Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160

Background

Plaintiffs (Hispanic Affairs Project and U.S. shepherds) challenge parts of DOL’s 2015 Final Rule codifying special H‑2A procedures for herders, arguing the Rule permits effectively permanent employment, sets a subminimum wage, and overbroadly defines “range” and allowable shepherd tasks.
This litigation follows Mendoza v. Perez (D.C. Cir. remand): the D.C. Circuit held earlier TEGLs invalid for lack of notice‑and‑comment and directed DOL to promulgate a rule; DOL issued the 2015 Final Rule after notice and comment.
Procedurally, plaintiffs’ claims against the government based on earlier TEGLs were dismissed or transferred; remaining Counts (V–VII) challenge the 2015 Rule under APA §§ 706(2)(A), (C), and (D).
The government moved to strike extra‑record exhibits (APA review is generally limited to the administrative record); Court allowed some extra‑record materials (notably two OLC memoranda and an attorney’s data analysis) and struck others.
On the merits, the Court denied plaintiffs’ summary judgment and granted summary judgment to the government and intervenor employer associations, upholding the challenged portions of the 2015 Rule concerning wage methodology, definitions of range/production, and the >50% on‑range threshold; the Court dismissed or held waived plaintiffs’ challenge that the Rule allows permanent H‑2A employment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2015 Rule permits effectively permanent H‑2A herder employment	The Rule (no limit on renewals; 364‑day certifications + DHS practice) enables multi‑year, indefinitely renewed employment contrary to INA’s “temporary or seasonal” requirement	DOL only issues labor certifications (not visas); DHS adjudicates visas under its H‑2A regs that limit renewal and contain touchback/3‑year rules; plaintiffs waived this argument in rulemaking and cannot facially attack DHS regs now	Challenge to permanent‑employment policy was waived or improperly framed as against DHS; Court did not reach merits and dismissed/held waived the claim
Whether DOL’s wage methodology (48 hours × $7.25 × 4.333) is arbitrary and creates a de facto $3/hour wage	DOL arbitrarily chose 48 hours (undercounts actual hours) and adopted federal minimum wage as hourly base, producing an unlawful subminimum/monthly rate that harms U.S. workers	DOL reasonably evaluated available data (Form ETA‑9142A aggregated via Tuddenham, Colorado survey limitations, commenters), considered economic comments that an FLS‑based AEWR would cause adverse effects, and rationally adopted a phased approach using $7.25 floor	Court upheld DOL’s methodology as not arbitrary or capricious; wage provision sustained
Whether the Rule’s definitions of “range” and “production of livestock” and the >50% on‑range requirement unlawfully broaden the class of positions eligible for special procedures (thereby harming domestic workers)	New definitions allow cultivated or near‑headquarters work to qualify, and the >50% threshold plus permitted off‑range ‘closely and directly related’ tasks effectively convert ranch‑hands into shepherds	DOL retained limiting structure: majority (>50%) on range; range defined by multi‑factor test (away from ranch headquarters, remoteness, acreage, need for range housing); off‑range tasks limited to examples of closely/directly related production duties; many TEGL constraints preserved	Court found DOL’s multi‑factor definition and >50% threshold reasoned and not arbitrary; provisions upheld
Whether extra‑record materials submitted by plaintiffs should be considered	Plaintiffs offered declarations, OLC memoranda, agency website certs, and data analyses to show agency error and standing	Government argued APA review is limited to administrative record; supplementation is allowed only in narrow, exceptional circumstances	Court accepted limited extra‑record materials (OLC memoranda, counsel’s data analysis, and administrative‑record compilations) but struck other exhibits; applied administrative‑record review principles

Key Cases Cited

Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (TEGLs vacated for failure to engage in notice‑and‑comment rulemaking)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (standard for arbitrary and capricious review under the APA)
CTS Corp. v. EPA, 759 F.3d 52 (D.C. Cir. 2014) (judicial review of agency action limited to the administrative record)
Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (circumstances in which extra‑record evidence may be considered)
AFL‑CIO v. Dole, 923 F.2d 182 (D.C. Cir. 1991) (agency discretion in selecting wage methodology under imperfect data)