Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Faith Forestry Services, Inc. v. United States Department of Labor

United States District Court, N.D. Mississippi, Aberdeen Division

August 1, 2018




         Faith Forestry filed its Complaint in this Court on December 22, 2017 seeking relief from certain wages imposed by the Department of Labor under the H-2B temporary worker visa program. After briefing and a hearing, this Court denied Faith Forestry's request for preliminary injunctive relief. See Order [36]; Memorandum Opinion [37]. Now before the Court is the Department of Labor's Motion to Dismiss [31]. The issues are fully briefed and ripe for review.

         Factual and Procedural Background

         The facts and circumstances giving rise to this case are largely undisputed. Faith Forestry employs forestry workers at worksites in several southeastern states. Some of Faith Forestry's work requires large numbers of workers on a seasonal basis. To meet the demand for workers, Faith Forestry regularly uses foreign workers employed through the H-2B visa program. Applying for H-2B worker visas is a multi-step process that requires some affirmative actions from Faith Forestry, i.e., advertising the open positions to domestic workers, and multiple decisions from government agencies including, Citizen and Immigration Services, the Department of Homeland Security, and the Department of Labor. As part of the visa process, the Department of Labor assembles and issues a “prevailing wage determination.” Faith Forestry must use this wage determination in various ways. Perhaps most importantly, the prevailing wage determination sets the minimum wage that Faith Forestry must pay its H-2B visa workers. The prevailing wage determination is based on numerous factors with geography as an important component. Thus, the prevailing wage determination issued to Faith Forestry is different for different worksites or locations. The Department issues its prevailing wage determinations annually, at the beginning of July each year.

         In April of 2017, Faith Forestry applied for approximately 700 H-2B visas for the upcoming tree-planting season, October 2017 through March 2018. Faith Forestry followed all the steps of the visa program, the Department of Labor issued prevailing wage determinations for all of Faith Forestry's worksites, the H-2B visas were issued, and Faith Forestry ultimately hired approximately 650 foreign workers.

         Faith Forestry later learned that some other companies that applied for H-2B visas after Faith Forestry, and after the new July determinations were published, were receiving different prevailing wage determinations for some worksites in Alabama. At least some of these later wage determinations were “corrected” determinations issued by the Department of Labor. Apparently, the Department used some erroneous data when calculating its new wage determinations for certain worksites. The Department issued “corrected” wage determinations, which changed the prevailing wage. Although Faith Forestry is focused on the worksites in Alabama where the “corrected” wage was lowered, it acknowledges that wage determinations for some locations increased based on the post-July 1 data.

         Concerned that these newer determinations would give its competitors an unfair bidding advantage, Faith Forestry contacted the Department of Labor by email and requested that the Department lower Faith Forestry's wage determination for these worksites to match. The Department of Labor refused, stating that the wage determination was set based on the relevant data available at the time. Specifically, the Department stated that because Faith Forestry's application was determined before July 1, 2017, it used the labor data from the previous years that did not contain erroneous data.

         The end result here is that Faith Forestry is stuck with a different prevailing wage determination than some companies that applied for visas after July 1. Faith Forestry requests that this Court declare the wage determination issued to it void from the beginning, and enter a permanent injunction allowing it to pay its H-2B visa workers at particular worksites the “corrected” wage of $15.00 per hour. The wage determination issued to Faith Forestry for the worksites in question ranges from $19.71 to $26.08 per hour.

         Question Presented

         Faith Forestry is not challenging the validity of the initial wage determination. In other words, Faith Forestry does not argue that its original wage determination, based on the older data, was erroneous when issued. The Department asserts that it based Faith Forestry's wage determination on the data available at the time, that it has to update and implement new wage data on a regular basis to effectively administer the H-2B program, and it does so on July 1. Faith Forestry applied for the wage determination prior to July 1, so the Department used the wage data available at that time. Faith Forestry does not refute this assertion.

         Aggrieved that the new post-July 1 data was more favorable to employers at certain worksites, Faith Forestry is asking that it be permitted to use the newer wage determinations issued to other companies so that it can benefit from a lower determination. Although it asserts otherwise in its complaint, Faith Forestry now acknowledges that the wage determinations based on the new data actually increased wages at some worksites. Faith Forestry now concedes that, if granted relief, it will abide by all of the newer wage determinations, higher and lower.

         It is important to note that in its correspondence with the Department, Faith Forestry only requested a “correction” of the wage determinations that were lower for certain worksites in Alabama. The Department merely responded that Faith Forestry's wage determination was based on the pre-July 1 data. Faith Forestry did not request a review of its wage determination in its entirety. It is also important to note that when Faith Forestry made its email request to the Department to lower its wage determination, at least some of Faith Forestry's H-2B visa workers were already working.[1]

         The Department now requests that the Court dismiss the Plaintiff's complaint. The Department argues first, that the Plaintiff lacks standing to bring this action, because the Plaintiff's alleged injury cannot be redressed by a favorable decision in this case; second that the Plaintiff failed to exhaust its administrative remedies; third that the Plaintiff fails to state a claim under the Administrative Procedure Act; and finally, that the Plaintiff fails to state a claim that § 558 of the Administrative Procedures Act provides it with some type of relief.

         Because the standing is the most fundamental issue raised by the Parties, the Court will address it first. See Singh v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.