District court enjoins DOL's suspension of Bush Administration H-2A final rule
On June 29, 2009, a federal judge sided with several growers associations and issued an eleventh hour preliminary injunction against the US Department of Labor (DOL), preventing the agency from suspending for nine months a Bush Administration final rule implementing changes to the federal government’s H-2A temporary agricultural worker program, which allows US agricultural businesses to employ foreign workers in temporary or seasonal agricultural jobs ( North Carolina Growers Ass’n v Solis, MDNC, No 1:09-cv-00411-WO-WWD).
The growers associations, which include North Carolina Growers’ Association, Inc, the National Christmas Tree Association and the National Council of Agricultural Employers, among others, sought preliminarily injunctive relief, alleging that the DOL’s suspension of the H2-A rule and decision to reinstate for a period of nine months the old rule violated the Administrative Procedures Act’s requisite rulemaking procedures. Noting that at the preliminary injunction stage, the court “has not been required to, nor has it attempted to evaluate the substantive merits of any of administrative rules or regulations,” Osteen used a “balance of hardships test” to determine which party would suffer actual and immediate irreparable harm should the injunction not be granted. Siding with the plaintiffs, Osteen determined that they would suffer irreparable harm as a result of the increase in wages they will be required to pay workers if the DOL suspends the current rule and reinstates the rule that was previously in place. Simultaneously, the court ruled that the DOL would suffer little harm from the injunction, and in fact, the DOL has not directly stated the manner in which they are likely to suffer harm if a preliminary injunction is granted.
The court also determined that the plaintiffs would likely succeed on the merits. The DOL concede that the its suspension of the 2008 rule and reinstatement of the 1987 rule constituted “rule making,” which required public comments. It is not know if DOL will appeal the temporary injunction.
Prior to taking effect, the final rule was subject to another challenged in court by the United Farm Workers. On January 15, 2009, US District Court Judge Ricardo M. Urbina of the District of Columbia denied the United Farm Workers' (UFW) motion for a temporary restraining order (TRO) and preliminary injunction to postpone the effective date of the rule ( United Farm Workers v Chao, DDC, No. 09-00062). In his holding, Judge Urbina ruled that the United Farm Workers failed to make a showing of “likely imminent and irreparable harm.” He wrote: “the plaintiffs have not presented sufficient evidence that any plaintiff is likely to suffer immediate decreased wages, increased transportation costs or loss of employment. Based on the speculative injuries alleged by the plaintiffs, the court cannot conclude that the plaintiffs have met the 'high standard for irreparable injury' sufficient to warrant the extraordinary relief of a TRO.” The union since appealed their case to the DC Circuit Court of Appeals.
The DOL issued the final notice of suspension in the May 29, 2009, Federal Register ( ¶69,072D). The suspension of the was to have taken effect on June 29, 2009. To ensure continued functioning of the H-2A program, after the suspension was to take effect, the DOL was set to reinstate for a period of nine months the regulations that were in place on January 16, 2009, after which the DOL would either have engaged in further rulemaking or lift the suspension. More information on the H2-A program can be found at: http://www.foreignlaborcert.doleta.gov.
The H-2A temporary agricultural visa program establishes a means for agricultural employers in the US who anticipate a shortage of domestic workers to bring nonimmigrant foreign nationals to the US to perform agricultural labor or services of a temporary or seasonal nature. The H-2A nonimmigrant classification applies to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the United States on a temporary basis. Employment of a seasonal nature is employment that is tied to a certain time of year by an event or pattern, such as a growing season, and requires labor levels far above those necessary for ongoing operations. Under the regulations being modified by the final rule, employment is of a temporary nature if the employer's need for the worker will, except in extraordinary circumstances, last no longer than a year.
Reprinted with permission. © CCH
(Submitted July 7, 2009)
<p>District court enjoins DOL's suspension of Bush Administration H 2A final rule On June 29, 2009, a federal judge sided with several growers associations and issued an eleventh hour preliminary injunction against the US Department of Labor (DOL), preventing the</p>
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