decision was vacated and the case remanded for further proceedings in Hsiao v. Scalia, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (No. 19-16870) (Unpublished Memorandum).   The Ninth Circuit found that the foreign worker  has Article III standing to pursue her claim.   A full casenote of Ninth Circuit's decision is further below on this page (casenotes presented in chronological order).

FOREIGN WORKER FOUND TO LACK CONSTITUTIONAL STANDING FOR DECLARATORY OR INJUNCTIVE RELIEF FROM THE DENIAL OF A PERM APPLICATION WHERE, AMONG OTHER FACTORS, IT WAS EMPLOYER’S POLICY RATHER THAN DOL’S REGULATIONS THAT PREVENTED THE FILING OF A NEW PERM APPLICATION; FOREIGN WORKER ALSO FOUND TO LACK PRUDENTIAL STANDING UNDER ZONE-OF-INTERESTS TEST

In Hsiao v. PIzzella, No. 18-cv-00502 (D. Haw. Sept. 23, 2019) (2019 U.S. Dist. LEXIS 161648), vacated and remanded in Hsiao v. Scalia, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (unpublished), the court granted Defendant’s motion to dismiss with prejudice Plaintiff’s action for declaratory and injunctive relief. Plaintiff alleged that DOL erred in denying her employer’s Application for Permanent Employment Certification both on the merits, and due to alleged denials of due process and alleged misconduct. The court found that Plaintiff lacked constitutional standing, and that the court thus lacked jurisdiction to grant the relief requested. The court found that "[t]he DOL’s denial only affected her employment with Employer. 8 U.S.C.A. § 1182(5)(A). The denial did not preclude Plaintiff from looking for another employer to submit a labor certification on her behalf." Slip op. at 15 (citation omitted). Moreover, the court noted that DOL regulations did not prevent her employer from filing a new application; rather it was the employer’s own policy to not advertise a position unless it is vacant that prevented a new application and not Defendant’s behavior. As to redressability, Plaintiff requested that the court order DOL to issue an approved labor certification. The court noted that even if it could demand that DOL approve the application, that would not necessarily result in Plaintiff obtaining an employment-based immigrant visa, as her employer would still have to submit with USCIS an I-140 visa petition and submit documentation showing that Plaintiff meets all requirements outlined in the labor certification and that it has the ability to pay the offered wage. If the I-140 was approved, Plaintiff would then have to file with DHS an I-485 or I-765 application for lawful permanent residency. The court also noted that the remedy under the APA would not have been an order from the court to approve the application, but a remand to DOL, which Plaintiff conceded could result in a denial based on one of the prior grounds. The court also found that Plaintiff did not have prudential standing (assuming the zone-of-interests test remains part of the APA jurisdictional jurisprudence in the 9th Circuit). The court noted that Plaintiff’s interests, as a foreign worker, were inconsistent with the labor certification process incorporated into the INA, which is designed to prevent the employment of foreign workers from adversely affecting the wages and working conditions of U.S. workers similarly employed.

ZIRKLE FRUIT CO. V. UNITED STATES DEP’T OF LABOR, No. 19-cv-3180 (E.D. Wash. Mar. 2, 2002) (2020 U.S. Dist. LEXIS 46065) (Order Denying Plaintiff’s Motion for Declaratory Judgment and Injunction and Granting DOL Defendants’ Motion for Partial Summary Judgment) PDF

APA CHALLENGE TO DOL’S VALIDATION AND PUBLICATION OF STATE SWA’S 2019 PREVAILING WAGE RATE SURVEY FOR BLUEBERRY HARVESTING FOR H-2A PROGRAM; HANDBOOK 385 IS NOT A LEGISLATIVE RULE; DEPARTURE FROM ASPECTS OF HANDBOOK 385 WAS SHOWN BY DOL NOT TO BE IRRATIONAL OR UNANNOUNCED AND WERE NOT ARBITRARY AND CAPRICIOUS

PLAINTIFF CHALLENGING AGENCY’S STATISTICAL APPROACH UNDER H-2A PROGRAM BEARS A HEAVY BURDEN; IMPERFECTION ALONE DOES NOT ESTABLISH THAT AGENCY’S DECISION WAS IRRATIONAL

In Zirkle Fruit Co. v. United States Dep’t of Labor, No. 19-cv-3180 (E.D. Wash. Mar. 2, 2002) (2020 U.S. Dist. LEXIS 46065), Plaintiff sought a declaratory judgment and injunction under the Administrative Procedure Act regarding the prevailing wage rate (PWR) for blueberry harvesting in Washington certified by DOL during the 2019 harvest. The court considered what were “essentially” cross motions for summary judgment, and found that Plaintiff failed to establish either that the methods the State of Washington Employment Security Department (ESD) employed in calculating the 2019 blueberry PWR, or the process DOL employed in certifying that result, were arbitrary or capricious.

State “workforce agencies” (SWAs) are guided in the process of calculating the PWR in part by a DOL publication known as Handbook 385, which sets out standards both for conducting prevailing wage surveys and for calculating PWRs from those results. After the SWA has calculated the PWRs, DOL reviews them, and if it validates them, the PWR is published and H-2A employers must pay it immediately, even if the change comes mid-harvest. 20 C.F.R. § 655.120(b).

Plaintiff claimed error in 10 aspects of ESD’s survey and DOL’s actions in certifying the 2019 blueberry PWR. The court determined that the 10 claims fell within three broad arguments: that ESD unjustifiably departed from the requirements of Handbook 385; DOL failed to adequately scrutinize EDS’s findings; and ESD used flawed and inconsistent statistical models, and therefore reached flawed conclusions, in calculating the PWR.

In regard to the first argument, the focus was on whether DOL could amend or revoke provisions of Handbook 385, particularly with respect to the provision Plaintiff claimed were violated.

•     The Court concludes Handbook 385 is a statement of agency practice or procedure, and not a legislative rule. For one thing, Handbook 385 was not promulgated through the notice and comment rulemaking process. More importantly, Handbook 385 does not prescribe “individual rights and obligations,” the hallmark of a legislative rule. Rank, 677 F.2d at 698. Rather, individual rights and obligations associated with the H-2A program—including, most importantly, the requirements for what agricultural employer participants must pay nonimmigrant foreign laborers—are set out in the Code of Federal Regulations. See 20 C.F.R. § 655.120(a). Handbook 385, by contrast, simply dictates the procedure SWAs, as DOL’s delegees, are to follow in calculating the PWR. See AR 1. In short, Handbook 385 is a statement of agency procedure or practice and therefore, DOL was not required to undergo the notice and comment process before amending its requirements. See Rank, 677 F.2d at 698; Perez, 575 U.S. at 101.

Slip op. at 12-13 (footnote omitted). The court, however, cautioned that “even if DOL was entitled to alter the requirements of Handbook 385 without public notice or comment, an ‘unannounced departure in practice’ from a settled and consistent approach to PWR surveys could still be arbitrary and capricious. Acosta, 901 F.3d at 387.” Id. at 13.

In the instant case, Handbook 385 provided that surveys must include a substantial number of personal employer interviews. Defendants conceded that the ESD’s 2019 PWR survey had no in-person interviews; contacts were made by web or phone or mail. The court, however, found that the record showed that DOL’s decision not to require in-person interviews was not irrational or unannounced. In 2013, DOL had eliminated from the form used by ESDs to report PWR findings a column used to provide the number of worker interviews conducted, observing that most states no longer did field interviews due to reduced funding and that mail, fax, and telephone surveys made worker interviews obsolete. In addition, since at least 2016 DOL issued Training and Employment Guidance Letters (TEGLs) directing SWAs to prioritize limited resources to conduct surveys to yield statistically valid wage findings. In early 2017, DOL expressly acknowledged that PWR surveys could be conducted by a variety of mean including by telephone. The 2018 and 2019 TEGLs had the same direction. Testimony established that DOL trained SWAs to leverage their funding by using the most efficient survey method that would result in reliable findings. Testimony established that DOL relied in part on a 2013 ALJ ruling that the failure to conduct in-person interviews did not necessarily render a PWR finding invalid. The court thus concluded:

• The record is clear that DOL recognized budgetary constraints made in-person interviews impractical and therefore stopped requiring them well before ESD began the 2019 PWR survey. As such, DOL’s decision to certify the 2019 blueberry PWR despite the absence of in-person interviews was neither irrational nor unannounced and was therefore not arbitrary or capricious. Yueh-Shaio Yang, 519 U.S. at 32.

Id. at 15.

The court found that DOL’s decision to certify the PWR based on a period exceeding one week was neither irrational nor a departure from longstanding practice, but rather was based on DOL’s “considered judgment in light of state budgetary constraints to depart from the requirement that wage surveys be limited to one week.” The court found that such as judgment could not be set aside as arbitrary and capricious, observing that an ALJ had noted that due to a low response rate, an expanded survey timeframe appeared to have enhanced the potential for accuracy. The court also found that DOL did not act in an arbitrary and capricious manner is disregarding different blueberry harvesting activities or geographic areas of the state where it had sought input from stakeholders about whether there were such factors to consider. The court found that ESD had not failed to report an increase in the blueberry PWR where there was not an equatable rate from the prior year, the prior rate being reported as a hourly wage whereas the 2019 rate was reported as a piece rate.

The court was not persuaded that DOL blindly rubber-stamped the ESD’s PWR finding. The court stated: “DOL was entitled to rely on the validity of ESD’s calculations and, after reasonably assuring itself that ESD’s results were reliable, to certify those findings without engaging in a de novo review of the underlying survey data or statistical models ESD employed. See City of Carmel-By-The-Sea, 123 F.3d at 1162. This is particularly true given the applicable regulation’s explicit requirement of DOL’s cooperation with state workforce agencies like ESD. 20 C.F.R. § 653.501(c)(2)(i). The record is clear that after receiving ESD’s report, [the DOL analysts] engaged in a substantial review process and concluded ESD’s findings were reliable. As such, DOL did not act in an arbitrary or capricious manner.” Id. at 21-22.

The court was also not persuaded by Plaintiff’s argument that DOL erred in certifying the 2019 blueberry PWR despite significant methodological flaws. The court wrote:

•     In attempting to invalidate the 2019 blueberry PWR on the basis of ESD’s statistical approach, Zirkle bears a heavy burden. It is well settled that an agency’s decision is not arbitrary and capricious simply because it relies on an imperfect dataset or statistical model. See Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 61 (D.C. Cir. 2015) (“[E]ven if this dataset was less than perfect, imperfection alone does not amount to arbitrary decision-making.”); Appalachian Power Co. v. E.P.A., 249 F.3d 1032, 1052 (D.C. Cir. 2001) (“That a model is limited or imperfect is not, in itself, a reason to remand agency decisions based upon it.”); Allied Local and Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 71 (D.C. Cir. 2000) (“We generally defer to an agency’s decision to proceed on the basis of imperfect scientific information, rather than to ’invest the resources to conduct the perfect study.’” (quoting Sierra Club v. E.P.A., 167 F.3d 658, 662 (D.C. Cir. 1999)); see also In re Polar Bear ESA Listing, 709 F.3d 1, 13 (D.C. Cir. 2013); North Carolina v. FERC, 112 F.3d 1175, 1190 (D.C. Cir. 1997); Chemical Mfrs. Ass’n v. EPA, 28 F.3d 1259, 1265 (D.C. Cir. 1994). Nevertheless, “[w]hile courts routinely defer to agency modeling of complex phenomena,” the agency must ’explain[ ] the assumptions and methodology used in preparing the model and provide[ ] a complete analytic defense should the model be challenged.’” In re Polar Bear ESA Listing, 709 F.3d at 13 (quoting Appalachian Power Co., 249 F.3d at 1053–54)).

Id. at -22-23. The court analyzed Plaintiff’s allegations related to use of the capture-recapture model to estimate the number of blueberry growers in the state, and found that Plaintiff only showed that the method has limitations. The court declined to invalidate the survey on this basis. Similarly, the court declined to invalid the survey based on the use of the “K-means” test.

The court concluded by observing:

•     Agency action is not arbitrary or capricious simply because it is imperfect. Nor are agencies required to delay or forego their delegated duties simply because they lack a perfect dataset from which to undertake them. In this case, Congress delegated to DOL—and, by extension, ESD—the important task of calculating the PWR to ward off serious damage to the domestic labor market that could result from an influx of foreign labor paid below-market wages. ESD applied its limited funding to the imperfect data it was capable of gathering and relied on sophisticated, if imperfect, statistical models to calculate the PWR. DOL evaluated those findings and assured itself they complied with the relevant standards. At most, Zirkle has shown this process was limited and produced an imperfect result. Under the APA, that is not enough. Zirkle’s motion for summary judgment is denied. The DOL Defendants’ motion for partial summary judgment is granted.

Id. at 29-30.

VINAYAGAM V. UNITED STATES DEP’T OF LABOR ADMIN. REVIEW BD., No. 18-cv-01206 (D. Nev. Mar. 23, 2020) (2020 U.S. Dist. LEXIS 51804) (Order) PDF

COMPLAINT WHICH, INTER ALIA, CHALLENGED WAGE MATTERS ALEADY LITIGATED BEFORE THE DEPARTMENT OF LABOR AND THE COURTS DISMISSED ON IN FORMA PAUPERIS SCREENING WITHOUT PREJUDICE TO FILE ADDITIONAL AMENDED COMPLAINT

In Vinayagam v. United States Dep’t of Labor Admin. Review Bd., No. 18-cv-01206 (D. Nev. Mar. 23, 2020) (2020 U.S. Dist. LEXIS 51804), the district court had granted Plaintiff’s request to proceed in forma pauperis, which requires screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2). An amended complaint was dismissed with leave to amend, and before the court was Plaintiff’s second amended complaint, which appeared to assert 17 claims stemming from her recruitment to work in the U.S. The court found it unclear that it had subject matter and personal jurisdiction over the parties — and that it appeared that the complaint had significant venue and res judicata issues. Plaintiff had previously challenged the wage issues with the Department of Labor, including appeals through to the Circuit. The court stated that such claims would be precluded in the instant lawsuit. The court dismissed the second amended complaint without prejudice to file a third amended complaint.

[Editor's note: The related USDOL case was Vinayagam v. Cronous Solutions, Inc., ARB No. 15-045, ALJ No. 2013-LCA-29. The related Court of Appeals decision was Vinayagam v. Admin. Review Bd., No. 18-70199 (9th Cir. May 23, 2018) (2018 U.S. App. LEXIS 13762).]

UNITED STATES v. BEDI, No. 17-CV-1168 (N.D. N.Y. Apr. 8, 2020) (2020 U.S. Dist. LEXIS 61692) (Memorandum-Decision and Order)

DOL Nos.: ARB No. 14-096; ALJ No. 2012-LCA-00057

U.S. GOVERNMENT’S COLLECTION ACTION, PURSUANT TO FEDERAL DEBT COLLECTION PROCEDURES ACT, OF BACK WAGES FOUND OWED IN DOL LCA ADMINISTRATIVE HEARING; POSSIBLE RIGHT OF H-1B WORKER TO PURSUE STATE REMEDY DID NOT PREVENT FDCPA ACTION; FACT THAT DEFENDANT’S PRESIDENT AND H-1B WORKER CRIMINALLY CONSPIRED TO DEFRAUD A CLIENT DID NOT PREVENT COLLECTION ACTION; FACT THAT DEFENDANT’S PRESIDENT HAD TO TESTIFY BY TELEPHONE FROM PRISON DID NOT RENDER ADMINISTRATIVE HEARING A VIOLATION OF CONSITUTIONAL RIGHTS; FINALITY OF ARB DECISION, RATHER THAN ALL POSSIBLE APPEALS, DECISIVE FACTOR SUPPORTING ACCURAL OF FDCPA ACTION

In United States v. Bedi, No. 17-CV-1168 (N.D. N.Y. Apr. 8, 2020) (2020 U.S. Dist. LEXIS 61692), the United States of America (the Government) sought to collect, pursuant to the Federal Debt Collection Procedures Act of 1990 (FDCPA), back wages awarded by the U.S. Department of Labor to an H-1B worker (Ingvarsdottir) based on Defendants (Datalink Computer Products, Inc. and Datalink’s president and sole shareholder, Bedi) failure to pay the wages required under two labor conditions applications (LCAs) supporting Ingvarsdottir’s H-1B visa.. A wrinkle in this case is that Bedi and Ingvarsdottir plead guilty to grand larceny based on a years-long scheme to defraud a wealthy Datalink client. Bedi was sentenced to imprisonment for his role. After a hearing, the ALJ in a thorough opinion found that Defendants were jointly and severally liable for H-1B backwages. The ARB affirmed the ALJ’s decision with only a small modification to the amount of backwages owed. The Government then sought to collect the sum owed. Defendants vigorously challenged the collection effort.

Possible independent right of H-1B worker to pursue state remedy

Defendants had previously challenged the Government’s ability to collect a debt under the FDCPA. Although the court had held that a back pay awarded by the DOL to a non-party employee qualified as a “debt owing to the United States,” Defendants attempted to resurrect the challenge by arguing that the FDCPA did not apply because Ingvarsdottir could have independently pursued state court actions. Although Defendants suggested that there was a private employment arrangement that invoked a FDCPA exception, they never produced or identified such. The court also noted that H-1B wages are fixed by statute and not contract, and the former was what matters for the H-1B back wage award.

Equitable principles — in pari delicto or unclean hands

Defendants cited equity decisions dating back to 1725 to support its argument the equitable principles of in pari delicto or unclean hands bar the Government from helping the H-1B worker unfairly benefit at the expense of her co-felons. . The court was not persuaded:

•    These equitable defenses do not thwart the Government’s FDCPA claim. Courts in this Circuit generally require a party that tries to raise either of these equitable bars to make a threshold showing of a counter-party’s “egregious” misconduct, or to demonstrate that the counter-party bears “substantially equal responsibility” for the misconduct. New York v. United Parcel Serv., Inc., 253 F. Supp. 3d 583, 680-81 (S.D.N.Y. 2017), rev’d in part on other grounds, 942 F.3d 554 (2d Cir. 2019).
•    Keeping in mind that the Government, not Ingvarsdottir, is the named plaintiff in this action, defendants have not shown any “egregious” misconduct attributable to the Government, nor have they shown that the Government bears “substantially equal responsibility” for the scheme to defraud. And whether or not the Government stands in Ingvarsdottir’s shoes for purposes of assessing these equitable defenses, defendants’ argument only makes sense if you conflate one type of misconduct; i.e., the conspiracy to defraud, with a separate type of misconduct that is actually at issue in this case; i.e., defendants’ violation of the H-1B visa program’s wage requirements.

Slip op. at 13.

Fairness of hearing — Bedi’s attendance by telephone from prison

Defendants claimed that Bedi’s constitutional rights were violated when he was excluded from participating in the administrative hearing and forced to testify by telephone. Again, the court was not persuaded:

•    This kind of argument fails for a number of independent reasons. First, the Court is not aware of any blanket constitutional right to be present for a civil hearing, especially an administrative one. Defendants, citing Illinois v. Allen, invoke the Sixth Amendment for this proposition. But the Sixth Amendment’s Confrontation Clause is about safeguarding the rights of defendants in criminal proceedings, not civil ones. See, e.g., United States v. Flores, 985 F.2d 770, 781 (5th Cir. 1993) (“[T]he Confrontation Clause applies only in criminal prosecutions and protects only the accused.”). Defendants have not offered any reason to conclude the right secured by the Confrontation Clause is applicable at all, much less co-extensive in scope, in the context of a civil administrative proceeding that resulted in an award of money damages.
•    As the Government points out, defendants are probably looking for the Fifth Amendment’s Due Process Clause, which commands that no person shall be deprived of life, liberty, or property without reasonable notice and an opportunity to be heard. See, e.g., Karpova v. Snow, 497 F.3d 262, 270 (2d Cir. 2007) (Cardamone, J.).
•     "The opportunity to be heard must be 'at a meaningful time and in a meaningful manner.'"  Karpova, 497 F.3d at 270 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). “However, the Due Process Clause does not necessarily require that a person be given an opportunity to be heard orally in a testimonial setting; the opportunity for written submissions may be sufficient.” Id. In other words, “due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Id. at 14. Based on this standard, the court found that the telephonic hearing arrangement employed by the ALJ did not violate Bedi’s constitutional rights: he was permitted to testify by telephone before the ALJ rendered her decision, and he was represented by legal counsel throughout the entire administrative proceedings. The court found no legal support for Defendants’ apparent argument that the ALJ was obligated to continue the matter until Bedi was eventually released from prison — the court taking judicial notice that Bedi was not even released to parole until over three years after the ALJ hearing.

FDCPA action maintained prior to exhaustion of all appeals

Defendants argued that the DOL award was unenforceable because it was not yet final. The court had previously ruled, however, that the ARB decision was a “final agency action.” The court stated: “The question of when the Government’s FDCPA claim has accrued is separate from the question of how long a defendant has to challenge an agency’s action under the APA. . . . The former matters; the latter does not.” Id. at 15 (citations omitted).

Judgment as a matter of law

The court determined that, upon review of the administrative record, the Government established that it was entitled to summary judgment, the ARB having correctly affirmed the ALJ’s “determination that Defendants violated 8 U.S.C. § 1182(n)(1)(A) and 20 C.F.R. § 655.731 when they failed to pay Ingvarsdottir the ‘prevailing wage’ listed in the LCAs signed by defendants under penalty of perjury.” Id. at 16-17 (citation to briefs omitted). The court quoted the ARB’s note that “[w]hile there are many complex facts in this case, the relevant facts are simple.”

VINAYAGAM V. UNITED STATES DEP’T OF LABOR ADMIN. REVIEW BD., 18-cv-01206 (D. Nev. Apr. 27, 2020) (2020 U.S. Dist. LEXIS 95433) (Report and Recommendation), adopted, Vinayagam v. United States Dep’t of Labor Admin. Review Bd., 18-cv-01206 (D. Nev. May 28, 2020)

USDOL Case Nos.: ARB No. 15-045, ALJ No. 2013-LCA-29

Recommendation of dismissal without prejudice for failure to file amended complaint.

GUPTA v. WIPRO LTD., No. 19-3405 (3d Cir. May 8, 2020) (per curiam) (not precedential) (2020 U.S. App. LEXIS 14721)

Prior History: No. 17-cv-01954 (D.N.J.)

USDOL Nos.: ARB No. 12-050, ALJ No. 2010-LCA-24

FRCP 60(b)(6) RELIEF NOT WARRANTED WHERE PETITIONER FILED THE MOTION ALMOST TWO YEARS AFTER DISTRICT COURT HAD DISMISSED COMPLAINT; WHERE RELIEF SOUGHT—PERMISSION TO EXHAUST ADMINISTRATIVE REMEDIES—WAS NOT AN EXTRAORDINARY CIRCUMSTANCE AS THE COMPLAINT HAD BEEN DISMISSED BASED ON CLAIM PRECLUSION AND NOT FAILURE TO EXHAUST; ATTEMPT TO RE-LITIGATE CLAIM PRECLUSION WAS ALSO NOT A GROUND FOR RULE 60(b) RELIEF

In Gupta v. Wipro Ltd., No. 19-3405 (3d Cir. May 8, 2020) (per curiam) (not precedential) (2020 U.S. App. LEXIS 14721), Gupta had filed a series of administrative and court actions alleging that his H-1B employer took unauthorized deductions from his wages and those of other employees. All of these actions were dismissed. A third complaint resulted in dismissal based on claim preclusion, denial of Gupta’s motion to reopen, and a filing injunction imposed by the district court against Gupta. Gupta later filed a “Motion for Leave to Exhaust Administrative Remedies” asserting that he had cured the pleading deficiencies from his original complaint, and thus he should be permitted to exhaust his remedies with the ALJ and ARB. The court analyzed the motion as a request for Rule 60(b)(6) relief. The court found that the motion had not been filed within a reasonable time, having been filed almost two years after the district court dismissed his complaint. The court also found that Gupta failed to demonstrate extraordinary circumstances as his complaint had not been dismissed for failure to exhaust but based on claim preclusion. Although Gupta asserted that his complaint was not barred by claim preclusion, the court determined that it had already resolved that issue and an attempt to re-litigate it did not warrant Rule 60(b) relief. Costs were imposed against Gupta, and the court directed that, going forward, responsive briefing from the appellees need not be filed unless the court specifically ordered such. The court, however, denied Wipro’s request for a filing injunction. 

HSIAO v. SCALIA, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (No. 19-16870) (Unpublished Memorandum) 

District Court Case No.: 18-cv-00502 (D. Haw.)
BALCA Case No.:  2012-PER-02131

NINTH CIRCUIT HOLDS THAT FOREIGN WORKER HAS ARTICLE III STANDING AND PRUDENTIAL STANDING TO SEEK REVIEW OF A DENIAL OF AN APPLICATION FOR PERMANENT EMPLOYMENT CERTIFICATION 

In Hsiao v. Scalia, 821 Fed. Appx. 680 (9th Cir. July 13, 2020) (unpublished), the Appellant appealed an Order of the United States District Court for the District of Hawaii dismissing the Appellant’s Amended Complaint for lack of Article III standing and prudential standing to seek APA review of a denial of an Application for Permanent Employment Certification filed on her behalf by her employer.  See Hsiao v. Pizzella, No. 18-00502, 2019 U.S. Dist. LEXIS 161648; 2019 WL 4620362 (D. Haw. Sept. 23, 2019).  Although the District Court found that the Appellant alleged an injury-in-fact from the denial of certification, it found that the Appellant did not have Article III standing to pursue her claim because she failed to demonstrate causation and redressability.  2019 U.S. Dist. LEXIS 161648, at *11–21; 2019 WL 4620362, at *4–8.  The District Court further found that the Appellant lacked prudential standing because she did not fall within the “zone of interests” contemplated by the Immigration and Nationality Act (“INA”) at 8 U.S.C. § 1182(a)(5)(A)(i)(II).  2019 U.S. Dist. LEXIS 161648, at *23–24; 2019 WL 4620362, at *8–9.

The Ninth Circuit vacated the District Court’s Order and remanded the matter.  821 Fed. Appx. at 683.  In finding that the foreign worker had Article III standing to pursue her claim, the Ninth Circuit held that the Appellant “lost a significant opportunity to proceed in the . . . immigration process” when the Department of Labor (“DOL”) denied certification, which represented “a concrete injury to her that is traceable to the DOL’s denial and is remediable by a favorable decision in this case.”  Id.  

The Ninth Circuit also held that the Appellant had prudential standing to pursue her claim, stating that the “zone of interests” encompassed by the INA includes “the requirements for obtaining a labor certification for aliens,” that obtaining a labor certification “would provide [the Appellant] eligibility to work in the United States,” and that “the DOL's regulations specifically refer to the alien as the ‘beneficiary’ of the application.”  Id.  The Ninth Circuit also stated that the Appellant would receive a visa and be provided an opportunity to apply for an adjustment of her status if she successfully completed the process for obtaining permanent residency pursuant to 8 U.S.C. § 1182(a)(5)(A)(i).  Id.  

In holding that the foreign worker had Article III standing, the Ninth Circuit noted that it had found in Abboud v. INS, 140 F.3d 843 (9th Cir. 1998), superseded by statute as stated by Spencer Enters., Inc. v. United States, 345 F.3d 683, 692 n.5 (9th Cir. 2003, that “an alien has standing to challenge the denial of a petition for an immigrant visa filed on his behalf by a relative.”  821 Fed. Appx. at 682 (citing Abboud, 140 F.3d at 847).

ALEUTIAN CAPITAL PARTNERS, LLC V. SCALIA, No. 17-3810 (2d Cir. Sept. 22, 2020) (2017 U.S. Dist. LEXIS 162965; 2017 WL 4358767) (Order affirming district court)

Prior history: Aleutian Capital Partners, LLC v. Hugler, No. 16-cv-5149 (S.D. N.Y. Sept. 28, 2017)

USDOL Nos: ARB No. 14-082, ALJ No. 2014-LCA-5

LCA REGULATIONS MANDATE THAT EMPLOYER MAKE MONTHLY PRO RATA WAGE PAYMENTS; FACT THAT CUMULATIVE PAYMENTS FOR THE YEAR EXCEEDED REQUIRED SALARY DID NOT EXCUSE FAILURE TO MAKE MONTHLY PAYMENTS AND PERMITTED DOL TO ASSESS BACK WAGES

LCA AGGRIEVED PARTY COMPLAINT; ONE-YEAR LIMITATIONS PERIOD APPLIES TO FILING OF COMPLAINT, AND NOT TO SCOPE OF RELIEF THAT DOL MAY AWARD

LCA AGGRIEVED PARTY COMPLAINT; SCOPE OF DOL’S INVESTIGATION MAY EXTEND TO WHETHER SPECIFIC MISCONDUCT ALLEGED IN COMPLAINT IMPACTED EMPLOYEES OTHER THAN THOSE NAMED IN COMPLAINT

In Aleutian Capital Partners, LLC v. Scalia, No. 17-3810 (2d Cir. Sept. 22, 2020), Aleutian Capital Partners, LLC (“Aleutian”), a private equity investment group, engaged two H-1B Program employees: Horn and Gangjee. Gangjee filed a complaint with DOL alleging that Aleutian violated the LCA regulations by underpaying him for several months. DOL determined that the monthly salary payments Gangjee received frequently fell below the amount he was due under H-1B Program standards, albeit Gangjee’s total compensation for the year in question was higher than the annual salary required. DOL, however, “determined that applicable regulations called for Aleutian to pay Gangjee back wages for each of the months in which it failed to remit in wages the full amount due, regardless of any bonuses or overpayments that it made in other months.” Slip op. at 3 (citation to record omitted). DOL also found during its investigation that Aleutian underpaid Horn during one month, and ordered back wages for that month.

Employer Must Make Monthly Pro Rata Wage Payments

Aleutian argued that because it paid Gangjee by the end of the year the wage specified in its H-1B Program application, DOL cannot order it to pay any back wages at all. The Second Circuit, however, affirmed the determination in the ALJ, ARB and District Court proceedings that the applicable regulations unambiguously require H-1B employers to make wage payments in “prorated installments,” “no less often than monthly.” 20 C.F.R. § 655.731(c)(4). The court thus concluded that an employer’s failure to satisfy this requirement constitutes a failure to comply with the INA’s overall “required wage obligation,” and supports an award of back wages.

Limitations Period Only Impacts Filing Date; DOL Retains Authority to Access Back Wages That Remedy Full Scope of Failure

Aleutian argued that the one-year statute of limitations set forth in 20 C.F.R. § 655.806(a)(5) for aggrieved-party complaints precluded DOL from taking investigatory action and making payment orders with respect to any time before the one year immediately preceding the submission of Gangjee’s complaint. The Second Circuit determined, however, that the limitations period for filing a complaint did not limit DOL’s authority to assess remedies, and that the regulations reflected this jurisdictional concept. See 20 C.F.R. § 655.806(a)(5). The court noted that the regulation states: “Where, for example, a complaint is timely filed, back wages may be assessed for a period prior to one year before the filing of a complaint.” The court stated that Section 655.806(a)(5) “reflects a reasonable interpretation of DOL’s statutory directive to adopt the position that, where an investigation into a timely filed complaint reveals that an employer’s failure to conform to an LCA has resulted in a pattern of underpayment that extends earlier than the statute of limitations cut-off, DOL may assess back wages that remedy the full scope of that failure. See Brand X, 545 U.S. at 980.” Id. at 19.

Investigation of underpayment of other H-1B worker

In the instant case, Horn had not filed a complaint and Gangjee’s complaint did not mention underpayment of Horn; rather, DOL discovered the underpayment in the course of its investigation. Relying on the Eighth Circuit’s decision in Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015), Aleutian argued that 8 U.S.C. § 1182(n)(2)(A) authorizes DOL to conduct compliance investigations only into specific allegations made in an aggrieved party’s complaint, and thus DOL could not investigate or order back pay as to the other H-1B worker.

The Second Circuit, however, found that the regulation at § 655.800 gives DOL “broad discretion to gather the information that it ‘deem[s] necessary’ to determine an employer’s ‘compliance regarding the matters which are the subject of the investigation,’ and that this may require determining whether the practice complained of in an aggrieved-party complaint also applied to other H-1B workers.” Id. at 22. The court stated that this interpretation does not conflict with the Eighth Circuit’s analysis in Greater Missouri, in which court declared that DOL can investigate the employer’s ‘specific misconduct as alleged in the complaint.’ 812 F.3d at 1138.” Id. at 23.

The Second Circuit stated:

• Where the “specific misconduct” alleged in a complaint is that the employer is using a wage payment practice that is impermissible under the H-1B Program, then an investigation into that “specific misconduct” would in our view reasonably include payroll information about the employer’s one other H-1B Program employee, to determine whether the impermissible practice is being applied to her as well.

Id.

GUPTA V. HEADSTRONG, INC., No. 17-CV-5286 (S.D. N.Y. Sept. 28, 2020) (2020 U.S. Dist. LEXIS 178129; 2020 WL 5637590) (Memorandum Opinion & Order)

USDOL Nos. ARB Nos. 15-032, 15-033, ALJ No. 2014-LCA-8

ATTORNEY FEES; PLAINTIFF WAS NOT ENTITLED UNDER THE AMERICAN RULE TO ATTORNEY FEES RELATED TO SETTLEMENT NEGOTIATIONS WITH DEFENDANT WHERE THE INA PROVISION INVOLVED DID NOT PROVIDE FOR SUCH ATTORNEYS FEES AND PLAINTIFF DID NOT HAVE A CONTRACTURAL RIGHT TO SUCH FEES

ATTORNEY FEES; DEFENDANT WAS ENTITLED TO ATTORNEY FEES FOR DEFENSE OF FEDERAL LAWSUITS BROUGHT IN BREACH OF SETTLEMENT IN WHICH PLAINTIFF HAD RELEASED DEFENDANT FROM THE CLAIMS, WHERE SETTLEMENT AGREEMENT ENTITLED DEFENDANT TO SUCH FEES; AMOUNT REQUESTED WAS REDUCED, WHERE THE AMOUNT WAS DISPORTIONAL TO THE DAMAGES AT STAKE AND WHERE THE ISSUES PRESENTED WERE NOT DIFFICULT; REASONABLENESS OF THE FEES, HOWEVER, WAS SUPPORTED BY FACT THAT LITIGATION REQUIRED A SIGNIFICANT EXPENDITURE OF TIME AND LABOR OVER EIGHT YEARS AND THAT PLAITNIFF FILED MANY UNMERITORIOUS AND SOME FRIVILOUS MOTIONS

In Gupta v. Headstrong, Inc., No. 17-CV-5286 (S.D. N.Y. Sept. 28, 2020) (2020 U.S. Dist. LEXIS 178129; 2020 WL 5637590), both the Defendant and the Plaintiff filed motions for an award of attorney’s fees. The case involved protracted litigation before OALJ, the ARB, and the federal courts concerning a settlement agreement the parties had entered into that resolved Plaintiff’s LCA complaint. Most recently, the District Court for the Southern District of New York had dismissed Gupta’s complaint, essentially reaffirming earlier rulings that a 2008 settlement agreement was valid and enforceable, that the agreement barred Gupta’s claims.

The court first addressed Plaintiff’s claim for fees related to the May 2008 settlement negotiations. Gupta claimed that such fees were supported by state contract law and the LCA provision of the Immigration and Nationality Act, 8 U.S.C. § 1182(n)(2)(C)(i)(I). That INA provision authorizes the Secretary to “impose such other administrative remedies (including civil monetary penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate.” The court was not persuaded that this INA provision overcame the presumption of the American Rule that each litigant pays his own attorney’s fees unless a statute or contract provides otherwise. Nor did the terms of the settlement agreement entitle Gupta to attorney’s fees. The court also found that Gupta was not entitled to costs. Although at one point a DOL ALJ found that Defendant owed back wages under the INA, the ALJ also found that this obligation had been extinguished by the settlement agreement; the ARB and the courts had affirmed this conclusion. Thus, the court found that Gupta had not obtained a judicially sanctioned change in the legal relationship of the parties, and thus was not a prevailing party entitled to costs.

In contrast, the court found that Defendant was entitled to attorney’s fees for the federal court proceedings because Plaintiff clearly breached the settlement agreement by filing two federal actions against Defendant despite having released Defendant from such claims, and the settlement agreement entitled Defendant to collect fees for such a breach. The court, however, reduced the fee award to half what was requested after balancing several factors. The court reduced the award in part because the damages at stake (essentially only $4,500 more than what was paid to Gupta in the settlement) were only a fraction of fees now requested, and because the issues presented were not particularly difficult. The court found support for the reasonableness of the fee request because defending the two federal suits requires a significant expenditure of time and labor over eight years, compounded by the fact that Gupta filed an usually large number of motions, many which the court denied and some of which were frivolous. The amount awarded was $105,081.05.

OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, INC. v. DEPT. OF HOMELAND SECURITY, No. 18-2370 (4th Cir. Dec. 18, 2020) (2020 U.S. App. LEXIS 39830; 2020 WL 7410295) (Opinion)

District court case: No. 16-cv-01015 (D. MD.)

CHALLENGE TO 2008 H-2B REGULATIONS TIME BARRED; PLAINTIFFS LACKED STANDING TO CHALLENGE 2015 H-2B ENFORCEMENT RULES; 2015 H-2B PROGRAM AND WAGE RULES WERE PROPERLY PROMULGATED

In Outdoor Amusement Business Association, Inc. v. Dept. of Homeland Security, No. 18-2370 (4th Cir. Dec. 18, 2020) (2020 U.S. App. LEXIS 39830; 2020 WL 7410295), the Fourth Circuit considered an appeal from a group of employers and associations whose members rely on H-2B visas. Plaintiffs challenged the Department of Homeland Security’s (DHS) 2008 Rules and the joint DHS/Department of Labor (DOL) 2015 Rules, contending that the rules exceeded the agencies’ statutory authority. The court agreed with the district court that the challenge to the 2008 Rules was time-barred. The court concluded that Plaintiffs lacked standing to challenge the 2015 Enforcement Rules, and vacated the district court’s decision on the merits as to those rules. The court agreed with the district court that the remaining 2015 Program and Wage Rules were properly promulgated based on Congress’ implied delegation to DOL as the consulting agency.

Overdevest Nurseries, L.P. v. Walsh, No. 20-5163 (D. D.C. June 25, 2021) (2021 U.S. App. LEXIS 18957) (Opinion)

District Court Case No.: D.D.C. No. 1:18-cv-01347
USDOL Case Nos.: ARB No. 16-047; ALJ No. 2015-TAE-00008

H-2A REGULATORY DEFINITION OF CORRESPONDING EMPLOYMENT AS REVISED IN 2010 RULEMAKING—WHICH HAD THE EFFECT OF REQUIRING EMPLOYERS TO PAY A HIGHER ADVERSE EFFECT WAGE IN SOME CIRCUMSTANCES THAN THEY WOULD HAVE UNDER THE  PRECEDING 2008 DEFINITION—FOUND TO BE A REASONABLE INTERPRETATION OF THE IMMIGRATION AND NATIONALITY ACT § 1188; FOUND NOT TO HAVE BEEN CHANGED IN 2010 RULEMAKING WITHOUT AN ADEQUATE EXPLANATION FOR THE CHANGE; AND FOUND NOT TO HAVE BEEN APPLIED ARBITRARILY AND CAPRICIOUSLY AGAINST THE APPELLANT

In Overdevest Nurseries, L.P. v. Walsh, No. 20-5163 (D. D.C. June 25, 2021) (2021 U.S. App. LEXIS 18957), an ALJ and the ARB had affirmed the Wage and Hour Division Administrator’s determination that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment.  DOL had applied 2010 revisions to the regulatory definition of corresponding employment.  Overdevest filed suit in District Court arguing that the 2010 revisions were inconsistent with the INA and not entitled to Chevron deference, and that DOL misapplied the rule in the instant case.  The District Court granted DOL’s motion for summary judgment, and Overdevest filed the instant appeal to the D.C. Circuit.

2008 and 2010 regulatory definitions of corresponding employment

The court explained the import of the change made in the 2010 amendments to the H-2A regulations to definition of “corresponding employment” in regard to employer wage obligations:

•      In 2010, the Secretary amended the regulations defining “corresponding employment.” The 2008 rule had limited the regulation’s reach to newly-hired workers in the same “occupations” as the H-2A workers, and it permitted employers to staff H-2A workers for up to twenty percent of their time on less-skilled work that was incidental to the skilled work they were hired to perform. As a result, the 2008 rule did not require employers to pay the adverse effect wage rate to U.S. workers hired prior to the H-2A workers or to less-skilled U.S. workers in a different “occupation” than the H-2A workers, even though the H-2A workers might occasionally perform the same work as those less-skilled U.S. workers. The 2010 regulation changed course and defined “corresponding employment” as “[t]he employment of workers who are not H-2A workers . . . in any work included in the job order, or in any agricultural work performed by the H-2A workers.” 20 C.F.R. § 655.103(b). Thus, the 2010 rule requires employers to pay the adverse effect wage rate to any and all U.S. workers who perform any work that is the same as any skilled or agricultural work that is performed by H-2A workers.

Slip op. at 3-4.

Whether Chevron deference should be afforded to DOL’s interpretation of the INA

The court first reviewed Overdevest’s contention that DOL’s interpretation of INA section 1188(a)(1) in the 2010 was not entitled to Chevron deference between Congress was allegedly explicit that only qualified U.S. workers were entitled to the same wage as H-2A workers, and the Secretary’s interpretation was not reasonable.  The court first determined that section 1188(a)(1) was not unambiguous in the way Overdevest claimed, finding that the canons of interpretation cited by Overdevest were irrelevant, and that purpose of the statute “was . . . not merely meant to protect qualified U.S. workers. The statute was also meant to protect all U.S. workers who would be hurt by an influx of foreign workers performing unskilled work.”  Id. at 8.    The court then reviewed whether the Secretary’s interpretation was reasonable, and found that it was because “[t]he regulation advances the statute’s purpose by ensuring that when H-2A workers are performing duties that do not implicate their qualifications, non-H-2A workers will not be placed at a disadvantage.”  Id. at 10.  The court rejected Overdevest’s argument that DOL had bifurcated section 1188(a)(1) in way to have improperly read out the “qualified” requirement.

Whether DOL’s 2010 rulemaking adequately explained the departure from the 2008 definition

The court next reviewed Overdevest’s argument that DOL had arbitrarily and capriciously promulgated the regulation in 2010, having failed to adequately explain the departure from the 2008 definition of corresponding employment.  The court rejected this argument, finding that DOL had explained that the 2008 definition had created an inconsistent regulatory framework, that it was essentially returning the original 1987 rule with an exception for which DOL provided an explanation.  

Whether DOL’s enforcement action was arbitrary and capricious; contention that regulations put employers in impossible position due to conflicting regulatory requirements

Finally, the court found that DOL’s enforcement action had not been arbitrary and capricious because of an alleged conflict between the 2010 rule and other regulations, and agreed with the Secretary that Overdevest

• . . . had several methods at its disposal to avoid running afoul of any of the Department’s regulations. Overdevest could have drafted narrower work orders and paid the H-2A workers for any idle hours needed to satisfy the three-fourths rule. See 20 C.F.R. § 655.122(i)(1)(iv) (“If during the total work contract period the employer affords the U.S. or H-2A worker less employment than that required . . . the employer must pay such worker the amount the worker would have earned . . . .”). Alternatively, Overdevest could have simply paid the domestic workers the same wage as H-2A workers whenever the H-2A workers were performing the same work. There was thus no inevitable conflict between the 2010 rule and other regulations, so the enforcement action against Overdevest was not arbitrary and capricious. Cf. Heckler v. Cmty. Health Servs., 467 U.S. 51, 60–64 (1984).

Slip op. at 13.

Vanegas v. Signet Builders, Inc., No. 21-cv-54 (W.D. Wisc. Aug. 12, 2021)(2021 U.S. Dist. LEXIS 151830) (Opinion and Order)

In Vanegas v. Signet Builders, Inc., No. 21-cv-54 (W.D. Wisc. Aug. 12, 2021)(2021 U.S. Dist. LEXIS 151830), Plaintiff, who was employed under a guestwork visa to build livestock confinement structures for farms in several states, alleged that Defendant violated the FLSA by failing to pay him overtime.  The court granted Defendant’s motion to dismiss because the work fell with the FLSA’s agricultural work exemption, and thus Plaintiff was not entitled to overtime.

The parties agreed that the work had not been primary agricultural work under FLSA § 203(f), but disputed whether it was secondary agriculture.  The court’s discussion focused on the regulation at 29 C.F.R. § 780.136 and the Supreme Court decision in Maneja v. Waialua Agricultural Co., 349 U.S. 254 (1955).  Under the facts of the case, the court found that Plaintiff was covered by the exemption.  As part of its detailed discussion of the pertinent caselaw, the court rejected an ALJ decision on the question in a TLN case.  The court wrote:

•      Luna Vanegas’s position does find support in N.L.R.B. v. Monterey County Building & Construction Trades Council, 335 F.2d 927 (9th Cir. 1964). In that case, the court held that construction workers employed by an independent contractor to construct buildings on poultry farms were not engaged in agriculture because the construction companies “are organized separately from any farming or poultry operations and are engaged in a productive activity which is independent from any farming or poultry operations.” Id. at 931. Luna Vanegas also cites a decision by a Department of Labor administrative law judge who reached a similar conclusion in a brief opinion. In re: MRL Fencing & Construction, No. 2012-TLN-00042 (Aug. 8, 2012).   But these cases are inconsistent with the reasoning of Maneja and with the regulations applying the secondary agriculture exemption, and they are against the weight of authority on the issue.   Indeed, only one other court has cited Monterey County with approval for this holding, doing so in a footnote without extended discussion. N.L.R.B. v. Scott Paper Co., 440 F.2d 625, 626 n.3 (1st Cir. 1971). The court is not persuaded that the cases cited by Luna Vanegas require anything more of independent contractors than § 203(f) explicitly states.

Slip op. at 8-9 (footnotes omitted).  The court concluded:

•      In sum, Luna Vanegas performed his work on farms, and the work he performed—constructing livestock containment structures—was incidental to farming, not related to a separately organized activity from farming operations. So his work fell within the FLSA’s exemption for secondary agriculture. The court will grant Signet’s motion and dismiss this case.

Id. at 9.

Compunnel Software Group v. Gupta, No. 19-1761 (2d Cir. Sept. 20, 2021) (2021 U.S. App. LEXIS 28300) (Summary Order) (not precedential)

Related to District Court:  S.D. N.Y. No. 14-cv-4790, and USDOL: ARB No. 16-056; ALJ No. 2011-LCA-00045

ENFORCEMENT OF VALID SETTLEMENT AGREEMENT ON AN H-1B ADMINISTRATIVE COMPLAINT THAT INCLUDED A PROVISION IN WHICH COMPLAINANT GAVE UP HIS RIGHT TO FURTHER LITIGATION ON THE MATTER

In Compunnel Software Group v. Gupta, No. 19-1761 (2d Cir. Sept. 20, 2021) (2021 U.S. App. LEXIS 28300) (not precedential), Appellant sought review of the district court's grant of summary judgment dismissing Appellant's repudiation of and collateral attacks on a settlement agreement on his H-1B administrative complaint. The Second Circuit found that the district court did not err in concluding that Appellant had entered into a valid settlement agreement with Defendant.

•     The record shows that Gupta, after negotiating with Compunnel about the payment schedule and terms of the release, signed the settlement agreement. The agreement provided that Compunnel would pay Gupta $28,000 “as payment in full and final compensation from [Compunnel] to Gupta arising from or in any way related to the employment of Gupta with [Compunnel].” More specifically, the parties agreed to “giv[e] up their right to a trial in connection with the allegations contained in the complaints filed with U.S. Department of Labor - Wage and Hour Division (WHD) against [Compunnel] or any other rights which are the subject of this Agreement and Stipulation including any rights in the administrative proceedings in [the ALJ, ARB, or district court cases].” Thus, the district court correctly ruled that the terms of the release contained in the settlement agreement were clear and unambiguous and enforced its terms accordingly.

Slip op. at 3-4.  The court found that Appellant's remaining arguments attacking the validity of the settlement agreement, and the ALJ's and ARB's authority to approve a facially valid settlement agreement, were meritless.  The court stated:  "... Gupta’s agreement with Compunnel is valid, it extinguished his claims against his former employer, the DOL’s ALJ and ARB properly approved the settlement, and the district court correctly granted Compunnel and the DOL summary judgment and denied relief on reconsideration."  Id. at 4.

United States v. Bedi, et al., 20-1955-cv, 2021 U.S. App. LEXIS 29478, 2021 WL 4468410 (2d Cir. Sept. 30, 2021)

Relates to ARB No. 14-096; OALJ No. 2012-LCA-00057; United States v. Bedi, et al., 453 F. Supp. 3d 563 (N.D.N.Y. 2020).

SECOND CIRCUIT HOLDS THAT COLLECTION ACTION BROUGHT BY DOL FOR BACK PAY OWED TO H-1B WORKER IS NOT A TYPE OF DEBT COVERED BY THE FEDERAL DEBT COLLECTION PROCEDURES ACT OF 1990

In United States v. Bedi, et al., 20-1955-cv, 2021 U.S. App. LEXIS 29478, 2021 WL 4468410 (2d Cir. Sept. 30, 2021) (relates to ARB No. 14-096; OALJ No. 2012-LCA-00057; United States v. Bedi, et al., 453 F. Supp. 3d 563 (N.D.N.Y. 2020)), the Appellant sought review of the district court’s grant of summary judgement in favor of the United States (“the Government”) on its claim to collect $341,000 in back wages to an H-1B administrative complainant under the Federal Debt Collection Procedures Act of 1990 (“FDCPA”).  The Appellants argued that the district court erred in granting summary judgement in the Government’s favor because an administrative award of back wages is not an amount “owing to the United States” under the FDCPA, and that the Second Circuit’s opinion to the contrary in NLRB v. E.D.P. Medical Computer Systems, Inc., 6 F.3d 951 (2d Cir. 1993) (“E.D.P.”) should be overturned.  

The Second Circuit held that a “debt” must be “owed to the United States” under the plain meaning of the operative provisions of the FDCPA.  The Second Circuit stated that the Government has no claim to the debt because the ALJ found that the H-1B worker was deprived of wages, and the Administrative Order required the Appellants to remit back wages to the H-1B worker rather than the United States. 

The Second Circuit found that its conclusion was supported by the legislative history of the FDCPA, which demonstrated that the FDCPA was “intended to address the growing problem of delinquent debt owing to the United States, in great measure due to high rates of default in various government loan programs.”  The Second Circuit stated that “[n]othing in the legislative history indicates that Congress enacted the FDCPA to aid in the enforcement of federal labor laws or to promote compliance with other obligations that are regulated by the Government but owed to private parties.”  

The Second Circuit stated that this interpretation accords with Nathanson v. NLRB, 344 U.S. 25 (1952), where the Supreme Court held that an award of back pay by the National Labor Relations Board was not a “debt owing [to] the United States” under provisions of the Bankruptcy Act that “parallel the FDCPA in terms of both their text and the legislative purpose that Congress sought to achieve.”  The Second Circuit further noted that E.D.P. has been expressly rejected by the First Circuit in United States v. Bongiorno, 106 F.3d 1027 (1st Cir. 1997), and the Fifth Circuit in Sobranes Recovery Pool I, LLC v. Todd & Hughes Construction Corp., 509 F.3d 216 (5th Cir. 2007).

The Second Circuit thus reversed the judgement of the district court, remanded the matter for a judgement in favor of the Appellants, and overruled E.D.P. as wrongly decided and inconsistent with the FDCPA.

S. Ill. Univ. Sch. of Med. v. United States Dep't of Labor, No. 18-cv-01092 (Nov. 23, 2021) (2021 U.S. Dist. LEXIS 228334) (Opinion and Order) (relates to ARB Nos. 16-064, -065, ALJ No. 2015-LCA-00023)

In S. Ill. Univ. Sch. of Med. v. United States Dep't of Labor, No. 18-cv-01092 (C.D. Ill. Nov. 23, 2021) (2021 U.S. Dist. LEXIS 228334), the court determined that the United States Department of Labor had  relied on substantial record evidence to reach a conclusion that was neither contrary to the law nor arbitrary and capricious, finding that the Southern Illinois University School of Medicine did not pay a physician working under an H-1B visa  the required wage under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 & 1182, et seq. (INA), and its implementing regulations, 20 C.F.R. § 655, Subparts H & I.

Persian Broad. Serv. Glob., Inc. v. Walsh, et al., No. 21-cv-00229 (C.D. Cal. Feb. 7, 2022) (2022 U.S. Dist. LEXIS 22783) (relates to ARB No. 2020-0017, ALJ No. 2016-LCA-00019)

TIMELINESS OF COMPLAINT AND BACK PAY; CENTRAL DISTRICT OF CALIFORNIA FINDS THAT “CONSISTENT AND CONTINUAL” FAILURE TO PAY REQUIRED WAGE, INCLUDING FAILURE TO PAY FOR NONPRODUCTIVE TIME, IS A CONTINUING VIOLATION, AND THAT ARB’S FINDING THAT AN EMPLOYER IS NOT RELIEVED OF PAYMENT OBLIGATIONS WHEN EXISTING EMPLOYEE FAILS TO RENEW VISA AND DEPARTS THE UNITED STATES TO PERFORM DUTIES ABROAD IS A REASONABLE INTERPRETATION OF INA AND REGULATIONS

In Persian Broadcast Service Global, Inc. v. Walsh, et al., 21-cv-00229, 2022 U.S. Dist. LEXIS 22783 (C.D. Cal. Feb. 7, 2022) (relates to ARB No. 2020-0017; ALJ No. 2016-LCA-00019), the court granted summary judgment in favor of the Appellee (USDOL) in a case where the ARB reversed the ALJ’s determination that the employee who filed a complaint with the Appellee was not an employee of the Appellant (Persian Broadcast Service Global, Inc.) who was entitled to a salary.

The Appellant filed a motion for summary judgment seeking review of the ARB’s findings that 1) the employee entered into employment with the Appellant; 2) the Appellant never effected a bona fide termination; 3) that the employee never entered into voluntary nonproductive status; and 4) any misrepresentations of the employee did not relieve the Appellant of its obligations.  The Appellee filed a cross motion for summary judgment.  The Appellant argued that no remedy is available to the employee because the employee’s administrative complaint was time barred.  The Appellant also argued that the calculation of back pay was arbitrary and capricious because it was not required to pay the employee under the second LCA because his E-3 visa expired and he left the country.  

The ARB’s Timeliness Finding

The ARB found that the employee’s complaint was timely, determining that the second LCA was binding because it was signed by the Appellant, certified by the Department of Labor, and constituted an obligation that the Appellant had to abide by until the LCA period expired or an exception to that obligation was satisfied.  The ARB also held that the Appellant was liable to pay wages for the duration of the second LCA, September 12, 2013, to September 12, 2015, and the reasons the Appellant provided for why the second LCA was invalid did not relieve it of its obligations.  The ARB thus concluded that a complaint filed on February 5, 2015, would be timely because any nonpayment of wages during the second LCA period would “would start the clock as a failure to perform an action, and the LCA period was still ongoing when [the employee] filed his complaint.”  The ARB noted that the Appellant notified the employee it could no longer pay him on July 11, 2014, and if this was considered an adverse action, then a complaint filed on February 5, 2015, would still be timely.  

The district court found that the administrative record indicated that the Appellant’s President signed a second LCA “to all four[ ](4) labor condition statements summarized,” including the requirement to pay at least “the local prevailing wage or the employer’s actual wage, whichever is higher, and pay for nonproductive time.”  The district court stated that neither the text of the INA, the regulations, or the LCA itself supported the Appellant’s argument that an employee’s non-renewal of an E-3 visa or the departure of an employee from the United States terminates the “period of authorized employment” thus discharging an employer’s responsibility to continue to pay the employee under the LCA.  The district court found that as an employer’s “consistent and continual failure to pay the required wage, including failing to pay for nonproductive time, is a continuing violation,” the employee’s complaint, filed in February 2015, was timely since it was filed within one year of the Appellant’s failure to pay the required wage under the LCA.  

The ARB’s Back Pay Award

The ARB found that the Appellant failed to pay the required wage under the first LCA and the second LCA.  The ARB found that since the Appellant’s President signed and filed both LCA’s with the Department of Labor, it was legally obligated to pay the specified wages until the LCA period expired unless an exception to that obligation applied.  The ARB determined that no exception applied because no bona fide termination occurred.

The district court affirmed the back pay award.  In doing so, the district court stated that the ARB correctly noted that the “plain language of the statue did not list an exception for the expiration of an existing E-3 worker's visa or for travel to outside the United States,” and the ARB properly rejected “such exceptions as being unauthorized.”  The district court noted that the ARB did not make a finding that an LCA is binding on an employer when an employee does not have an E-3 visa and never enters the United States.  Rather, the court noted that the ARB made a factual finding that the second LCA was binding because the employee “entered into employment” under the second LCA when he “entered the U.S. and began or continued working for [the Appellant] under the second LCA . . . .”  The court noted that the record supports the ARB’s finding that “Customs and Border Protection’s admission of the employee into the United States from September 2013 to September 2015—whether or not in error—was sufficient to authorize [the employee’s] employment under the second LCA, because he had already ‘made himself available to work’ and ‘received authorization for travel to the U.S.’ under the terms of the LCA.”  The court also briefly summarized additional facts supporting this finding.  

The court noted that the regulations are silent as to whether bona fide termination is still required to relieve an employer of its duty to pay wages when the Department of Labor has approved a second LCA for a previously authorized employee, and that employee has been admitted to the United States through Customs and Border Protection, even if that employee is no longer in the United States.  The court found that the ARB’s finding that the Appellant was not relieved of its payment obligations due to the employee’s failure to renew his visa and departure from the United States was a “reasonable interpretation of the statutory and regulatory ambiguities to which this Court must defer.”  The court thus found that “an employer remains bound by its wage obligations to an existing E-3 worker who can perform his duties abroad notwithstanding the worker's visa's expiration and overseas travel.”

Padilla Constr. Co. v. Walsh, et al., No. 18-cv-1214 (C.D. Cal. Nov. 2, 2022) 

Joint judgment in which DOL agreed to rescind the H-2B registration requirements at 20 C.F.R. §§ 655.11 and 655.12, and make conforming edits throughout 20 C.F.R. Part 655, Subpart A to remove references to the H-2B registration process through notice and comment rulemaking.