Hispanic Affairs Project v. R. Alexander Acosta
901 F.3d 378
D.C. Cir.2018Background
- H-2A visas permit nonimmigrant agricultural workers to enter the U.S. for work that is "temporary or seasonal." DHS and DOL jointly administer the program: DOL certifies temporary need; DHS grants final visas.
- In practice, open-range herders (sheep/goat) commonly work near-continuously for ~36 months on repeated H-2A cycles (work ~3 years, return home briefly, then return), relying on routine extensions.
- DOL historically exempted herders from standard H-2A wage rules (2011 Guidance Letter). The Guidance Letter was later vacated for lacking notice-and-comment, and DOL promulgated a 2015 Rule addressing herders (including a 364‑day certification period and a phased minimum wage rising to federal minimum by 2018).
- Hispanic Affairs Project (a herder membership org.) and four herders sued DOL and DHS under the APA, challenging: DHS’s practice of routinely extending H-2A stays (creating de facto permanent employment); DOL’s 2015 classification of herding as "temporary" permitting 364‑day certifications; the 2015 Rule’s wage determinations; and seeking declaratory relief about the vacated 2011 Guidance Letter.
- The district court dismissed or granted summary judgment against plaintiffs on several grounds (standing, exhaustion, merits). The D.C. Circuit reviews de novo and evaluates the agencies’ actions under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DHS practice of routinely extending H-2A stays | DHS effectively permits multi‑year, repeated stays for herders, converting temporary visas into permanent employment; practice is arbitrary and contrary to statute/regulation | DHS contends plaintiffs mount a programmatic challenge barred by Lujan; argues challenges attack DHS regulations or are time‑barred | Court: Plaintiffs plausibly pled a distinct challenge to DHS’s practice (not the written regulations); remanded to district court to resolve merits and allow discovery on DHS practice |
| DOL’s 2015 classification of herding as “temporary” (364‑day certification) | Herding is in fact long‑term/permanent; DOL failed to justify treating herding as temporary—plaintiff exhausted issue before agency | DOL argues issue was not preserved in rulemaking and plaintiffs waived challenge | Court: DOL’s rule expressly addressed temporary‑need comments; DOL bore an affirmative burden to justify the assumption; challenge preserved and remanded for merits |
| 2015 Rule minimum wage for herders (adopting federal minimum, 48‑hour week) | DOL used flawed data (employer‑reported), ignored a herders’ survey reporting much higher hours, and unduly favored employers | DOL relied on the most comprehensive nationwide data available, explained limits of other data, balanced industry collapse risk vs. U.S. worker protection, and reasoned transparently under APA | Court: DOL’s wage/hour choices were reasonable and adequately explained; affirmed district court upholding the wage provisions |
| Declaratory relief re: vacated 2011 Guidance Letter (wage rates) | Plaintiffs seek declaration that 2011 Guidance Letter was substantively invalid to aid private restitution claims against employers | Defendants note the Guidance Letter already was vacated and thus has no legal force; plaintiffs cannot show additional relief would increase likelihood of recovery from third‑party employers | Court: Plaintiffs lack Article III standing to seek relief on the already‑vacated 2011 Letter; claim dismissed for lack of jurisdiction |
Key Cases Cited
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (agency guidance treated as rule; required notice-and-comment)
- INS v. Yueh‑Shaio Yang, 519 U.S. 26 (1996) (agency departures from announced policy may be arbitrary)
- Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 2008) (agency maintaining inconsistent policies can be arbitrary and capricious)
- Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) (limits on programmatic APA challenges; distinguishes particular agency measures that are reviewable)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (standard for arbitrary and capricious review)
- United States v. Mead Corp., 533 U.S. 218 (2001) (notice-and-comment rulemaking conveys the force of law and is judicially reviewable)