United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, Jr., District Judge.
Plaintiff International Labor Management Corporation ("ILMC") has moved for a temporary restraining order, preliminary injunction, and a writ of mandamus. (Doc. 14.) The Government has responded in opposition (Doc. 22), and Plaintiff has replied (Doc. 29). On April 7, 2014, this court heard argument from the parties. The motion is ripe for ruling.
Plaintiff assists companies in need of foreign, seasonal labor to navigate the complex regulatory process authorizing these foreign workers. Plaintiff claims the Department of Labor ("DOL") has failed to certify Plaintiff's applications on behalf of employers for H-2A and H-2B workers within the statutory or regulatory deadlines, or acted outside its statutorily mandated timeframes to approve these worker applications. This delay, Plaintiff argues, has caused damage both to Plaintiff, as agent for employers, and to Plaintiff's employer-clients. Plaintiff contends it will suffer substantial harm if the problem is not immediately rectified. The Government does not dispute that the DOL has been untimely in these applications; rather, it argues that (1) Plaintiff does not have standing to bring these claims; (2) the statutory deadlines are not subject to enforcement by this court; and (3) that delayed processing of the applications was to ensure that the information in the applications was accurate. For the reasons set forth herein, this court finds as follows: (1) Plaintiff has standing, as authorized agent for its employer-clients, under Lexmark v. Static Control ; (2) the seven-day deadline within which the DOL is required to either issue a notice of deficiency or notice of acceptance is a mandatory deadline with which the DOL may be required to comply; (3) the failure by the DOL to issue a notice of deficiency or notice of acceptance causes delay to the certification process and related damage to Plaintiff and its employer-clients; and (4) Plaintiff is entitled to a preliminary injunction compelling the DOL to issue either a notice of deficiency or notice of acceptance within the required seven-day period and to issue the certification described in 8 U.S.C. § 1188(a)(1) if the employer-client has complied with the criteria.
I. RELEVANT FACTS
A. H-2A and H-2B Programs
ILMC is an agent for a number of farming and/or agriculture employers participating in the H-2A and H-2B programs. Those two programs, H-2A (8 U.S.C. § 1101(a)(15)(H)(ii)(a)) and H-2B (8 U.S.C. § 1101(a)(15)(H)(ii)(b)), are thoroughly described in an opinion of the Fourth Circuit, North Carolina Growers' Ass'n, Inc. v. United Farm Workers , 702 F.3d 755 (4th Cir. 2012), and will not be further described here except as necessary to this order.
Generally, a company in need of foreign workers to fill jobs for which no American workers are available is required to apply to the Department of Labor for a certificate issued pursuant to 8 U.S.C. § 1188(c)(1). The application process and related deadlines, as established by statute and regulation, are different for the H-2A and H-2B programs.
With respect to the H-2A program, the DOL cannot require that the employer's application be filed more than 45 days before the date of need. 8 U.S.C. § 1188(c)(1). Once the application is filed, "[t]he employer shall be notified in writing within seven days of the date of filing" if it is deficient. 8 U.S.C. § 1188(c)(2)(A) (emphasis added). Those deficiencies may include matters such as the absence of an original signature of the employer (20 C.F.R. § 655.130(d)). If a notice of deficiency is sent, the employer must be given the opportunity to correct any deficiencies and if the application is corrected within five days, the otherwise applicable timeframes remain unchanged.
If the certifying officer determines that the application is complete, then regulations require that the certifying officer notify the employer within seven calendar days of the receipt of the application. See 20 C.F.R. § 655.143(a) ("When the CO determines the Application for Temporary Employment Certification and job order are complete and meet the requirements set forth in this subpart, the CO will notify the employer within 7 calendar days of the CO's receipt of the Application for Temporary Employment Certification."). Of particular significance to this opinion, the notification of receipt contains a directive to the employer requiring positive recruitment of United States workers, undertaken in accordance with the regulations and directives of the certifying officer. See 20 C.F.R. § 655.143(b)(2) (The notice must "[d]irect the employer to engage in positive recruitment of U.S. workers in a manner consistent with § 655.154 and to submit a report of its positive recruitment efforts as specified in § 655.156".).
8 U.S.C. § 1188(c)(3)(A) requires that the Secretary of Labor:
[S]hall make, not later than 30 days before the date such labor or services are first required to be performed, the certification described in subsection (a)(1) if -
(i) the employer has complied with the criteria for certification (including criteria for the recruitment of eligible individuals as prescribed by the Secretary).
The statute contains two schedule requirements for the DOL: a notice of deficiency to be issued within seven days of the application and a certification to be issued not later than thirty days before the date the labor is required. The "certification described in subsection (a)(1), " which shall be made no later than 30 days before the date labor is required, is the following:
(a) Conditions for approval of H-2A petitions
(1) A petition to import an alien as an H-2A worker (as defined in subsection (i)(2) of this section) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that -
(A) 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
(B) 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.
8 U.S.C. § 1188(a).
As particularly relevant to this case, the failure by the DOL to timely issue either a notice of deficiency or a notice of acceptance can substantially delay the entire certification process period. Applications are not filed more than 45 days prior to the date of need and certification is required at least 30 days prior to the date of need. The entire H-2A certification process is therefore required to occur within a 15-day period. That period allows for seven days of initial review and then seven to eight days of positive recruitment of American workers prior to certification.
The H-2B program does not contain similar statutory deadlines. However, the H-2B program does contain a regulatory scheme with required action by the DOL to occur within particular timeframes. Specifically, the applicable regulations, 20 C.F.R. §§ 655.31 and 655.33, require the DOL to either issue a notice of deficiency or a notice of acceptance within 7 days of receipt of an H-2B application.
In 2013, ILMC acted as agent on behalf of a number of employers seeking workers pursuant to the H-2A and H-2B programs. According to ILMC, during 2013, the DOL generally followed the statutory and regulatory guidelines with respect to its employer-clients. (See Pl.'s Reply Br. in Resp. to Defs.' Mem., Ex. 58 (Doc. 29-6)(comparing applicable timeframes for selected clients in 2013 and 2014).)
B. ILMC's Present Claims
ILMC's problems appear to have arisen following the indictment of ILMC, its owner, and its president on January 31, 2014, for allegedly submitting fraudulent H-2A and H-2B applications. That case, United States v. Eury, et al., 1:14CR39 (M.D. N.C. 2014), has been scheduled for trial in September of 2014 upon the defendants' pleas of not guilty.
According to the Complaint and subsequent pleadings, the applications for certification filed by ILMC this year, following the January Indictment, were ignored by the DOL or otherwise not timely processed. As to the H-2A applications, no notices of deficiency or acceptance were issued within the relevant seven-day time period. As a result, no positive recruitment steps could be taken by the employer. Even more significantly, certificates were not issued by the DOL at least 30 days prior to the date of need, and in many instances no certificate was issued by the date of need. According to ILMC, this failure to act and failure to act in a timely fashion by the Department of Labor caused damage, both to ILMC and its employer-clients.
"A preliminary injunction is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial." Real Truth About Obama, Inc. v. Fed. Election Comm'n , 575 F.3d 342, 345 (4th Cir. 2009) cert. granted, judgment vacated, 559 U.S. 1089 (2010), and reissued in relevant part sub nom. Real Truth About Obama, Inc. v. F.E.C. , 607 F.3d 355 (4th Cir. 2010). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008).
The party seeking the injunction must show that the extraordinary remedy is warranted by a "clear showing." Id. at 22; Real Truth , 575 F.3d at 345. "[T]he substantive standard for granting a temporary restraining order is the same as the standard for entering a preliminary injunction." Tchienkou v. Net Trust Mortg., Civil Action No. 3:10-CV-00023, 2010 WL 2375882, at *1 n* (W.D. Va. June 9, 2010) (citing Commonwealth of Va. v. Kelly , 29 F.3d 145, 147 (4th Cir. 1994)).
Plaintiff contends that it has presented evidence which entitles it to injunctive relief. Defendants contend, initially, that Plaintiff has failed to establish standing to bring this claim. This court will address standing before moving to the merits of Plaintiff's claim for injunctive relief.
Defendants assert that Plaintiff lacks prudential standing because its interests are not within the "zone of interests" contemplated by the statute. Defendants argue that because Plaintiff is essentially a middle-man (agent) between employers and migrant workers, it does not fall under the zone of interests that 8 U.S.C. § 1188 is meant to protect - namely, employers, domestic workers, and foreign workers.
The Supreme Court has recently clarified the contours of prudential, as opposed to constitutional, standing. The Court began by noting that the very notion of prudential standing was at odds with the Court's "recent reaffirmation of the principle that a federal court's obligation to hear and decide cases within its jurisdiction is virtually unflagging." Lexmark Int'l, Inc. v. Static Control Components, Inc., ____ U.S. ____, ____ , 134 S.Ct. 1377, 1386 (2014) (internal quotation marks omitted). One of these prudential standing considerations was whether "a plaintiff's complaint fall[s] within the zone of interests protected by the law invoked." Allen v. Wright , 468 U.S. 737, 751 (1984). The Lexmark Court characterized the notion of "prudential standing' is a misnomer as applied to the zone-of-interests analysis, which asks whether this particular class of persons ha[s] a right to sue under this substantive statute." Lexmark , 134 S.Ct. at 1387 (quoting Ass'n of Battery Recyclers, Inc. v. EPA , 716 F.3d 667, 675-76 (D.D.C. 2013) (concurring opinion)). In other words, the Court phrased the inquiry as "[w]hether a plaintiff comes within the "zone of interests"' is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim." Lexmark , 134 S.Ct. at 1387.
In Lexmark, the Court noted with specific reference to the Administrative Procedure Act ("APA"), that the zone of interests test "is not especially demanding.'" Id. at 1389 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak , 567 U.S. ____, ____, 132 S.Ct. 2199, 2210 (2012)). The Lexmark Court went on to describe the zone of interests tests as it related to the Administrative Procedure Act as follows:
In [the Administrative Procedure Act] context we have often "conspicuously included the word arguably' in the test to indicate that the benefit of any doubt goes to the plaintiff, " and have said that the test "forecloses suit only 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 authorized that plaintiff to sue. [Patchak] at ____, 132 S.Ct., at 2210. That lenient approach is an appropriate means of preserving the flexibility of the APA's omnibus judicial-review ...