Comite' De Apoyo a Los Trabajadores Agricolas v. Perez , 774 F.3d 173 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-3557
________________
COMITE´ DE APOYO A LOS TRABAJADORES AGRICOLAS;
PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE;
NORTHWEST FOREST WORKER CENTER;
JESUS MARTIN SAUCEDA PINEDA;
JUAN DOE,
Appellants
v.
THOMAS E. PEREZ, In His Official Capacity as United
States Secretary of Labor; UNITED STATES
DEPARTMENT OF LABOR; ERIC M. SELEZNOW,
In His Official Capacity as Acting Assistant Secretary for
Employment and Training
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-14-cv-02657)
Honorable Legrome D. Davis, Jr., District Judge
________________
Argued October 23, 2014
BEFORE: FUENTES, GREENBERG, and
COWEN, Circuit Judges
(Filed: December 5, 2014)
______________
Sarah M. Classen
Centro de los Derechos del Migrante, Inc.
519 North Charles Street
Suite 260
Baltimore, MD 21201
Vanessa A. Coe
Gregory S. Schell
Florida Legal Services, Inc.
508 Lucerne Avenue
Lake Worth, FL 33460
D. Michael Dale
Northwest Workers’ Justice Project
812 Southwest Washington
Suite 1100
Portland, OR 09205
Arthur N. Read
Friends of Farmworkers, Inc.
699 Ranstead Street
Suite 4
Philadelphia, PA 19106
Meredith B. Stewart
2
Southern Poverty Law Center
1055 Saint Charles Avenue
Suite 505
New Orleans, LA 70130
Edward J. Tuddenham (argued)
228 West 137th Street
New York, NY 10030
Attorneys for Appellants
Stuart F. Delery
Assistant Attorney General
Glenn M. Girdharry
Senior Litigation Counsel
Geoffrey Forney (argued)
Senior Litigation Counsel
United States Department of Justice
Office of Immigration Litigation
Room 6223
450 5th Street, N.W.
Washington, DC 20530
Attorneys for Appellees
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
3
I. INTRODUCTION
This appeal is concerned with the ripeness doctrine, a
constitutional mandate derived from Article III’s requirement
that federal courts hear only cases or controversies. U.S. Const.,
Art. III, § 2. The doctrine assists courts in avoiding the need to
address speculative cases, in deferring to administrators with
subject matter expertise, and in deciding cases on the basis of
fully-developed records. The Supreme Court has explained that
the question of whether a controversy is “ripe” for judicial
resolution has two aspects that require a court to evaluate both
the fitness of the issues for judicial decision and the possible
hardship to the parties if it withholds consideration of a case
presented to it. To some extent these inquiries require a court to
exercise judgment, rather than to apply a black-letter rule.
Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507,
1515 (1967).
In this case involving rules applying to the admission of
certain foreign workers into the United States for temporary
employment, we are mindful of the foregoing considerations and
give due regard to the expertise exercised by the Department of
Labor (“DOL”), the implicated agency principally involved in
this case, and the historical shifts and political compromises
underlying the DOL’s adoption of the rules at issue.
Furthermore, in view of the subject matter of this litigation, we
are concerned with the congressional policy to protect American
workers from a depression of their wages attributable to the
entry of foreign workers into the domestic labor market.
Plaintiffs appeal from an order of the District Court
dismissing their challenge to 20 C.F.R. § 655.10(f), a DOL
4
regulation applicable in the administration of the H-2B visa
program that authorizes the Department of Homeland Security
(“DHS”) to admit certain unskilled foreign workers into this
country for temporary employment. On this appeal, we are
concerned with an aspect of the H-2B program, the 2009 Wage
Guidance, which authorizes employers to use privately-funded
wage surveys to set the prevailing market wage for certain
occupations. The Court at the outset of its consideration of the
case invoked the ripeness doctrine when it made a determination
that the matter was not at that time justiciable and, accordingly,
the Court would not consider the merits of plaintiffs’ challenge
to the regulation. Comité de Apoyo a Los Trabajadores
Agricolas v. Perez, No. 14-2657, 2014 WL 4100708 (E.D. Pa.
July 23, 2014) (CATA III). We determine that this case is ripe
for judicial review, render judgment for plaintiffs, and hold that
20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary
and capricious and in violation of the APA. We order vacatur of
20 C.F.R. § 655.10(f) and the 2009 Wage Guidance.1
II. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Plaintiffs based their complaint challenging 20 C.F.R. §
1The District Court dismissed without prejudice on justiciability
grounds related litigation in Comité de Apoyo a Los
Trabajadores Agricolas v. Perez, No. 13-7213, 2014 WL
3629528, ____ F. Supp. 2d ____ (E.D. Pa. July 23, 2014), a case
in which the plaintiffs sought judicial review of certain actions,
decisions, and rules in the administration of the H-2B program.
5
655.10(f) and DOL’s 2009 Wage Guidance on the
Administrative Procedure Act (“APA”). This case is another
step in a long-running controversy concerning the administration
of the H-2B program. Resolution of discrete disputes arising
from the controversy have led to this Court and district courts
setting out the factual background and procedural history of the
controversy in previous opinions. See Comité de Apoyo a los
Trabajadores Agrícolas v. Solis, No. 2:09-240 LP, 2010 WL
3437761 (E.D. Pa. Aug. 30, 2010) (CATA I); Comité de Apoyo
a los Trabajadores Agrícolas v. Solis, 933 F. Supp. 2d 700 (E.D.
Pa. 2013) (CATA II); La. Forestry Ass’n, Inc. v. Solis, 889 F.
Supp. 2d 711 (E.D. Pa. 2012), aff’d sub nom. La. Forestry Ass’n
Inc. v. Secretary, U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir.
2014). Thus, though the issues we now address are new, we are
not writing on a blank slate.
A. The H-2B Visa Program
The H-2B visa program—named for the statutory section
which authorized its creation2— allows United States employers
to arrange for the admission of foreign workers (“H-2B
workers”) into the United States to perform temporary unskilled
non-agricultural work. The governing criteria of the program
were established through a process requiring the accommodation
of political interests; the program balances employers’
temporary need for unskilled foreign workers against the need to
protect United States workers’ employment, salaries, and
working conditions. In furtherance of these considerations, the
Immigration and Nationality Act (“INA”) authorizes the
2
Immigration and Nationality Act, Pub. L. No. 82-414, §
101(a)(15)(H)(ii)(B), 66 Stat. 163, 168 (1952).
6
issuance of H-2B visas only in cases in which employers
demonstrate that the employment of foreign workers admitted
under the program will not adversely affect the wages and
working conditions of United States workers. 8 U.S.C. §§
1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II).
DHS and DOL currently administer the H-2B program.
The INA confers broad authority on DHS to admit aliens into
this country and to promulgate regulations governing the
issuance of nonimmigrant visas. 8 U.S.C. § 1184(a)(1). The H-
2B program establishes a method for the issuance of visas
differing from the ordinary practice by which a person seeking
to be admitted into the United States applies for a visa because
under the H-2B program the putative employer, not the person
seeking to be admitted, makes the application. Prior to filing an
H-2B petition with DHS, an employer must obtain a temporary
labor certification from the Secretary of Labor. 8 C.F.R. §
214.2(h)(6)(iii) (2011). That certification constitutes DOL’s
“advice” that DHS should grant the requested H-2B visa and
must confirm that: (1) qualified workers are not available in the
United States to perform the employment for which foreign
workers are sought, and (2) the aliens’ employment will not
adversely affect wages and working conditions of similarly
employed United States workers. 8 C.F.R. § 214.2(h)(6)(iii)(A),
(iv)(A). DHS regulations provide for DOL to “establish
procedures” for issuing labor certifications within these
confines. 8 C.F.R. § 214.2(h)(6)(iii)(D). Inasmuch as the
availability of workers is related to the wage offered for the
employment because the higher the wage the greater the
likelihood that domestic workers can be found for the
employment, DOL issues labor certifications that certify that the
7
employment is not being filled by United States workers at the
occupation’s “prevailing wage.” Labor Certification Process
and Enforcement for Temporary Employment in Occupations
Other Than Agriculture or Registered Nursing in the United
States (H-2B Workers), and Other Technical Changes, 73 Fed.
Reg. 78,020-01, 78,056 (Dec. 19, 2008) (codified at 20 C.F.R. §
655.10(b)(2)).
B. Calculation of Prevailing Wages
DOL through its H-2B procedures long has sought to
avoid causing adverse effects on American workers’ wages and
working conditions from the admission of foreign workers by
requiring H-2B employers to offer and pay at least the
prevailing wage both to the H-2B workers and to the United
States workers engaged for the employment opportunity. To
facilitate compliance with this requirement, DOL has from time
to time published specific guidelines governing the system by
which it will determine the prevailing wage for the employment
that an employer is seeking to fill with foreign workers.
Over the years, DOL has changed its method for
calculating prevailing wages on several occasions, often without
giving interested parties notice of its intent to make the changes
or the opportunity to comment on the contemplated changes, and
has made the changes without explanation. Initially, DOL
advised state workforce agencies that became involved in the
administration of the program to calculate a single prevailing
wage for any given occupation in the area of intended
8
employment.3 In 1995, DOL altered its methodology to
determine the level of prevailing wages by creating multiple
prevailing wages for each H-2B occupation. DOL initially
divided each H-2B occupation into two skill levels—“entry
level” (“Level I”) or “experienced level” (“Level II”)—and
calculated a prevailing wage for each level.4 But in 2005, DOL
went further in the “2005 Wage Guidance” and divided H-2B
occupations into four skill and wage levels, “specialty
occupations,” borrowing from a system that Congress created to
calculate prevailing wages for the separate H-1B program
dealing with the admission of skilled workers. The DOL
effectuated these changes through guidance letters without
public notice or seeking comment comparable to the procedure
followed when rules are adopted in an APA formal rulemaking
process.
Prior to 2005, DOL required the use of wage rates
established on the basis of government programs such as those
under the Service Contract Act (“SCA”) or the Davis Bacon Act
(“DBA”), but in March 2005, DOL changed its approach
through the 2005 Wage Guidance, which, in the absence of a
3
See Department of Labor, General Administration Letter
(GAL) 10-84, “Procedures for Temporary Labor Certifications
in Non Agricultural Occupations” (Apr. 23, 1984).
4
See Department of Labor, “Interim Prevailing Wage Policy for
Nonagricultural Immigration Programs” (May 18, 1995)
available at http://wdr.doleta.gov/directives.
9
collective bargaining agreement (“CBA”), permitted the
prevailing wage rate to be set using either private employer
surveys or a Bureau of Labor Statistics Occupational
Employment Statistics (“OES”) survey. Subsequently, on
December 19, 2008, DOL adopted the “2008 Wage Rule,”
which states: “the prevailing wage for labor certification
purposes shall be the arithmetic mean . . . of the wages of
workers similarly employed at the skill level in the area of
intended employment.” 73 Fed. Reg. 78,020, 78,056 (Dec. 18,
2008) (codified at 20 C.F.R. § 655.10(b)(2)) (emphasis added).
By specifying that a given prevailing wage is set “at the skill
level” for the intended employment, the 2008 Wage Rule directs
DOL to divide each H-2B occupation into four separate skill
levels and calculate a prevailing wage for each level. 20 C.F.R.
§ 655.10(b)(2). The 2008 Wage Rule requires that, in the
absence of a CBA, prevailing wage rates are to be determined
on the basis of either a private employer survey or data derived
from an OES survey. DOL did not seek comments on the use of
the four-level wage methodology for determining prevailing
wages when promulgating the 2008 Wage Rule.
Even though DOL did not seek public comments on the
use of this four-level methodology in the H-2B program prior to
adopting these rules, interested parties submitted comments to it
contending that use of “skill level” prevailing wages made no
sense in the context of low-skill H-2B jobs and that their
adoption resulted in wage depression. The comments also
criticized DOL’s decision to permit the use of employer surveys
when valid OES wage data was available for setting a prevailing
wage because employer surveys would be used to undercut
wages that would have been based on OES surveys to the
10
detriment of both American and foreign H-2B workers. 73 Fed.
Reg. at 78,031; A386-409 (Low Wage Worker Legal Network
July 2008 comments ETA 2008-0002-0088). DOL did not
respond to those comments, instead continuing to set skill-level
OES wages and evaluate employer surveys submitted pursuant
to these regulations using the later-adopted 2009 Wage
Guidance.5 The 2009 Wage Guidance established a
methodology by which the OES survey data for an occupation
would be manipulated mathematically to produce four different
prevailing wages, one for each of four skill levels within an
occupation.
C. Prelude to the Present Litigation
Organizations representing H-2B and United States
workers challenged 20 C.F.R. § 655.10(f) and the 2009 Wage
Guidance in CATA I. These plaintiffs asserted that the vast
majority of H-2B jobs were low-skilled occupations filled by
laborers, housekeeping cleaners, and amusement park workers,
or persons in similar low-skilled employment, and that the rules
recognized artificial skill distinctions that allowed employers to
bring foreign workers into the country for employment at wages
substantially below the average wage for an occupation, to the
detriment of United States workers.
5
DOL republished the 2005 Wage Guidance in November 2009
as the 2009 Wage Guidance. See Employment and Training
Administration, Prevailing Wage Determination Policy
Guidance, Nonagricultural Immigration Programs (Nov. 2009),
A135-70. The 2009 Wage Guidance never was subject to notice
and comment.
11
On August 30, 2010, a district court in CATA I held that
DOL improperly promulgated the “skill level” 2008 Wage Rule.
The court reasoned:
In the absence of any valid regulatory language
authorizing the use of skill levels in determining
the prevailing wage rate . . . the four-tier structure
of skill levels set out in the guidance letters—
which is entirely untethered from any other
statutory or regulatory provisions, and which
affirmatively creates the wages paid to H–2B
workers—constitutes a legislative rule which
must be subjected to notice and comment. It has
not been so subjected and it . . . is therefore
invalid.
2010 WL 3431761, at *19. In invalidating the words “at the
skill level,” the court stressed that “DOL has never explained its
reasoning for using skill levels as part of H-2B prevailing wage
determinations” and that the system never has been subject to
notice and comment, as the APA requires. Id. at *19, 25.
The district court further found that DOL’s errors in
promulgating the 2008 Wage Rule were “serious” and of a
magnitude that counseled in favor of vacating the rule. Id. at
*25 (“[W]hile the use of skill levels in 20 C.F.R. § 655.10 is
invalid for lack of a rational explanation, DOL’s failure to
provide an explanation for using skill levels in the H–2B
program constitutes a recurring issue stretching over more than a
decade, and DOL was, in the context of the 2009 rulemaking,
presented with comments alleging fundamental problems with
the use of skill levels in the H–2B program.”). Nonetheless, in
12
view of the circumstance that the court was invalidating the rule
due to DOL’s procedural rather than substantive errors, it did
not vacate the portion of the 2008 Wage Rule providing for
skill-level methodology; instead, the court remanded the case to
DOL and ordered it to promulgate a replacement rule within 120
days, pursuant to the APA’s procedures for notice and comment.
Id.Pursuant to that order, DOL issued a notice of proposed
rulemaking. This notice stated that the 2008 Wage Rule’s skill-
level methodology did not comply with DOL’s regulatory and
statutory mandate because the methodology did not produce
“the appropriate wage necessary to ensure that U.S. workers are
not adversely affected by the employment of H-2B workers.”
Wage Methodology for the Temporary Non-Agricultural
Employment H-2B Program, 75 Fed. Reg. 61,578-01, 61,579
(Oct. 5, 2010). Following notice and comment, DOL announced
a revised prevailing wage rule in January 2011 (“the 2011 Wage
Rule”). Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program, 76 Fed. Reg. 3452-
0176 (Jan. 19, 2011). The 2011 Wage Rule prohibits use of
private surveys 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. Id. at 3467.
The 2011 Wage Rule’s preamble explains that the Rule was
promulgated in response to findings that the 2008 Wage Rule
“artificially lowers . . . wage[s] to a point that [they] no longer
represent[ ] market-based wage[s] for the occupation.” Id. at
3477. The preamble concludes: “continuing the current
calculation methodology . . . does not provide adequate
13
protections to U.S. and H-2B workers,” violating both the INA
and DHS mandates. Id. at 3471, 3477. Though employer
associations challenged the 2011 Wage Rule, we upheld the rule
in Louisiana Forestry, 745 F.3d 653.
D. Continued Use of Skill-level Definition of
Prevailing Wage Leads to the Present Suit.
Notwithstanding the district court’s 2010 order and the
promulgation of the 2011 Wage Rule, DOL has continued to use
20 C.F.R. § 655.10(f) and the 2009 Wage Guidance, as it has
postponed the 2011 Wage Rule’s effective date on several
occasions because the 2011 Wage Rule was subject to
congressional appropriations riders precluding its
6
implementation. As a result, DOL continued to evaluate labor
certificates using the 2008 skill-level definition of prevailing
wage. Plaintiffs, no doubt frustrated by this course of events,
returned to the district court, and, on March 21, 2013, that court
6
See Consolidated and Further Continuing Appropriations Act,
2012, Pub. L. 112-55, 125 Stat. 552, Div. B, Title V § 546
(2011); Consolidated Appropriations Act, 2012, Pub. L. 112-74,
125 Stat. 786, Div. F, Title I § 110 (2011); Continuing
Appropriations Resolution, 2013, H.J. Res. 117, 112th Cong.,
126 Stat. 1313 (2012); Consolidated and Further Continuing
Appropriations Act, 2013, Pub. L. 113-6, 127 Stat 198, Div. F,
Title 5 (2013). But funds for the 2011 Wage Rule finally were
authorized on January 17, 2014, just prior to our decision
upholding the rule in Louisiana Forestry, 745 F.3d 653. See
Consolidated Appropriation Act, 2014, Pub. L. 113-76, 128
Stat.51.
14
invalidated the skill-level definition of prevailing wage in
CATA II, 933 F. Supp. 2d at 711-12.
DOL and DHS responded to CATA II by promulgating
an Interim Final Wage Rule (“IFR”) pursuant to the APA “good
cause” exception to notice and comment rulemaking. 5 U.S.C. §
553(b)(B), (d)(3). The IFR eliminated the use of skill levels
from the definition of prevailing wage, but continued the
practice of allowing a prevailing wage to be set by use of either
an OES or private wage survey.7 78 Fed. Reg. 24,047, 24,061
(Apr. 24, 2013) (codified at 20 C.F.R. § 655.10(b)(2) (2013)).
We note that DOL allowed this unlimited use of private surveys
despite its 2011 findings that such surveys are unreliable and
should only be used in extraordinary circumstances.
The promulgation of the IFR caused DOL to abandon the
use of the 2008 Wage Rule and 2009 Wage Guidance to derive
four skill-level prevailing wages from the OES survey. Instead
it set the OES prevailing wage at the mean wage for each
occupation and area of employment. 78 Fed. Reg. at 24,053,
24,058-59. However, the IFR had no effect on DOL’s use of
private employer surveys in the calculation of prevailing wages
as DOL continued to evaluate private surveys using the skill-
7
The IFR defines the prevailing wage as “the arithmetic mean . .
. of the wages of workers similarly employed in the area of
intended employment. The wage component of the BLS
Occupational Employment Statistics Survey (OES) shall be used
to determine the arithmetic mean, unless the employer provides
a survey acceptable to the
OFLC under paragraph (f) of this section.” 20 C.F.R. §
655.10(b)(2) (2013).
15
level definition of prevailing wage.
The IFR, however, was hardly DOL’s last word on the H-
2B prevailing wage matter, for on March 14, 2014, the Secretary
of Labor and DOL notified the regulated community that DOL
“intends to publish a notice of proposed rulemaking on the
proper wage methodology for the H-2B program working off of
the 2011 Wage Rule as a starting point.” 2014 H-2B Notice, 79
Fed. Reg. at 14,450. DOL stated that it “will consolidate our
current review of comments on the 2013 IFR with review of
comments received on the new notice of proposed rulemaking,
and will issue a final rule accordingly.” Id. Nevertheless, we
cannot be certain if the new rule will be promulgated, or, if
promulgated, become effective, because, among other possible
impediments, its implementation depends on the availability of
congressional funding and Congress might withhold the funding
as it has in the past with earlier DOL rules. Moreover, unless
and until a new final rule becomes effective, DOL will continue
to approve skill-level prevailing wages based on private wage
surveys. See 78 Fed. Reg. at 24,054 n.13 (indicating intent to
continue to evaluate private surveys using 2009 Wage
Guidance).
Notwithstanding the March 14, 2014 notification,
plaintiffs, facing an uncertain picture, on May 8, 2014, sued
Thomas Perez in his official capacity as Secretary of Labor to
challenge the lawfulness of the continued use of private wage
surveys. Plaintiffs contend that the use of such private wage
surveys violates the district court’s order in CATA II, 933 F.
Supp. 2d 700, and that the challenged rules are arbitrary and
contrary to law and were adopted in excess of DOL’s
jurisdiction in violation of the APA. Plaintiffs then sought a
16
preliminary injunction enjoining use of the challenged rules and
moved for summary judgment.
After a hearing on the motion for a preliminary
injunction, the District Court in CATA III dismissed the case
without prejudice on July 23, 2014, on the ground that the
proposed 2014 or 2015 rule-making process could result in a
prospective change of the rules at issue such that plaintiffs’
challenge was not ripe for adjudication. Plaintiffs filed a timely
notice of appeal, and sought our expedited consideration of the
appeal. We granted that request and now decide the case.
III. JURISDICTION
The District Court had jurisdiction over this APA case
pursuant to 28 U.S.C. §§ 1331 and 1346, and we have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 even
though the dismissal was without prejudice. See Lichoolas v.
City of Lowell, 555 F.3d 10, 13 (1st Cir. 2009).
IV. STANDARD OF REVIEW
Our review of the District Court’s dismissal on ripeness
grounds is plenary. See Taylor Inv., Ltd. v. Upper Darby Twp.,
983 F.2d 1285, 1289 (3d Cir. 1993). We also review APA-
based challenges on a de novo basis, “apply[ing] the applicable
standard of review to the underlying agency decision.” La.
Forestry, 745 F.3d at 669 (citing Cyberworld Enter. Techs. Inc.
17
v. Napolitano, 602 F.3d 189, 195-96 (3d Cir. 2010)). In
exercising our jurisdiction, we note that it is “generally
appropriate” for an appellate court to reach the merits of an issue
even if the district court has not done so, provided that, as here,
“the factual record is developed and the issues provide purely
legal questions upon which an appellate court exercises plenary
review.” Hudson United Bank v. LiTenda Mortg. Corp., 142
F.3d 151, 159 (3d Cir. 1998).
V. DISCUSSION
A. The District Court Erred in Finding This Case Not
Ripe.
The District Court concluded that plaintiffs’ challenge
was not ripe for adjudication because it believed that DOL
should be permitted to review and rule on issues involving labor
certification, at least in the first instance, without intervention
from the judiciary. Although we do not doubt that ordinarily
DOL rather than a court should make administrative
determinations of the type at issue here, the history of this case
convinces us that we should intervene at this time because the
fact that DOL plans to reconsider the appropriateness of the use
of private wage surveys does not mean that plaintiffs’ challenge
is unripe. See Am. Paper Inst. v. EPA, 996 F.2d 346, 355 n.8
(D.C. Cir. 1993) (finding case ripe even though EPA was
considering rulemaking which could moot case); Am. Petroleum
Inst. v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990) (rejecting
EPA argument that planned rulemaking rendered case unripe
and noting “an agency always retains the power to revise a final
18
rule through additional rulemaking. If the possibility that
amendments to a rule was sufficient to render an otherwise fit
challenge unripe, review could be deferred indefinitely.”).
As we have explained, courts require a case to be ripe to
be adjudicated to avoid becoming entangled in premature
adjudication. Abbott Labs., 387 U.S. at 148, 87 S.Ct. at 1515.
With regard to administrative agency actions, considerations of
ripeness reflect the need “to protect . . . agencies from judicial
interference until an administrative decision has been formalized
and its effects felt in a concrete way by the challenging parties.”
Id. at 148-49, 87 S.Ct. at 1515. When deciding if a case is ripe
for adjudication, a court must consider (1) the fitness of the
issues for judicial decision and (2) the hardship to the parties
from withholding judicial consideration. Id. When making a
“fitness for review” determination, a court considers whether the
issues presented are purely legal, and the degree to which the
challenged action is final. A court must consider whether the
claims involve uncertain and contingent events that may not
occur as anticipated or may not occur at all. See Phil. Fed'n of
Teachers v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998). We have
taken these considerations into account and now determine that
it is appropriate to subject the issues presented here to judicial
review at this time, and that further delay may cause plaintiffs to
suffer unjustifiable hardship. Moreover, we are satisfied that
plaintiffs are entitled to relief. Thus, we will reverse the order
of July 23, 2014, grant relief, and remand the matter to the
District Court for further proceedings.
1. This Case Is Fit for Judicial Resolution.
We are satisfied that DOL’s wage determinations
19
predicated on private wage surveys are final agency actions. We
come to this conclusion even though the District Court found
that “DOL [has] not yet taken a final position – specifically
here, as to whether prevailing wage determinations under 20
C.F.R. § 655.10(f) using the 2009 Wage Guidance are valid,
enforceable, and the specific wage methodology to be used.”
CATA III, 2014 WL 4100708, at *8. Notwithstanding the
District Court’s view, it is uncontested that both 20 C.F.R. §
655.10(f) and the 2009 Wage Guidance have been in place for
years, and DOL has been using them regularly when acting on
labor certification applications.
DOL’s use of the challenged rules distinguishes this
proceeding from cases the District Court cited in its opinion as
in those cases the agencies involved had not implemented the
challenged rule. See Felmeister v. Office of Att’y Ethics, 856
F.2d 529, 535-37 (3d Cir. 1988) (challenge to attorney
advertising rule not ripe where ethics committee had yet to
interpret the rule and plaintiff had never submitted
advertisement for approval); Wearly v. FTC, 616 F.2d 662, 666-
68 (3d Cir. 1980) (challenge to subpoena not ripe where agency
had not made a decision to enforce the subpoena); AT&T Corp.
v. FCC, 369 F.3d 554 (D.C. Cir. 2004) (challenge not ripe
because the FCC reserved judgment on whether safeguards were
necessary and its policy remained undetermined). This case is
different because DOL’s ongoing use of 20 C.F.R. § 655.10(f))
and 2009 Wage Guidance to approve private wage surveys
demonstrates that DOL has taken a “final” position for the
purposes of our ripeness determination. This finality is not
undermined even though the present rules may not remain
DOL’s last position with regard to H-2B program rules. See
20
Philadelphia Fed’n, 150 F.3d at 323.
The use and effect of DOL’s rules allowing private
surveys in prevailing wage determinations make this case
analogous to Center for Biological Diversity v. EPA, 722 F.3d
401 (D.C. Cir. 2013), a case in which the Court of Appeals for
the District of Columbia Circuit rejected a ripeness argument
seeking dismissal of a challenge to a temporary regulation the
EPA had committed to replace by a date certain. The court
found the case ripe because the issues were “purely legal” and
“sufficiently final” and the challenged regulation was causing
injury to the plaintiff. Id. at 408. Cobell v. Babbitt, 30 F. Supp.
2d 34 (D.D.C. 1998), is similarly instructive. In Cobell, the
Department of the Interior argued that a challenge to individual
Indian trust account (IIM) procedures was not ripe because the
challenged procedures were interlocutory. Id. at 34. The court
rejected that argument, stating:
Although the defendants surely can, and by their
own admission should, reform the IIM trust
accounting system, the deficiencies of their
present system do not defeat its review on the
grounds of finality. The system chosen by the
defendants is being used in the administration of
the plaintiffs’ accounts. The fact that the
defendants have the power to change the system
cannot render the present system they have
chosen to be one interlocutory in nature.
Id. (emphasis added). The Cobell court emphasized that the
Department was making ongoing use of the IIM system and that
the plaintiffs had no choice but to have their accounts
21
administered under that system. The accounting system was
thus “final” for the purposes of a ripeness determination,
although it was interlocutory in the sense that it was subject to
further evaluation. See also Am. Paper, 996 F.2d at 355 n.8.
The District Court also relied on National Treasury
Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.
Cir. 1996), for the proposition that the Court would conserve
judicial resources by delaying adjudication of the dispute until
DOL had completed its review and rule-making procedures.
National Treasury, however, is unpersuasive with respect to the
matter before us. That case involved a challenge to the Line
Item Veto Act, which, although signed into law, would not go
into effect until the President submitted a balanced budget. Id.Because it was unclear whether this triggering event ever would
occur and, if so, when, and application of the Act could not
harm the plaintiffs until such time, the court concluded that it
would be a waste of judicial resources for it to entertain the
challenge. Id. at 1430. Here, in contrast to the situation in
National Treasury, plaintiffs’ harm is not contingent on some
triggering event; DOL is using the challenged rules on an
ongoing basis in the administration of the H-2B program.
Accordingly, this case is presently fit for adjudication.
2. Withholding Judicial Consideration
Considerably Harms Plaintiffs.
The second prong of our ripeness analysis requires that
we evaluate the hardship that may be imposed on the parties if
the courts deny judicial review at this time, and determine
whether the challenged action has a “direct and immediate”
impact on the parties. See Abbott Labs., 387 U.S. at 152, 87
22
S.Ct. at 1517.
The DOL’s evaluation of employer surveys using the
skill-level provisions of 20 C.F.R. § 655.10(f) and the 2009
Wage Guidance is adversely affecting United States workers by
forcing them to accept depressed wages or face being replaced
by foreign H-2B workers. Indeed, the District Court recognized
that the workers were suffering this injury and noted that
“Plaintiffs . . . will have every opportunity to participate in the
new rulemaking planned for 2014-2015.” CATA III, 2014 WL
4100708, at *10. But the possibility that plaintiffs will be able
to participate in some future rulemaking that may or may not
lead to a change in the rules does not ameliorate the harm that
DOL’s current use of those rules is causing plaintiffs now.
DOL is not delaying or conditionally issuing its labor
certifications during its internal deliberations; rather, it is using
the directives of 20 C.F.R. § 655.10(f) and the 2009 Wage
Guidance to issue certifications. Thus, we are facing a different
landscape than would have been the case if DOL suspended
issuing certifications based on private surveys or only issued
certifications conditioned on the employer’s promise to make
retroactive adjustments to the wages of the foreign workers
taking into account the results of DOL’s future rulemaking. See
CATA I, 2010 WL 4823236, at *3 (DOL has authority to issue
conditional certifications). Instead, it argues that 20 C.F.R. §
655.10(f) and the 2009 Wage Guidance lack finality even
though it is continuing to use them when issuing final labor
certifications.
It seems clear that each time DOL uses the challenged
rules to certify to DHS that an application using a private survey
23
wage “will not adversely affect U.S. workers” pursuant to 8
C.F.R. § 214.2(h)(6)(iv)(A), DOL is making a final economic
determination as to both the validity of the survey and the
economic effect of the survey wage.8 And despite some hedging
by appellees during oral argument before us, it is evident that
DOL’s continuing issuance of labor certifications based on the
8
DOL asks this Court to affirm the District Court’s dismissal
based on what DOL itself characterizes as an extension of the
ripeness doctrine. The only case DOL cites in support of its
“extension” argument is American Petroleum Institute v. EPA,
683 F.3d 382 (D.C. Cir. 2012), a case in which a trade
association of petroleum refineries petitioned for review of a
2008 EPA rule deregulating hazardous secondary material but
not addressing “spent refinery catalysts.” The challenged rule
stated that the decision not to deregulate spent refinery catalysts
was “tentative” and that EPA would “address the catalysts in a
separate proposed rulemaking.” Id. at 386. While the case was
on appeal, the EPA issued a notice of proposed rulemaking
which indicated that it intended to treat spent refinery catalysts
the same as other hazardous secondary material. Id. at 388. The
court found that the tentative 2008 rule was causing the
plaintiffs little harm and held the appeal in abeyance pending the
completion of the new rulemaking. Id. at 389-90. We find the
matter before us to be quite different. Here, there is nothing
“tentative” about the challenged rules; DOL has been using
them since 2005 in making final determinations. Moreover, the
ongoing, direct harm to the livelihood of United States workers
attributable to use of the challenged regulations clearly
distinguishes this case from American Petroleum.
24
skill-level provisions of 20 C.F.R. § 655.10(f) and the 2009
Wage Guidance is affecting United States workers’ wages.
Rather than pay non-skill-level OES wages required by the IFR
and face an average 21% wage increase, more and more
employers seek to exploit the lingering loophole in DOL’s
administration of the H-2B program. See 78 Fed. Reg. at
24,053, 24,058-59.
In the 12 months prior to the District Court’s March 21,
2013 order and subsequent issuance of the IFR, applicants
submitted only 49 surveys employing a private wage survey
determination.9 However, with the vacatur of the skill-level
definition and DOL’s use of the mean OES survey wage as the
prevailing wage, employers have turned to employer surveys as
a way to continue paying depressed skill-level wages: 1,559
employer surveys were approved in the nine-month period
9
DOL publicly posts database summaries of prevailing wage
determinations on its website at
http://www.foreignlaborcert.doleta.gov/performancedata.cfm.
In the year prior to the issuance of the IFR (April 2012 to March
2013) seafood industry related jobs in SOC Codes 51‐ 3022
(Meat, Poultry, and Fish Cutters and Trimmers), 53‐7064
(Packers and Packagers, Hand), and 45‐3011 (Fishers and
Related Fishing Workers) constituted the only employer wage
surveys accepted by DOL apart from those submitted in five
cases for Ski/Snowboard Instructors under SOC Code 25‐3021
(Self‐Enrichment Education Teachers). Each of the seafood
industry occupational codes are classified by DOL as
occupations requiring little prior training or experience.
25
between July 1, 2013, and March 31, 2014 – an increase from
the prior period of more than 31 times (3,182%); 21.1% of those
prevailing wage determinations were certified at wages below
the OES Skill Level I wage (that is, at a wage less than the
average paid by the lowest paying third of employers in the OES
survey), and 94.4% offered wages below the OES Skill Level II
wage.10
DOL has found that these wage levels are causing wage
depression among domestic workers. 76 Fed. Reg. at 3463.
Perhaps the most vivid illustration of the detriment to workers
such as those represented by plaintiffs is the significant
expansion of the usage of employer wage surveys in the
landscaping industry, which did not submit any employer wage
surveys in the year prior to April 2013 despite being the industry
employing the most H-2B employees.11 In the nine-month
10
That DOL will continue to approve skill level prevailing
wages at these Skill Levels is apparent from the DOL quarterly
update to its Office of Foreign Labor Certification (OFLC)
Performance Data issued in mid-April. See:
http://www.foreignlaborcert.doleta.gov/performancedata.cfm;
http://www.foreignlaborcert.doleta.gov/docs/py2014q2/PWD_F
Y14_Q2.xlsx.
11
See DOL Office of Foreign Labor Certification, H-2B
Temporary Non-Agricultural Labor Certification Program -
Selected Statistics, FY 2013, reflecting that those landscaping
positions constituted 38% of the H-2B positions certified in
FY2013. Available at:
http://www.foreignlaborcert.doleta.gov/pdf/H2B_Selected_Stati
26
period from July 2013 to March 2014, 1,240 prevailing wage
determinations for landscape workers (SOC Code 37-3011)
were based on employer surveys, accounting for 42.7% of all
the prevailing wage determinations made for that occupation
during that period. DOL approved 97.7% of those surveys at
wage rates below the OES Skill Level II wage rate.12
We are convinced that we should not permit DOL to
continue to discharge its investigatory and rule-making
functions as it is doing now because its continued approval of
skill-level wages submitted based on employer wage surveys is
not only adversely affecting the wages of similarly employed
United States workers, but the H-2B program as now
administered is leading to unjustified disparities between
employers who submit private wage surveys and otherwise
similarly situated employers who do not submit surveys and
who therefore must pay the OES prevailing wage. An agency’s
promise regarding prospective rulemaking has no effect on the
ripeness of a challenge, like the one plaintiffs make here, when
the challenged rules are being used as the basis of final agency
actions. DOL’s proposed rulemaking, in the context of its
ongoing practices and the harm suffered by plaintiffs, does not
stics_FY_2013_YTD_Q4_final.pdf.
12
Of the 1,240 prevailing wage determinations issued for SOC
Code 37-3011 based on employer provided wage surveys in the
July 2013 to March 2014 time period, 1,212 cases resulted in
prevailing wage determinations below the depressed Skill Level
II wage rate and 174 of these cases (14%) involved
determinations at wage rates below the Skill Level I wage rate.
27
somehow render what otherwise would be a case ripe for
litigation unripe. Accordingly, we conclude that this matter is
ripe for adjudication, and we will review the validity of 20
C.F.R. § 655.10(f) and the 2009 Wage Guidance.
B. Section 655.10(f) Violates the Administrative
Procedure Act.
We have considered but rejected remanding this case to
the District Court so that it could decide the case on the merits.
Rather, in the interest of judicial economy and because we
recognize that workers in this country are being prejudiced by
the current administration of the H-2B program, we will reach
the merits of this controversy. In deciding to do so, we reiterate
that it is “generally appropriate” for a court of appeals to reach
the merits of an issue that a district court did not decide
provided, as is true here, “the factual record is developed and the
issues provide purely legal questions upon which an appellate
court exercises plenary review.” Hudson United, 142 F.3d at
159. “In such a case, an appellate tribunal can act just as a trial
court would, so nothing is lost by having the reviewing court
address the disputed issue in the first instance.” Id.; see also
N.J. Carpenters v. Tishman Constr. Corp., 760 F.3d 297, 305
(3d Cir. 2014) (deciding an issue under the Labor Management
Relations Act that the district court did not reach).
We find support for our decision to reach the merits of
the controversy in a recent court of appeals opinion dealing with
a challenge under the APA to DOL’s H-2A temporary labor
certification rules. Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir.
2014). There the court of appeals, after finding that the district
court improperly had dismissed the case for lack of standing and
28
thus lack of jurisdiction, concluded that “[a] remand to the
district court would be a waste of judicial resources” in light of
the fact that “the district court has no comparative advantage in
reviewing the agency action for compliance with notice and
comment requirements. An appeal from any district court
decision after remand is likely, and our review of the district
court’s decision would be de novo.” Id. at 1020. The long
litigation history of this matter shows that these considerations
apply with equal force here.
1. Section 655.10(f) Violates 5 U.S.C. §
706(2)(D).
In considering this case on the merits, we determine first
that Section 655.10(f) is procedurally invalid because DOL has
not explained why it has been allowing employers to use private
wage surveys in prevailing wage determinations when valid
OES wage rates are available for the same purpose. An agency
must show on the record that it has satisfied its obligation to
supply a reasoned analysis when it departs from past policy. 5
U.S.C. § 706(2)(D). Without such analysis, a reviewing court
may conclude that an agency has taken action without
complying with procedures required by law. Id. When making
a shift in policy, an agency “must examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice
made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83
S.Ct. 239, 242 (1962)). A reviewing court then “must consider
whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
29
judgment.” Id. (citations and internal quotation marks omitted).
A court will set aside an agency’s action as “arbitrary and
capricious” if the agency does not provide a “reasoned
explanation” for its change in course. Massachusetts v. EPA,
549 U.S. 497, 534-35, 127 S.Ct. 1438, 1463 (2007); Nat’l Cable
& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967,
981, 125 S.Ct. 2688, 2699-700 (2005) (“unexplained
inconsistency” in agency practice is a reason for holding a
policy reversal “arbitrary and capricious” under the APA, unless
“the agency adequately explains the reasons for a reversal of
policy”); see State Farm, 463 U.S. at 42–43, 103 S. Ct. at 2866-
67; see also CBS Corp. v. FCC., 663 F.3d 122, 145 (3d Cir.
2011).
The history of this matter shows that prior to 2005, DOL
would not consider employer wage surveys in prevailing wage
determinations when an applicable governmental wage survey
such as those of the DBA, SCA, or OES was available for that
purpose. DOL changed that policy with the 2005 Wage
Guidance, which authorized unlimited use of private surveys.
At that time, DOL did not offer any explanation for that change
in policy and it did not explain its policy change three years later
when it codified the 2005 Wage Guidance as the 2008 Wage
Rule, 20 C.F.R. § 655.10(b)(2) and (f) (2008). DOL’s failure to
offer an explanation in 2008 is unfortunate in light of public
comments on the 2008 rule questioning the use of employer
surveys where valid OES wage rates were available, especially
inasmuch as some of the comments presciently warned that
allowing private surveys in prevailing wage determinations
would invite employers to undermine the OES wage rate. 73
Fed. Reg. at 78,031. Both in 2005 and in 2008, DOL should
30
have provided a “rational connection between the facts found
and the choice made” with regards to these wage
determinations. La. Forestry, 745 F.3d at 679 (citing State Farm
Mut. Auto Ins., 463 U.S. at 43, 103 S.Ct. at 2866).
Finally, in 2011, DOL proposed adoption of a policy
limiting the use of private employer surveys to situations in
which a valid government survey was not available for the same
purpose. 76 Fed. Reg. at 3459, 3465-66. In doing so, DOL
publicly acknowledged that DBA, SCA, and OES surveys were
the most reliable bases for setting prevailing wages and that
“employer surveys are not, generally, consistently reliable.” Id.
at 3465. DOL also noted that “[e]mployers typically provide
private surveys when the result is to lower wages below the
prevailing rate . . . a result that is contrary to the Department’s
role in ensuring no adverse effect.” Id. Yet when appropriation
bill riders precluded the 2011 Rule from going into effect, DOL
reversed its course again and issued its IFR in April 2013,
allowing unlimited use of private surveys. The return to its
post-2005 policy seems unjustifiable in light of DOL’s findings
in the 2011 rulemaking, but, as in 2005 and 2008, DOL offered
no explanation for the change in its policy. DOL simply stated:
This interim final rule will permit the use of
employer-provided surveys in lieu of wages
derived from the other sources, in order for DOL
to provide the advice DHS has determined is
necessary for it to adjudicate H-2B petitions.
78 Fed. Reg. at 24,054. This “explanation” is hardly sufficient
for it merely explains what has been done, not why it was
31
done.13
We accordingly conclude that DOL has violated the APA
by its repeated failures to provide explanations for its policy
shifts. See 5 U.S.C. § 706(2)(D); La. Forestry, 745 F.3d at 679.
Though we are aware that DOL faced considerable difficulty
implementing the 2011 rule because of congressional
appropriations riders precluding the spending of funds for that
purpose, we nevertheless find DOL’s scant explanations
insufficient to comply with APA requirements.14
13
DOL attempts to support its argument on this point by citing
Gardner v. Grandolsky, 585 F.3d 786, 791 (3d Cir. 2009), but
that case does not support its position. Gardner holds that when
an “agency has articulated and acted on a consistent rationale
throughout the course of a lengthy informal rulemaking process,
the final rule is not arbitrary and capricious merely because the
rationale was not fully reiterated in the final agency action.” Id.
at 793 (citations omitted). As the history of the administration
of the H-2B program shows, DOL’s actions are the antithesis of
consistent. Its policy positions regarding private surveys have
oscillated without explanation from 2005 to 2011 to 2013 and
DOL has failed at every opportunity to “fully reiterate” its
rationale for policy shifts.
14
It is significant that no party challenges Congress’s undoubted
power to frustrate executive action by withholding
appropriations necessary to implement that action. We also note
that DOL has indicated that its decision to abandon the policies
and factual findings in the 2011 rulemaking is explained in later-
released Federal Register notices. However, the notices that
32
2. Section 655.10(f) Violates 5 U.S.C. §
706(2)(A) as Arbitrary.
We next conclude that in addition to being procedurally
flawed, Section 655.10(f) is substantively arbitrary, and, thus by
adopting it, DOL violated 5 U.S.C. § 706(2)(A). Under the
APA, a reviewing court may set aside agency action if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). An agency acts
arbitrarily and capriciously if it “has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.
Given DOL’s endorsement of the OES wages as “among
DOL references merely inform the public that the 2011 Wage
Rule is not in effect due to an appropriations rider. They do not
draw a connection between the appropriations rider and some
intentional attack on the private wage survey provisions in the
2011 Wage Rule – nor could they, as Congress itself offered no
explanation for the adoption of the rider. See Consolidated and
Further Continuing Appropriations Act, 2012, Pub. L. 112-55,
125 Stat. 552, Div. B, Title V § 546 (2011); Consolidated
Appropriations Act, 2012, Pub. L. 112-74, 125 Stat. 786, Div. F,
Title I § 110 (2011); Continuing Appropriations Resolution
2013, H.J. Res. 117, 112 Cong., 126 Stat. 1313 (2012);
Consolidated and Further Continuing Appropriations Act, 2013,
Pub. L. 113-6, 127 Stat 198, Div. F, Title 5 (2013).
33
the largest, most comprehensive, and continuous statistical
survey programs of the Federal Government,” 78 Fed. Reg. at
24,053; 76 Fed. Reg. at 3463; 69 Fed. Reg. 77,326, 77,369 (Dec.
27, 2004), and its finding that the OES survey “is the most
consistent, efficient, and accurate means of determining the
prevailing wage rate for the H-2B program,” 76 Fed. Reg. at
3465; see also id. (DOL stating that “employers typically
provide private surveys when the result is to lower wages below
the prevailing wage rate”), we are satisfied that DOL acted
arbitrarily and capriciously when it permitted—and by its
policies, structurally encouraged—employers to rely on details
of a private survey when there was a valid OES wage survey
available for use in determining the prevailing wage for the
implicated employment. After all, DOL publicly has pointed
out that employer surveys are generally unrealistic. See 76 Fed.
Reg. at 3465 (DOL stating that “employers typically provide
private surveys when the result is to lower wages below the
prevailing wage rate”). Nonetheless, 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. As the District Court noted, “both sides
acknowledge that employers pay for expensive private surveys
aiming to obtain a wage rate that is lower than the available
OES survey wage rate.” CATA III, 2014 WL 4100708, at *5.
As a further illustration of the arbitrary nature of Section
655.10(f), we emphasize that this authorization creates a system
that permits employers who can afford private surveys to bring
H-2B workers into the country for employment at lower wages
than employers who cannot afford such surveys and who
34
therefore must offer the higher OES prevailing wage. DOL’s
statistics for the Philadelphia metropolitan area demonstrate that
this disparity can be considerable. From July 2013 to April
2014, DOL approved 115 prevailing wage applications for
landscape workers in the Philadelphia metropolitan area. These
approved applications included 32 based on the OES survey,
which required a minimum payment of $14.04 per hour, and 83
based on employer surveys, which were approved at wage rates
ranging from $9.16 to $11.22 per hour—a difference amounting
to as much as $200 for a 40-hour workweek. This kind of
disparity that harms workers whether foreign or domestic, is
readily avoidable, and completely unjustified. After years of
litigation, DOL cannot offer any rational justification for this
policy as it leads to similarly situated workers in the same
market in the same season bringing home widely disparate
paychecks. See Nazareth Hosp. v. Sec’y of HHS, 747 F.3d 172,
179 (3d Cir. 2014) (“Agency action is arbitrary and capricious if
the agency offers insufficient reasons for treating similar
situations differently.”).
Failure to consider relevant factors or provide an
adequate explanation for an agency action are indeed among the
“wide range of reasons why agency action may be judicially
branded as ‘arbitrary and capricious.’” FEC v. Rose, 806 F.2d
1081, 1088 (D. C. Cir. 1986). DOL has not attempted to
demonstrate that it has considered the relevant factors brought to
its attention by interested parties during the course of the
rulemaking, or that it had made a “reasoned choice among the
various alternatives presented.” Nat’l Indus. Sand Ass’n v.
Marshall, 601 F.2d 689, 700 (3d Cir. 1979). We conclude that
20 C.F.R. § 655.10(f) is arbitrary and capricious and was
35
adopted in violation of 5 U.S.C. § 706(2)(A).
C. The 2009 Wage Guidance Violates the
Administrative Procedure Act.
DOL has acted contrary to law 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 CATA I, which rejects skill-level considerations.
Agency rules that are inconsistent with or in violation of an
agency’s own regulations are unlawful. 5 U.S.C. § 706(2)(A) &
(C); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114
S.Ct. 2381, 2386 (1994). DOL admits as much as it “agrees
that employer-provided surveys likely should not be based on
the collection of wages at skill levels.” See 76 Fed. Reg. at
3466-67. Despite this candid acknowledgement, DOL requests
that we allow the 2009 Wage Guidance to remain enforceable
until DOL completes its proposed rulemaking. But we see no
reason to allow DOL to continue to use a wage guidance that
contradicts its own rules.
It is particularly troublesome that use of the 2009 Wage
Guidance violates 5 U.S.C. § 706(2)(A) and (C) in that the
undercutting of the OES wage rate is impairing DOL’s carrying
out of Congress’s statutory charge. Congress has charged DOL
with the duty to ensure that it grants certifications only if they
do not adversely affect wages and working conditions of United
States workers, and it is the burden of DOL to be mindful of and
honor that charge. However, employers increasingly have been
submitting private surveys authorized by Section 655.10(f) in
order to obtain a wage rate that is lower than the OES wage rate
36
indicates would be appropriate—the wage rate DOL itself has
determined is necessary to avoid an adverse effect on foreign
and domestic employee’s wages. The 2009 Wage Guidance
therefore establishes criteria contrary to both the letter and spirit
of 5 U.S.C. § 706(2)(A) and (C), and DOL’s use of it in the
consideration of labor certification applications is unlawful.
D. Vacatur is the Appropriate Remedy.
Finally we come to the remedy. Section 706(2) of the
APA provides that a reviewing court shall “hold unlawful and
set aside agency action” that violates the APA. 5 U.S.C. §
706(2). Ordinarily, reviewing courts have applied that provision
by vacating invalid agency action and remanding the matter to
the agency for further review. See, e.g., Abington Mem. Hosp.
v. Heckler, 750 F.2d 242, 244 (3d Cir. 1984). Here it is
particularly appropriate to remand the case with a vacatur
because if we did not do so, we would leave in place a rule that
is causing the very adverse effect that DOL is charged with
preventing, and we would be “legally sanction[ing] an agency's
disregard of its statutory or regulatory mandate.” CATA II, 933
F. Supp. 2d at 714. DOL’s explanations during oral argument
made clear that it has no expectation of expeditious
administrative review or rehabilitation of either the 2009 Wage
Guidance or its broad employer survey rule, 20 C.F.R. §
655.10(f), despite DOL’s recorded admission that Section
655.10(f)’s broad authorization of employer surveys “is contrary
to the Department’s role in ensuring no adverse impact.” 76
Fed. Reg. at 3465.
We therefore act now to grant plaintiffs’ vacatur request
of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. We hold
37
both provisions to be arbitrary and capricious and in violation of
the APA. 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 653.15
VI. CONCLUSION
15
On January 17, 2014, the Consolidated Appropriations Act,
2014, Public Law 113–76, 128 Stat. 5, was enacted. Unlike past
appropriations, that Act did not include a rider banning
appropriations to implement, administer, and enforce the 2011
Wage Rule: For the first time in over two years, DOL's
appropriations did not prohibit the implementation or
enforcement of the 2011 Wage Rule. Wage Methodology for
the Temporary Non–Agricultural Employment H–2B Program,
79 Fed. Reg. at 14,453; see also 76 Fed. Reg. at 3452. The
parties agree that the 2011 Wage Rule now is funded fully.
38
For the aforesaid reasons, we will reverse the District
Court’s order dismissing this case on the ground that it is not
ripe for review and hold that 20 C.F.R. § 655.10(f) and the 2009
Wage Guidance are arbitrary and capricious and adopted in
violation of the APA. We grant plaintiffs’ vacatur request of 20
C.F.R. § 655.10(f) and the 2009 Wage Guidance as we hold
both regulations to be arbitrary and capricious and in violation
of the APA. We will remand this case to the District Court for
any further proceedings that may be necessary.
39