Mendoza v. Solis

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REYMUNDO Z. MENDOZA, et al.,
Plaintiffs,
Civil Action No. 11-1790 (BAH)
v.
Judge Beryl A. Howell
HILDA SOLIS,
United States Secretary of Labor, et al.,
Defendants,
v.
WESTERN RANGE ASSOCIATION, et al.,
Intervenor-Defendants.
MEMORANDUM OPINION
The plaintiffs, who are four former open-range agricultural workers, bring this action
against the defendants United States Secretary of Labor and United States Department of Labor
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500, et seq., seeking vacatur
of two guidance letters that were promulgated without notice-and-comment rulemaking. The
plaintiffs claim that the two guidance letters qualify as “rules” and therefore were subject to the
notice-and-comment requirements of the APA. Two agricultural associations, Western Range
Association and Mountain Plains Agricultural Services, have intervened as defendants and have
moved to dismiss this action for lack of subject-matter jurisdiction. Additionally, the plaintiffs,
the defendants, and the intervenor-defendants have each moved for summary judgment on the
merits of the plaintiffs’ administrative procedure claim.
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I. BACKGROUND
A. Statutory and Regulatory Framework
Under the Immigration and Nationality Act (“INA”), as amended by the Immigration
Reform and Control Act of 1986 (“IRCA”), foreign workers may be hired to perform temporary
agricultural work in the United States through the H-2A visa program. See 8 U.S.C.
§ 1101(a)(15)(H)(ii)(a). The H-2A program grants temporary work visas to any nonimmigrant
alien who “ha[s] a residence in a foreign country which he has no intention of abandoning who is
coming temporarily to the United States to perform agricultural labor or services.” Id. Any
employer petitioning to import an H-2A worker must first obtain certification to do so from the
Secretary of Labor. See 8 U.S.C. § 1188(a). The criteria for certification are, inter alia, that
(1) “there are not sufficient workers who are able, willing, and qualified, and who will be
available at the time and place needed, to perform the labor or services involved in the petition,”
and (2) “the employment of the alien in such labor or services will not adversely affect the wages
and working conditions of workers in the United States similarly employed.” Id. § 1188(a)(1).
To qualify for certification, a prospective H-2A employer must agree to a number of obligations,
including, inter alia: (1) keeping any job opportunity open to any qualified U.S. worker on a
non-discriminatory basis; (2) providing employment to any qualified U.S. worker who applies
until fifty percent of the period of the job opportunity’s work contract has elapsed; (3) actively
recruiting qualified U.S. workers within a multistate region for any job opportunity; and
(4) complying with all applicable federal, state, and local laws and regulations, including health
and safety laws and the Fair Labor Standards Act (“FLSA”), where applicable. See 20 C.F.R.
§ 655.135. 1
1
The FLSA specifically provides an exemption from its minimum wage and maximum hour requirements for, inter
alia, “any employee employed in agriculture . . . if such employee is principally engaged in the range production of
2
In order to ensure that the importation of H-2A workers does not “adversely affect the
wages . . . of workers in the United States similarly employed,” 8 U.S.C. § 1188(a)(1),
Department of Labor regulations require H-2A employers to pay their hourly workers what is
known as an “adverse effect wage rate” or “AEWR.” See 20 C.F.R. § 655.122(l); see also id.§ 655.120(a) (generally requiring H-2A employers to “pay a wage that is the highest of the
AEWR, the prevailing hourly wage or piece rate, the agreed-upon collective bargaining wage, or
the Federal or State minimum wage”). The AEWR is “[t]he annual weighted average hourly
wage for field and livestock workers (combined) in the States or regions as published annually
by the U.S. Department of Agriculture (USDA) based on its quarterly wage survey.” Id.
§ 655.103(b). The AEWR is designed to “insure against a lowering of wages” that might
otherwise result from the importation of foreign labor. See, e.g., Williams v. Usery, 531 F.2d
305, 307 (5th Cir. 1976); see also Rowland v. Marshall, 650 F.2d 28, 29 (4th Cir. 1981) (per
curiam) (“The purpose of the AEWR is to prevent the importation of nonimmigrant aliens from
deflating the wages and from adversely affecting the working conditions of the United States
workers similarly employed.” (citing 20 C.F.R. § 655.0(e))). Additionally, H-2A employers are
required to pay workers “at least twice monthly or according to the prevailing practice in the area
of intended employment, whichever is more frequent.” 20 C.F.R. § 655.122(m).
With respect to working conditions, Department of Labor regulations require that H-2A
employers provide a minimum level of benefits and working conditions, including housing,
workers’ compensation insurance, meals, supplies, and transportation. See 20 C.F.R.
livestock.” 29 U.S.C. § 213(a)(6)(E). This would include any employee who “spends more than 50 percent of his
time during the year on the range,” engaged in the “production of livestock,” which would include sheepherding,
goatherding, and other occupations involving the open-range production of livestock. See 29 C.F.R. §§ 780.325–29.
The primary purpose of this exemption appears to be that when an employee works in such an occupation, his work
duties “necessitate[] his constant attendance on the range, on a standby basis, for such periods of time so as to make
the computation of hours worked extremely difficult.” Id. § 780.329.
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§ 655.122(c). The minimum working conditions include the employer’s obligation to provide
housing at no cost to their H-2A workers, and the employer-provided housing must generally
meet the standards set forth by the Occupational Safety and Health Administration (“OSHA”).
See id. § 655.122(d)(1). All H-2A employers are also generally required to request an inspection
of the housing they provide, and the inspection must be completed prior to issuance of any H-2A
certification. See Temporary Agricultural Employment of H-2A Aliens in the United States
(“2010 H-2A Rule”), 75 Fed. Reg. 6884, 6908 (Feb. 12, 2010).
The Department of Labor has, for many years, permitted exceptions to these generally
applicable procedures “to recognize unique circumstances and characteristics for some
agricultural employer/worker situations,” such as sheepherding and occupations involving the
open-range production of livestock. See 52 Fed. Reg. 20,496, 20,497 (June 1, 1987) (codified as
amended at 20 C.F.R. pts. 654–55). These “special procedures,” as they were first promulgated
through the 1987 rulemaking, permitted the Director of the U.S. Employment Service (the
“Director) to “establish monthly, weekly, or bi-weekly [AEWRs] for” occupations
“characterized by other than a reasonably regular workday or workweek,” such as the range
production of sheep or other livestock, though the Director was still required to establish these
special AEWRs “consistent with the methodology” used for the standard AEWR, i.e., “the
annual weighted average hourly wage rate for field and livestock workers (combined) for the
region . . . based on the USDA quarterly wage survey.” See id. at 20,508–09, 20,521. The 1987
rule also generally authorized the Director “to establish special procedures for processing H-2A
applications when employers can demonstrate upon written application to and consultation with
the Director that special procedures are necessary.” Id. at 20,508. Finally, the 1987 rule
required that housing for “workers principally engaged in the range production of livestock”
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must meet OSHA housing standards or, “[i]n the absence of such standards,” open-range housing
was required to “meet guidelines issued by [the Employment Training Administration, or
‘ETA’].” Id. at 20,513.
Pursuant to the authority delegated in the 1987 rulemaking, the Department of Labor
published Field Memorandum 74-89 in May 1989, which set forth a number of “special
procedures governing the labor certification process for temporary alien sheepherders.” 2 Fed.
Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Summ. J. Mem.”) Ex. A at 1, ECF No. 28-2.
The special procedures contained in Field Memorandum 74-89, inter alia, (1) permitted
employers to describe the anticipated hours of open-range herding positions as “on call for up to
24 hours per day, 7 days per week,” and exempted employers from recording and reporting hours
offered and worked, id. at 7; (2) permitted employers to offer open-range herders, at minimum,
“the prevailing wage rate for the occupation in the State as determined by the [State Employment
Service Agency, or ‘SESA’] prevailing wage survey . . . or a special monthly [AEWR]
established by the National Office,” id. at 9; and (3) established standards for mobile housing
used by H-2A open-range herders, id. at 20–24. The mobile housing standards issued in the
1989 special procedures, unlike the generally applicable procedures, did not specifically require
that open-range mobile housing have a running cold-water tap, electricity, or modern toilet
facilities. Compare 20 C.F.R. §§ 654.404–17 (housing standards generally applicable to H-2A
housing), with Defs’ Mem. Ex. A at 20–24 (special mobile housing standards). The special
procedures were updated in 2001 and 2007, but have remained substantially and continuously in
place. See Defs.’ Summ. J. Mem. Ex. B, ECF No. 28-3 (Field Memorandum 24-01, published
2
Despite the language referring only to “sheepherders,” the special procedures contained in Field Memorandum 74-
89 “apply as well to goatherders attending goats grazing on the range, and except as otherwise provided, references
to sheep apply to goats as well.” Defs.’ Summ. J. Mem. Ex. A at 6 n.1.
5
August 2001); id. Ex. C, ECF No. 28-4 (Training and Employment Guidance Letter No. 15-06,
published February 2007).
The Department of Labor’s H-2A regulations were most recently amended pursuant to a
final rule that was promulgated through notice-and-comment procedures on February 12, 2010.
See 2010 H-2A Rule, 75 Fed. Reg. 6884. The 2010 H-2A regulations reaffirmed the authority of
the Department of Labor (in particular, the Office of Foreign Labor Certification (“OFLC”)) to
“establish, continue, revise, or revoke special procedures” for processing H-2A applications for
sheepherders and “occupations in the range production of other livestock.” See id. at 6959–60.
On August 4, 2011, pursuant to the authority provided in the 2010 rulemaking, the DOL
published in the Federal Register two Training and Employment Guidance Letters (“TEGLs”)—
one that applies to H-2A applications for “sheepherding and/or goatherding activities,” and one
that applies more generally to “the open range production of livestock in the United States.” See
Training & Employment Guidance (TEGL) Letter No. 15-06, Change 1, Special Procedures:
Labor Certification Process for Occupations Involved in the Open Range Production of
Livestock under the H-2A Program (the “Open Range TEGL”), 76 Fed. Reg. 47,243 (Aug. 4,
2011); Training & Employment Guidance (TEGL) Letter No. 32-10: Special Procedures: Labor
Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations
Under the H-2A Program (the “Herding TEGL”), 76 Fed. Reg. 47,256 (Aug. 4, 2011). The
Federal Register notices described the TEGLs as “guidance,” see Open Range TEGL, 76 Fed.
Reg. at 47,244; Herding TEGL, 76 Fed. Reg. at 47,257, and the plaintiffs and the government
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defendants agree that the TEGLs were promulgated without notice-and-comment procedures, see
Compl. ¶ 18, ECF No. 1; Answer ¶ 18, ECF No. 10. 3
The special procedures contained in the 2011 Open Range TEGL do not differ in any
material respect from their prior 2007 iteration. They substantially continue the special
procedures regarding hours, wages, and mobile housing standards discussed above. Compare
Open Range TEGL, 76 Fed. Reg. at 47,244–47, with Defs.’ Summ. J. Mem. Ex. C at 3–6. The
special procedures contained in the 2011 Herding TEGL, however, differ somewhat from their
prior 2001 iteration regarding wages that employers are required to pay H-2A herders.
Specifically, the 2001 iteration (Field Memorandum 24-01) specified that employers seeking H-
2A certification for herders were required to offer workers the highest of: (1) “the prevailing
wage rate for the occupation in the State as determined by the SESA prevailing wage survey and
verified by the National Office,” (2) “a special monthly [AEWR] established by the National
Office,” or (3) “the legal federal or state minimum wage rate.” See Defs.’ Summ. J. Mem. Ex. B
at 7. The 2011 Herding TEGL, however, provides that H-2A employers are only required to
offer herders “the monthly, weekly, or semi-monthly prevailing wage established by the OFLC
Administrator for each State listed in an approved itinerary.” Herding TEGL, 76 Fed. Reg. at
47,258. 4 This prevailing wage rate is calculated from the “findings from prevailing wage
surveys conducted by [State Workforce Agencies, or ‘SWAs’] . . . consistent with the wage
setting procedures historically applied to sheepherder occupations in the Western States.” Id. 5
3
The intervenor-defendants “deny that notice and comment were not conducted with respect to the use of ‘special
procedures,’” Intervenor’s Answer ¶ 18, ECF No. 17, though it is unclear whether the intervenor-defendants contest
the fact that the 2011 TEGLs themselves were promulgated without notice-and-comment procedures.
4
The Herding TEGL also states that “[a]s a condition of receiving an H-2A labor certification, an employer must
comply with all applicable Federal, State, and local employment-related laws and regulations, including the
mandatory State minimum wage rates for the occupation.” Herding TEGL, 76 Fed. Reg. at 47,258.
5
SWAs are “[s]tate government agenc[ies] that receive funds pursuant to the Wagner-Peyser Act (29 U.S.C. [§] 49
et seq.) to administer the State’s public labor exchange activities.” 20 C.F.R. § 655.103(b).
7
Both the 2001 and the 2011 special procedures for herders, however, require that any prevailing
wage survey be conducted in accordance with ETA Handbook No. 385, which has been in place
since 1981. See id.; Defs.’ Summ. J. Mem. Ex. B at 8; see also Defs.’ Summ. J. Mem. Ex. D,
ECF No. 28-5 (ETA Handbook No. 385). ETA Handbook No. 385 instructs state agencies to
survey only “domestic seasonal workers” in a given activity to calculate a prevailing wage. See
Defs.’ Summ. J. Mem. Ex. D at 5.
B. Factual and Procedural Background
The plaintiffs in this action are “four workers with experience in sheepherding or in the
open range production of livestock.” Pls.’ Mem. in Opp’n to Def.-Intervenor’s Mot. to Dismiss
(“Pls.’ Opp’n”) at 3, ECF No. 26. The plaintiffs all originally came to the United States as guest
workers under the H-2A visa program, though none of them currently participates in the H-2A
program. See id.; see also Decl. of Reymundo Zacarias Mendoza (“Mendoza Decl.”) ¶¶ 4–5,
ECF No. 26-1; Decl. of Francisco Javier Castro (“Castro Decl.”) ¶¶ 3–4, ECF No. 26-2; Decl. of
Alfredo Conovilca Matamoros (“Matamoros Decl.”) ¶¶ 3–4, 8, ECF No. 26-3; Decl. of Sergio
Velásquez Catalán (“Catalán Decl.”) ¶¶ 3–4, ECF No. 26-4. All four plaintiffs aver that they
reside lawfully in the United States and are permitted to work in the United States. See Mendoza
Decl. ¶ 8; Castro Decl. ¶ 6; Matamoros Decl. ¶ 6; Catalán Decl. ¶ 7. 6 The plaintiffs also claim
that they are able, willing, qualified, and available to work in the open-range production of
livestock in the United States, though none of them currently works in that field because they say
that the importation of foreign labor has depressed wages for open-range herders, which has
6
Plaintiff Castro does not specifically aver that he is permitted to work in the United States, but he does aver that he
is a lawful permanent resident, see Castro Decl. ¶ 6, and lawful permanent residents “have the right, without
limitation, to work in the United States,” Kim v. Ziglar, 276 F.3d 523, 528 (9th Cir. 2002), reversed on other
grounds by 538 U.S. 510 (2003).
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prevented them from reentering their preferred line of work. See Mendoza Decl. ¶¶ 9–12; Castro
Decl. ¶¶ 7, 9–10; Matamoros Decl. ¶¶ 7–12; Catalán Decl. ¶¶ 8–11.
The plaintiffs filed their complaint in the instant action on October 7, 2011, stating one
cause of action that challenges the validity of the 2011 TEGLs under the APA. See Compl.
¶¶ 20–21. As a result of the procedural deficiencies alleged, the plaintiffs seek (1) a declaratory
judgment that the defendants violated the APA by failing to subject the 2011 TEGLs to notice-
and-comment procedures; and (2) an order vacating the special procedures contained in the 2011
TEGLs and “enjoining the defendants from using any special procedures for H-2A certification
of sheepherder, goatherder, and open range production of livestock jobs unless and until such
procedures have been adopted through notice-and-comment rulemaking.” Id. at 7.
On December 14, 2011, the Western Range Association and the Mountain Plains
Agricultural Service (collectively the “intervenor-defendants”) filed a motion to intervene as
defendants in this action on the grounds that “together [they] represent almost all of the
employers affected by the action that Plaintiffs are challenging, their interests are directly at
stake, neither party can be counted upon to protect those interests, and the disposition of this
action in their absence would likely impair or impede their interests.” Joint Mot. to Intervene at
1, ECF No. 15. The intervenor-defendants “are associations whose membership consists of
agricultural employers involved in the open range production of sheep and livestock which hire
foreign herders under the H-2A program.” Mem. of P. & A. in Supp. of Joint Mot. to Intervene
at 1, ECF No. 15-3. Approximately two weeks after the motion to intervene was filed, on
December 27, 2011, the parties stipulated to the requested intervention. See Joint Stipulation on
Intervention & Proposed Scheduling Order at 2, ECF No. 16. On January 4, 2012, the Court
granted the motion to intervene. See Minute Order dated Jan. 4, 2012. Currently pending before
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the Court are the intervenor-defendants’ motion to dismiss for lack of subject-matter jurisdiction,
and three cross-motions for summary judgment filed by the plaintiffs, the government
defendants, and the intervenor-defendants, respectively. For the reasons discussed below, the
Court concludes that the plaintiffs do not have standing, and therefore the Court grants the
intervenor-defendants’ motion to dismiss.
II. LEGAL STANDARD
When faced with a motion to dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1), a court has “an affirmative obligation to consider whether the constitutional and
statutory authority exist” for it to hear the case. James Madison Ltd. v. Ludwig, 82 F.3d 1085,
1092 (D.C. Cir. 1996) (internal quotation marks omitted). For this reason, “the [p]laintiff's
factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion
than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (internal quotation marks
omitted). When the purported lack of jurisdiction stems from a lack of standing, however, the
court “must assume that [the plaintiff] states a valid legal claim.” Info. Handling Servs., Inc. v.
Def. Automated Printing Servs., 338 F.3d 1024, 1029 (D.C. Cir. 2003). The proponent of
jurisdiction bears the burden of proving that it exists, Khadr v. United States, 529 F.3d 1112,
1115 (D.C. Cir. 2008), and while “the district court may consider materials outside the
pleadings,” it must “still accept all of the factual allegations in the complaint as true.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citations and internal
quotation marks omitted).
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III. DISCUSSION
Article III of the United States Constitution limits the federal judicial power to the
resolution of “Cases” and “Controversies.” U.S. CONST. art. III § 2. “In limiting the judicial
power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional
role of Anglo-American courts, which is to redress or prevent actual or imminently threatened
injury to persons caused by private or official violation of law.” Summers v. Earth Island Inst.,
555 U.S. 488, 492 (2009). In other words, “[t]he case-or controversy doctrines state fundamental
limits on federal judicial power in our system of government.” Allen v. Wright, 468 U.S. 737,
750 (1984). “The Art[icle] III doctrine that requires a litigant to have ‘standing’ to invoke the
power of a federal court is perhaps the most important of these doctrines.” Id.As the Supreme Court has explained, “the irreducible constitutional minimum of standing
contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the
plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a
causal connection between the injury and the conduct complained of,” i.e., the injury alleged
must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be likely
that the injury will be redressed by a favorable decision. Id. at 561. Moreover, when a plaintiff
seeks prospective declaratory or injunctive relief, allegations of past harms are insufficient. See,
e.g., Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Rather, when declaratory or
injunctive relief is sought, a plaintiff “must show he is suffering an ongoing injury or faces an
immediate threat of [future] injury.” Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983)).
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Additionally, a plaintiff may assert the violation of a procedural right as the basis for
standing, but only “so long as the procedures in question are designed to protect some concrete
interest of his that is the ultimate basis of his standing.” Lujan, 504 U.S. at 573 n.8.
“[D]eprivation of a procedural right without some concrete interest that is affected by the
deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”
Summers, 555 U.S. at 496. “[I]n order to show that the interest asserted is more than a mere
general interest in the alleged procedural violation common to all members of the public,” the
plaintiff “must show that the government act performed without the procedure in question will
cause a distinct risk to a particularized interest of the plaintiff.” Fla. Audubon Soc’y v. Bentsen,
94 F.3d 658, 664 (D.C. Cir. 1996).
A. The Plaintiffs Have Not Established an Injury-in-Fact.
In arguing that the plaintiffs lack standing to bring the instant action, the intervenor-
defendants first contend that the plaintiffs have failed to allege a violation of a substantive,
legally protected interest. See Mem. in Supp. of Intervenors’ Mot. to Dismiss (“Intervenors’
Mem.”) at 9–11, ECF No. 18. The intervenor-defendants characterize the plaintiffs’ putative
legally protected interest as “a right to attractive wages and working conditions,” which they
argue “is not protected by law” and thus cannot be the basis for standing. See id. at 9, 11. The
plaintiffs, however, characterize their legally protected interests as “not having their employment
opportunities, wages, and working conditions adversely affected by the employment of H-2A
workers,” and “a right to compete for herder jobs at non-depressed wages.” Pls.’ Opp’n at 8.
The intervenor-defendants further argue that, even assuming that the plaintiffs rely upon
a legally protected interest, the plaintiffs have not established a concrete or particularized injury
to that interest. See Intervenors’ Mem. at 11–14. Specifically, the intervenor-defendants
contend that “although the plaintiffs have past experience with the field subject to the contested
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agency action, they have not identified a single employer, or even region, where they intend to
seek work where wages or conditions have been adversely affected by the contested procedures.”
Id. at 13. They also argue that “there is not one factual allegation in the complaint connecting
the alleged procedural defect (the Special Procedures) to the alleged substantive injury (the
plaintiffs’ failure to work in the Industry).” Id. at 14. The plaintiffs respond that their injury is
concrete and particularized because of “their experience working as herders and their desire to
return to herding on the open range.” Pls.’ Opp’n at 10. The plaintiffs claim in their brief that,
although they have “actively sought work,” in open-range herding, they “have not encountered
any employer willing to offer employment on terms superior to those required by the challenged
TEGLs.” Id. at 10–11.
The plaintiffs have articulated what would, in theory, be a sufficient injury in fact, but
they have failed to establish that they have been personally injured in the way they describe.
See, e.g., Allen, 468 U.S. at 751 (holding that standing requires a “personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief”
(emphasis added)). It is well-established that “economic actors ‘suffer an injury in fact when
agencies lift regulatory restrictions on their competitors or otherwise allow increased
competition’ against them.” Sherley v. Sebelius, 610 F.3d 69, 72 (D.C. Cir. 2010) (quoting La.
Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998)); accord Ass’n of Data
Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152 (1970) (holding that competitors suffered
injury-in-fact where increased competition “might entail some future loss of profits”); see also
Shays v. FEC, 414 F.3d 76, 86 (D.C. Cir. 2005) (acknowledging that “accounting for additional
rivals constitutes injury in fact”); United Transp. Union v. Interstate Commerce Comm’n, 891
F.2d 908, 912 n.7 (D.C. Cir. 1989) (observing that the allegation that “paying subminimum
13
wages to homeworkers will injure factory employees” was “not just plausible” but was “an
application of basic economic logic”). Competitor standing, however, requires that a competitor
is “likely to suffer financial injury” as a result of the challenged action. See Mobile Relay
Assocs. v. FCC, 457 F.3d 1, 13 (D.C. Cir. 2006). The D.C. Circuit has made clear that
“[c]laiming that regulatory action creates a ‘skewed playing field,’ . . . is not enough” because
that claim is merely “a ‘bare assertion’ of competition,” which is insufficient to establish Article
III injury-in-fact. Id. at 13–14; accord KERM, Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir. 2004) (“A
party seeking to establish standing on [the] basis [of competitor standing] must demonstrate that
it is ‘a direct and current competitor whose bottom line may be adversely affected by the
challenged government action.’” (quoting New World Radio, Inc. v. FCC, 294 F.3d 164, 170
(D.C. Cir. 2002))).
In light of this authority, the plaintiffs’ allegations of injury-in-fact in the instant action
fall short for two reasons. First and most importantly, the plaintiffs have not established that
they are in fact competing in the relevant marketplace under the challenged regulatory scheme,
i.e., the labor market for open-range herders, as regulated by the 2011 TEGLs. Although the
plaintiffs’ brief states that the plaintiffs have “actively sought” work as open-range herders, Pls.’
Opp’n at 11, this naked assertion is contradicted by the allegations in the Complaint as well as
the plaintiffs’ sworn declarations. The Complaint merely states that the plaintiffs “would
actively seek such jobs,” if such jobs paid more and had better working conditions. See Compl.
¶¶ 5–8 (emphasis added). Furthermore, the plaintiffs’ sworn declarations establish that, not only
did all of the plaintiffs leave the open-range herding industry well before the 2011 TEGLs were
promulgated, but also none of the plaintiffs have actively sought work in the open-range herding
industry since the promulgation of the 2011 TEGLs. The plaintiff who comes closest to alleging
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an injury-in-fact is Mr. Mendoza, who avers that he was fired from his last open-range herding
job in September 2010. Mendoza Decl. ¶¶ 5–6. Although Mendoza says that he “h[as] sought
work as a herder” since that time, he has not done so “since leaving Henefer, Utah” in May 2011.
Id. ¶¶ 6, 11, 13. The 2011 TEGLs did not even become effective, however, until October 1,
2011—several months after Mr. Mendoza stopped actively seeking work in the open-range
herding industry. See Open Range TEGL, 76 Fed. Reg. at 47,244; Herding TEGL, 76 Fed. Reg.
at 47,257. Plaintiff Castro left his last job as a sheepherder in March 2010, and his only
reference to potentially reentering the open-range herding labor market was when he “f[ou]nd
out about another job as a sheepherder in Washington” but “did not pursue [it]” because he
“found out that the conditions were the same as the ranch [he] left.” Castro Decl. ¶¶ 4, 8.
Plaintiff Matamoros avers that he left his last open-range herding job in August 2009, and
although he states vaguely that he “want[s] to work as a sheepherder again” and “h[as]
considered working as a sheepherder again,” he has not actually endeavored to reenter the job
market for sheepherders because he “h[as] never heard anybody talk about a herding job that has
acceptable pay and working conditions.” Matamoros Decl. ¶¶ 4, 7–8. Mr. Matamoros states that
he “talk[s] to friends and acquaintances regularly about job opportunities” and “h[as] not found
an employer willing to pay [higher] wages or provide [better] working conditions,” but he does
not state that he has actively sought employment in any such positions since the 2011 TEGLs
were promulgated. See id. ¶¶ 8–9. This is insufficient to establish competitor standing, which
requires that a plaintiff be a “direct and current competitor,” not a hypothetical or conditional
competitor. See KERM, 353 F.3d at 60. Finally, plaintiff Catalán states that he has not worked
as an open-range herder since leaving his last position in June 2005, and he says nothing about
whether he has tried to compete for open-herding jobs since October 2011. See Catalán Decl.
15
¶ 4. Mr. Catalán merely states that he “would take an open range herding job” if it paid at least
$12.50 per hour and the housing had hot water, electricity, and a bathroom. See id. ¶ 9.
In short, the plaintiffs’ sworn affidavits confirm that none of them has been a competitor
in the open-range herding industry since May 2011. Thus, the plaintiffs have failed to establish
that they have suffered “a personal injury fairly traceable to the defendant’s allegedly unlawful
conduct.” Allen, 468 U.S. at 751. At most, the plaintiffs state that they would compete for open-
range herding positions if the positions offered better wages and working conditions. See
Mendoza Decl. ¶ 11; Castro Decl. ¶ 9; Matamoros Decl. ¶ 9; Catalán Decl. ¶ 9. Yet, these sorts
of “‘some day’ intentions—without any description of concrete plans, or indeed even any
specification of when the some day will be—do not support a finding of the ‘actual or imminent’
injury that [the Supreme Court’s] cases require.” Lujan, 504 U.S. at 564; see also Snake River
Farmers’ Ass’n, Inc., 9 F.3d 792, 796–98 (9th Cir. 1993) (holding that speculative possibility of
future employment in agricultural positions was insufficient to establish standing to challenge
wage rates determinations under the INA). 7
The second reason why the plaintiffs have failed to establish an injury-in-fact, under their
theory of competitor standing, is that the plaintiffs have neither alleged nor shown that they are
“likely to suffer financial injury” as a result of the 2011 TEGLs. See Mobile Relay, 457 F.3d at
13. Although this issue is also relevant to the traceability of the plaintiffs’ purported injury, the
presence of a financial injury that is actual or imminent is a prerequisite to establishing an injury-
in-fact under a theory of competitor standing. See id.; see also KERM, 353 F.3d at 60–61. But
7
More generally, the plaintiffs’ reasons for leaving and not reentering the open-range herding industry appears to be
only partially based on the wages and housing conditions approved of by the 2011 TEGLs. The plaintiffs left their
former jobs as herders at least in part because they were mistreated, e.g., not provided with sufficient food, having
their travel documents and wages withheld, and being threatened with deportation. See Mendoza Decl. ¶ 5; Castro
Decl. ¶ 4; Matamoros Decl. ¶ 4; Catalán Decl. ¶ 4. The 2011 TEGLs do not address any of these issues, and the
generally applicable H-2A regulations (and other labor-related statutes and regulations) prohibit such mistreatment.
See, e.g., 20 C.F.R. § 655.122 (requiring employers to provide meals); 20 C.F.R. § 655.135 (prohibiting employers
from, inter alia, confiscating travel documents).
16
cf. Shays, 414 F.3d at 86–90 (analogizing business competitors with electoral competitors and
concluding that political candidates establish injury-in-fact by having to campaign against
adversaries who obtained illegal financing). The plaintiffs have not alleged that their actual
wages or working conditions have suffered or will likely suffer in any way as a result of the
challenged guidance. In fact, the plaintiffs have not even established that the challenged
guidance has adversely affected (or is likely to adversely affect) the wages and working
conditions of American workers who, unlike the plaintiffs, are employed or seeking employment
as open-range herders. All that the plaintiffs offer in this regard is anecdotal beliefs and
speculation. See, e.g., Mendoza Decl. ¶ 12 (“I believe that the presence [of] H-2A workers has
depressed wages and working conditions.”); Catalán Decl. ¶ 10 (“I have met sheepherders here
in Washington and they have the same bad conditions that I had when I worked as an H-2A
herder.”).
What is more, while the plaintiffs claim that employers categorically do not hire open-
range herders for more than $750 per month because of the defendants’ special procedures, see,
e.g., Matamoros Decl. ¶ 10, the intervenor-defendants have presented unrebutted evidence that
dozens of H-2A open-range herding positions are available that pay more than $750 per month.
See Intervenors’ Ex. 1, ECF No. 34-1. Indeed, several of these positions appear to pay
substantially more than the plaintiffs say they would need to work as herders. For example, Mr.
Mendoza states that he “would be willing to work as a herder if the employer paid $1300 to
$1500 per month,” Mendoza Decl. ¶ 11, yet nineteen H-2A open-range herding positions listed
in the DOL’s certified job registry pay at least $1400 per month, see Intervenors’ Ex. 1, at 1.
As a result of the plaintiffs’ failure to establish that (1) they are or will likely be
competitors in the labor market for open-range herding positions regulated by the challenged
17
guidance; or (2) they are or will likely suffer a financial injury as a result of having to compete
for open-herding positions at depressed wages and working conditions, the plaintiffs have failed
to establish their standing to sue. An Article III injury-in-fact must be, inter alia, “concrete and
particularized rather than abstract or generalized.” Grocery Mfgs. Ass’n v. EPA, 693 F.3d 169,
175 (D.C. Cir. 2012) (internal quotation marks omitted); accord Hein v. Freedom from Religion
Found., Inc., 551 U.S. 587, 620 (2007) (Kennedy, J., concurring) (noting “the familiar
proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is
the generalized grievance that the law is being violated”). Yet, the only allegations that separate
the plaintiffs in the instant action from the general citizenry is their pre-2011 open-range herding
experience and their vague intentions to return to open-range herding someday, if the wages or
working conditions improve. Neither allegation establishes “a personal stake in the outcome of
the controversy as to warrant [the plaintiffs’] invocation of federal-court jurisdiction.” Summers,
555 U.S. at 493 (internal quotation mark omitted).
B. The Plaintiffs Are Not Arguably Within the “Zone of Interests” Protected or
Regulated by the Immigration and Nationality Act.
In addition to the plaintiffs’ lack of an injury-in-fact, the plaintiffs also do not satisfy
prudential standing requirements. “[A] person suing under the APA must satisfy not only Article
III’s standing requirements, but an additional test: The interest he asserts must be ‘arguably
within the zone of interests to be protected or regulated by the statute’ that he says was violated.”
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210
(2012) (quoting Camp, 397 U.S. at 153). This “zone of interests” requirement is “a gloss on the
meaning of [5 U.S.C.] § 702,” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395 (1987), which
limits the universe of persons permitted to sue under the APA to those “adversely affected or
aggrieved by agency action,” 5 U.S.C. § 702. “The essential inquiry” of the zone-of-interests
18
test “is whether Congress ‘intended for a particular class of plaintiffs to be relied upon to
challenge agency disregard of the law.’” Clarke, 479 U.S. at 399 (quoting Block v. Cmty.
Nutrition Inst., 467 U.S. 340, 347 (1984)). The test “is not meant to be especially demanding,”
id., and it “do[es] not require any ‘indication or congressional purpose to benefit the would-be
plaintiff,’” Patchak, 132 S. Ct. at 2210 (quoting Clarke, 479 U.S. at 399–400). Indeed, the
Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate
that the benefit of any doubt goes to the plaintiff.” Id. Nevertheless, the zone-of-interests
doctrine forecloses suit “when a plaintiff’s ‘interests are so marginally related to or inconsistent
with the purposes implicit in the statute that it cannot reasonably be assumed that Congress
intended to permit the suit.’” Id. (quoting Clarke, 479 U.S. at 399).
In order to delineate the zone of interests, a court must “look to the Act itself and to its
legislative history.” Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 804
(D.C. Cir. 1985). In this case, the INA itself speaks relatively clearly about the “interests to be
protected or regulated.” See Patchak, 132 S. Ct. at 2210. The statute states that certification
procedures are required for H-2A visas to ensure that (1) “there are not sufficient workers who
are able, willing, and qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition,” and (2) “the employment of the alien in
such labor or services will not adversely affect the wages and working conditions of workers in
the United States.” See 8 U.S.C. § 1188(a). The manifest import of this language is that the
INA’s certification procedures are intended, inter alia, to protect American workers from the
potential adverse effects of importing cheap, foreign labor. See, e.g., Meese, 761 F.2d at 805(noting that “the legislative history of [the INA] (as initially passed) clearly evinces a
congressional purpose to keep American labor stalwart in the face of foreign competition in the
19
United States”); see also Am. Fed’n of Labor & Congress of Indus. Orgs. v. Brock, 835 F.2d 912,
918–19 (D.C. Cir. 1987) (noting that “[t]he regulatory adverse effect prohibition promulgated
pursuant to the INA was expressly retained in the IRCA,” which establishes “the IRCA’s
continuity with its precursor in the matter of wage protection for American workers”). This
purpose is confirmed by the legislative history of the INA, which stated that the provisions
contained in what is now § 1188(a) “will adequately provide for the protection of American
labor against an influx of aliens entering the United States for the purpose of performing skilled
or unskilled labor.” H.R. Rep. No. 82-1365, at 51 (1952). Likewise, the legislative history of
the 1986 IRCA amendments to the statute “preserved” the principle that “the importation of
foreign workers will not be allowed if it would adversely affect the wages and working
conditions of domestic workers similarly employed.” H.R. Rep. No. 99-682, pt 1, at 80 (1986).
The parties, in fact, do not disagree about the fundamental purposes of the H-2A
certification procedures. Rather, the parties diverge over whether the plaintiffs fall within the
INA’s zone of interests. The intervenor-defendants argue that the plaintiffs do not fall within the
INA’s zone of interests both because they are not “willing,” within the meaning of the statue, and
also because their wages and working conditions are not being adversely affected by the
importation of foreign labor. See Intervenors’ Mem. at 14–19. The plaintiffs contend, however,
that “[t]he INA explicitly protects U.S. workers, like plaintiffs, who would be working as herders
if the TEGLs had not depressed the wages and working conditions available to them.” Pls.’
Opp’n at 12–13. The plaintiffs reason that (1) they “are U.S. workers,” (2) who “allege that the
TEGLs allow the wages and working conditions in their preferred profession to be adversely
affected by the importation of foreign workers,” and thus they are within the INA’s zone of
interests. See id. at 10–11.
20
The record supports the conclusion that all of the plaintiffs are “United States workers”
within the meaning of the INA, since each plaintiff is, according to his sworn affidavit, either “an
alien lawfully admitted for permanent residence” or “an immigrant otherwise authorized . . . to
be employed in the U.S.” See 20 C.F.R. § 655.103. The problem for the plaintiffs, however, is
that they are not “willing and available” or “similarly employed” within the meaning of 8 U.S.C.
§ 1188(a). The absence of both of these features push the plaintiffs outside the arguable zone of
interests that Congress intended to protect or regulate in the INA. As the First Circuit held in the
context of 8 U.S.C. § 1188, “[a] person who is willing only if certain conditions are met is not
‘willing and available.’” Hernandez Flecha v. Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977). The
First Circuit went on to state: “To carry the plaintiffs’ ignoring conditions to its logical extent,
we ask whether the cynic who said that every man has his price would say that every man is
‘willing and available’? If so, the phrase is meaningless.” Id. The Court finds this reasoning
persuasive. If the zone of interests of the INA’s certification procedures were as broad as the
plaintiffs claim, any person could be considered within that zone so long as she professed some
intention to work in a “preferred profession” on the condition that the wages and working
conditions were attractive enough. To demonstrate the absurdity of this position, an individual
who claimed an intention to work in a “preferred profession” as a day laborer picking fruit—so
long as the position paid $100,000 per year, permitted hourly breaks in air-conditioned huts, and
paid mileage to and from the work site—would fall within the INA’s zone of interests. This
example is not provided to suggest that the plaintiffs themselves have made such lofty demands,
but it merely demonstrates the inherent limits of the plaintiffs’ argument.
Likewise, the zone of interests of the INA’s H-2A certification procedures is inherently
limited by whether the complaining party is “similarly employed” to those he says are adversely
21
affecting his wages and working conditions. This is a simple matter of labor economics. The
intent of the INA’s H-2A certification procedures is to ensure that an influx of foreign labor does
not deflate the wages and working conditions of American workers. Yet, the differentiation of
human capital in the labor market means that only those “similarly employed” will have the
economic incentive to contest the importation of a given type of worker. See, e.g., Clarke, 479
U.S. at 399 (“The essential inquiry [of the zone of interests test] is whether Congress ‘intended
for a particular class of plaintiffs to be relied upon to challenge agency disregard of the law.’”
(quoting Block, 467 U.S. at 347)). By way of example, an individual who makes a living fixing
automobiles cannot be relied upon to challenge the wages provided to foreigners who are hired
to be street-sweepers because there is no reason to believe that the wages paid or the working
conditions provided to the street-sweepers have any effect (let alone an adverse one), on the
mechanic’s wages or working conditions—the wages and working conditions of the two
professions are apples and oranges.
This conclusion is consistent with prior decisions in this Circuit. The D.C. Circuit has
held that employers challenging a denial of an H-2A certification are within the INA’s zone of
interests. See, e.g., Pesikoff v. Sec’y of Labor, 501 F.2d 757, 760 (D.C. Cir. 1974) (holding that
the interest “of American employers in obtaining qualified employees” is “arguably within the
zone of interests to be protected or regulated by” the INA). The Circuit has also extended the
INA’s zone of interests to union members who had allegedly lost job opportunities to imported
foreign workers, see Meese, 761 F.2d at 805, and even to alien workers challenging the denial of
labor certifications, see De Jesus Ramirez v. Reich, 156 F.3d 1273, 1276 (D.C. Cir. 1998). What
these categories of plaintiffs have in common is that they all have some proverbial skin in the
game—they all have an economic interest that is arguably protected or regulated by the INA’s
22
certification procedures. The plaintiffs in the instant action have no such personal stake. Rather,
the plaintiffs are merely concerned bystanders vis-à-vis the open-range herding labor market, and
as bystanders their “interests are so marginally related to . . . the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the suit.” See Clarke, 479
U.S. at 399. Although the Court sympathizes with the plaintiffs’ discouragement with the
alleged deterioration of the wages and working conditions in their former profession, 8 that
discouragement is insufficient to bring them within the INA’s zone of interests. A contrary
conclusion would permit the validity of the defendants’ actions to be decided “in the rarified
atmosphere of a debating society,” rather than the appropriate “concrete factual context
conducive to a realistic appreciation of the consequences of judicial action.” See Valley Forge
Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).
Therefore, the Court holds that the plaintiffs, as former participants in the open-range herding
labor force, do not fall within the zone of interests arguably protected or regulated by the INA,
and therefore they do not have prudential standing to pursue this action.
IV. CONCLUSION
As the foregoing discussion makes clear, the plaintiffs have not established a cognizable
injury-in-fact, which is necessary to confer standing to sue under Article III. Furthermore, the
plaintiffs fall outside the INA’s “zone of interests,” and therefore they also lack prudential
standing to sue. Hence, this action does not satisfy Article III’s case-or-controversy requirement,
the Court is without subject-matter jurisdiction to hear it, and it must be dismissed.
An appropriate Order accompanies this Memorandum Opinion.
8
The intervenor-defendants dispute that the 2011 TEGLs have resulted in any adverse change, stating that “the only
changes the 2011 TEGLs made to the existing regime were either positive or neutral with respect to wages and
working conditions.” Reply Br. in Further Supp. of Intervenor’ Mot. to Dismiss at 3, ECF No. 34.
23
Date: February 21, 2013
/s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
24