374 F. Supp. 3d 63
D.C. Cir.2019Background
- H-2A program requires DOL to set annual Adverse Effect Wage Rates (AEWRs) to prevent foreign temporary workers from depressing domestic agricultural wages.
- In 2010 the DOL finalized a rule (2010 Rule) adopting a methodology for AEWRs: the USDA annual weighted average wage for field and livestock workers, and concluded it need not make specific findings of current "adverse effect."
- Plaintiffs Peri & Sons Farms and the National Council of Agricultural Employers (NCAE) challenged the 2019 AEWR notice (which applied the 2010 methodology) under the Administrative Procedure Act, alleging (1) lack of statutory authority because DOL never found an adverse effect, and (2) arbitrary and capricious rulemaking for failing to consider geographic, occupational, skill, experience differences, and H-2A costs (housing/transport).
- Defendants argued the claims were time-barred because the challenged legal determinations were made in the 2010 Rule; Plaintiffs sued in 2019.
- The Court treated the preliminary-injunction motion as consolidated with the merits and held it lacked subject-matter jurisdiction because the claims accrued with the 2010 final rule and were thus barred by the six-year statute of limitations in 28 U.S.C. § 2401(a).
- The Court rejected Plaintiffs' attempt to invoke the narrow exception that permits untimely facial challenges when an agency "applies" a rule, finding the 2019 notice merely implemented the 2010 Rule for all H-2A employers rather than applying it in an adjudicative or enforcement action directed at the plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOL had statutory authority to issue AEWRs without making a finding of an "adverse effect" | DOL exceeded its authority by issuing AEWRs absent an adverse-effect finding | The agency decided in 2010 it need not find current wage depression; the 2019 notice only updated rates under that methodology | Dismissed as time-barred: accrual occurred with the 2010 Rule, so claim untimely |
| Whether DOL acted arbitrarily and capriciously by not considering geographic, occupational, skill, experience differences and H-2A costs | The 2019 notice failed to account for relevant factors and extra H-2A costs, making it arbitrary | These methodological choices and responses to comments were made in the 2010 rulemaking; the 2019 notice merely updated rates under that settled methodology | Dismissed as time-barred: substantive methodology challenge accrued in 2010 |
| Whether the 2019 AEWR notice constituted an "application" of the 2010 Rule that would permit a timely-as-applied challenge outside § 2401(a) | The notice applied the rule to plaintiffs, restarting reviewability or fitting the narrow exception | The notice implemented the existing rule generally and did not apply it in an adjudicative/enforcement manner to plaintiffs specifically | Court: 2019 notice is not the sort of application that triggers the narrow exception; exception not met |
| Whether continuing-violation or renewal doctrines save the claims | Plaintiffs argued recurring annual notices create a continuing violation or restart limitations | Defendants: § 2401(a) is jurisdictional; continuing-violation doctrine doesn't revive facial challenges to a final rule | Court: argument waived at hearing and, in any event, jurisdictional limitations bar the claim; continuing-violation inapplicable |
Key Cases Cited
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (APA claims subject to § 2401(a) limitations)
- Spannaus v. U.S. Dep't of Justice, 824 F.2d 52 (D.C. Cir. 1987) (§ 2401(a) is a jurisdictional waiver to be strictly construed)
- Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec., 892 F.3d 332 (D.C. Cir. 2018) (right of action accrues on date of final agency action)
- Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014) (narrow exception to time bar when agency applies a rule in a way that permits challenge)
- Alaska Community Action on Toxics v. EPA, 943 F. Supp. 2d 96 (D.D.C. 2013) (periodic notices implementing an earlier policy do not restart limitations for challenging the underlying rule)
- Edison Elec. Inst. v. Interstate Commerce Comm'n, 969 F.2d 1221 (D.C. Cir. 1992) (distinguishing mere effects of later agency action from an "application" of an earlier rule that permits belated challenge)
- Genuine Parts Co. v. EPA, 890 F.3d 304 (D.C. Cir. 2018) (permitting narrow untimely challenge where agency applied the challenged regulation in a way that affected plaintiff)