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Alpha Services, LLC v. Perez

United States District Court, S.D. Mississippi, Northern Division

October 23, 2014

THOMAS E. PEREZ, in his official capacity, as the United States Secretary of Labor, and the UNITED STATES DEPARTMENT OF LABOR, Defendants.


DANIEL P. JORDAN, III, District Judge.

This case brought under the Administrative Procedure Act is before the Court on Defendants' Motion to Dismiss for Lack of Jurisdiction [8] and Plaintiff's Motion for Leave to File a First Amended Complaint [11]. Because there is no longer a live case or controversy between the parties, Defendants' motion is granted, and Plaintiff's motion is denied.

I. Facts and Procedural History

Plaintiff Alpha Services, LLC, is a forestry-services company that performs reforestation services for its clients. To help fill its workforce, Alpha Services participates in the federal H-2B visa program, which "permits U.S. employers to recruit and hire temporary unskilled, nonagricultural workers from abroad to fill positions that no qualified U.S. worker will accept." La. Forestry Ass'n Inc. v. Sec'y U.S. Dep't of Labor, 745 F.3d 653, 659 (3d Cir. 2014) (citing 8 U.S.C. § 1101(a)(15)(H)(ii)(b)). The Third Circuit recently described generally how the program works:

First, an employer must obtain a temporary labor certification from the [Department of Labor "DOL"]. See 8 C.F.R. § 214.2(h)(6)(iii)(A). This requires the employer to apply to the DOL for a prevailing wage determination for the area of intended employment. See 20 C.F.R. § 655.10. The DOL then calculates the prevailing wage based upon pertinent regulations, e.g., the 2008 or 2011 Wage Rules. Id. The employer must also submit a work order with the state workforce agency serving the geographical area of intended employment and advertise the position at a wage equal to or higher than the prevailing wage as determined by the DOL. Id. Once these conditions have been satisfied, the DOL will issue the labor certification, which serves as the DOL's verification that the employer has demonstrated that "there is an insufficient number of U.S. workers who are qualified and who will be available for the job opportunity for which certification is sought and that the employment of the H-2B workers will not adversely affect the benefits, wages, and working conditions of similarly employed U.S. workers." Id. § 655.50(b). Only after the DOL issues the labor certification may an employer proceed to the second stage of the process: filing an H-2B visa application with the [Department of Homeland Security "DHS"]. See 8 C.F.R. § 214.2(h)(6)(iii)(C), (E). Although the DOL's labor certification is a prerequisite to obtaining an H-2B visa petition, the authority to grant or deny an H-2B visa petition ultimately rests with the DHS alone. See 8 U.S.C. § 1184(c).

Id. at 660-61. The issue in this case centers on the issuance of prevailing-wage determinations ("PWDs") and labor certifications by the DOL.

Alpha Services alleges that

[o]ver the course of many years, DOL developed and applied a consistent approach to the issuance of PWDs for forestry. For several seasons, forestry employers typically submitted PWD requests using a single Service Contract Act occupation as the basis for the determination. The National Prevailing Wage Center would then issue a PWD based on that specific Service Contract Act occupation. The employer would next advertise for the available position at the appropriate prevailing wage, and then complete the labor certification process.

Compl. [1] ¶ 16. But last season,

DOL's practice changed. As before, employers submitted a request for a PWD using a single Service Contract Act occupation as the basis for that determination. This time, however, the National Prevailing Wage Center issued two or more PWDs - one for each major occupational component of the proposed job opportunity ( e.g., Tree Planting and Brush/Pre-Commercial Thinning).

Id. ¶ 17.

Between mid-2013 and February 25, 2014, Alpha Services sought and was granted two DOL labor certifications approving its use of H-2B workers based on Alpha Services advertising the positions with a wage range consistent with the multiple PWDs it had received from the DOL. For example, in January 2014, Alpha Services advertised a need for "130 Temporary Forestry Workers, " for whom the applicable wage was advertised as "$7.62/hr up to possible $10.76/hr OT $11.43/hr up to possible $16.14/hr" with wages "var[ying] per area." Compl. [1] Ex. 10. Alpha Services asserts that, with regard to each of these labor certifications, "[a]t no time did the [DOL] Certifying Officer indicate that Alpha Services'[s] advertisement..., which included a description of the job duties and a range of wage rates for the job duties, failed to comply with the applicable advertising requirements." Id. ¶ 27.

In late 2013, Alpha Services began the process of applying for another labor certification for work to be performed between April 4, 2014, and July 31, 2014. It obtained PWDs and, consistent with its approach on its two previous applications, advertised a range of wages to be paid the workers. On February 24, 2014, the DOL issued a request for information to Alpha Services, identifying deficiencies in its application "related to how Alpha Services advertised for the job opportunities." Id. ¶ 30. In particular, the DOL indicated that Alpha Services should have advertised "at [a] wage rate which encompasses the entire scope of the job duties required, " which "effectively demands that the regulated employers pay a single wage for all occupations and that it be the highest of all the possible wages, even though the proper prevailing wage depends on where the work is performed and the particular job being performed." Id. ¶ 31.

Alpha Services responded to the request for information. But before receiving a reply or final determination, Alpha Services filed this lawsuit against DOL and the Secretary of Labor, asserting that the change in the way the DOL required H-2B jobs to be advertised amounted to a new substantive rule that the DOL adopted without complying with the notice-and-comment procedures of the Administrative Procedure Act. Alpha Services simultaneously moved for a temporary ...

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