UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED FARM WORKERS 29700 Woodford-Tehachapi Road Keene, CA 93531
and
FARMWORKER JUSTICE 1126 16th Street, NW, Suite 270 Washington, DC 20036
Plaintiffs,
v.
DEPARTMENT OF LABOR 200 Constitution Ave., NW Washington, DC 20210
Defendant.

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) ) C.A. No. _ _ _ _ _ __

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Case: 1:07-cv-02241

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Assigned To: Kennedy, Henry H

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Assign. Date: 12/13/2007

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Description: FOIAlPnvacy Act

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. This action under the Freedom ofInformation Act (FOIA), 5 U.S.c. § 552, arises from a

series of FOIA requests seeking documents related to employer applications for certification to

hire temporary foreign agricultural workers through the H-2A guestworker program, 8 U.S.C.

§§ IIOI(a)(l5)(H)(ii)(a) and 1188. Defendant Department of Labor (DOL) has violated FOIA by

failing to produce records requested by plaintiffs, and by denying plaintiffs' requests for fee

waivers and expedited processing.

JURISDICTI0 N

2. This Court has subject matter jurisdiction under 5 U.S.C. § 552(a)(4)(B).

PARTIES 3. Plaintiff United Farm Workers (UFW) is a not-for-profit labor organization that serves agricultural workers and other low-income individuals. It is headquaIiered in California and maintains offices in Florida, Oregon, and Washington State. UFW disseminates information to farmworkers, UFW supporters, collaborating farmworker organizations, and the pUblic. In particular, UFW seeks to inform farmworkers and the public about labor, employment, and immigration issues, including job opportunities for farmworkers and the terms of employment offered by employers who seek certification to hire temporary foreign agricultural workers. UFW disseminates such infonnation through a network of farmworker service organizations including La Campesina radio, La Union del Pueblo Entero (LUPE), the National Farm Worker Service Center, and the Cesar E. Chavez Foundation. UFW posts infonnation at its local offices, distributes information directly through worker representatives in the field, and maintains a website, www.ufw.org, that averages more than a million hits per month and is updated on a daily basis. UFW frequently responds to requests from the media and Congress for information and analysis regarding farm labor and immigration issues. 4. PlaintiffFarmworker Justice (FJ) is a national, not-for-profit, advocacy, litigation, and education organization that serves migrant and seasonal farmworkers. FJ disseminates information about farm labor and immigration issues to farmworkers and their advocates, government representatives, and the pUblic. Many organizations around the country rely on FJ to obtain, analyze, and synthesize information related to farmworker labor and immigration policy. FJ disseminates this information through policy briefs, newsletters, email list-serves, presentations at conferences, and interviews with the media. FJ also posts information on its
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website, www.farmworkerjustice.org.whichaveragesl0.000-15.000visitorspermonth.In addition to its own publications, FJ contributes articles to the pUblications of other organizations, including those whose missions involve immigrant rights, civil rights, and public health. FJ staff is frequently quoted in the media, invited to speak at conferences, and asked to testify before Congress, often regarding guestworker programs and the labor needs of American agriculture. 5. Defendant DOL is a federal government agency. DOL accepts and processes applications from employers seeking certification to hire temporary foreign agricultural workers. DOL has possession of and control over the records plaintiffs seek.
FACTS 6. The H-2A guestworker program, 8 U.S.c. §§ I 101 (a)(l5)(H)(ii)(a) and 1188, permits agricultural employers to import nonimmigrant aliens if the Secretary of Labor certifies that there is a labor shortage and that the wages and working conditions being offered to the H-2A workers will not displace or adversely affect the wages and working conditions of U.S. fannworkers. The Secretary of Labor may grant an employer's petition for H-2A certification only if the employer has actively recruited United States workers and offered them employment that includes specified terms such as certain transportation expenses, decent housing, and workers' compensation insurance. These requirements are intended to protect the jobs, wages, and working conditions of United States workers and to prevent the exploitation of vulnerable guestworkers. 7. If DOL certifies an employer's wage rates and job terms as acceptable, and the employer cannot recruit enough U.S. workers to fill its labor needs, then DOL may issue a labor certification. DOL must determine within 7 days whether or not an application meets the
3

standards for approval and often has as few as 15 days to issue a labor certification, 8 U.S.C. § 1188(c). The so-called "50% rule" at 20 CFR 655.103(e) provides that U.S. workers should be given preferential treatment in hiring until 50% of the work period has passed. The main objective of the 50% rule is to implement the statutory requirement that temporary foreign workers not be employed when qualified U.S. workers are available. See 8 U.S.C. § 1188(a)(I) and (c)(3)(B)(i). 8. After DOL issues a labor certification, the Department of Homeland Security (DHS) allots the employer a number of temporary work visas to bring in foreign laborers. The H-2A employers then arrange for the U.S. consulates in a foreign countly to issue the visas to individual workers recruited by the employers. The First Request 9. On January 24,2007, UFW submitted a FOJA request to DOL's Chicago National Processing Center. The request sought all applications or petitions filed with that office on or after November 1,2006, seeking temporary foreign labor certification for H-2A workers in California. The January 24,2007 letter to the Chicago office included a request for a waiver of all fees associated with the request, noted that UFW is a not-for-profit organization, and explained that the requested information "concerns operations and activities of the government and its disclosure is likely to contribute significantly to the public understanding of those operations or activities." 10. By letter dated June 11,2007, DOL responded to UFW's January 24, 2007 request to the Chicago office. In its letter, DOL stated that it had enclosed the requested records but was "unable to approve [UFW's] request for a fee waiver because it does not meet the criteria at 29
4

CFR 70.41 with regard to contributing significantly to public understanding of the operations or activities of the govermnent." DOL then assessed UFW $115.00 for copying and clerical search time. 11. By letter dated September 5, 2007, UFW appealed DOL's denial ofa fee waiver in connection with UFW's January 24, 2007 request to the Chicago office. In its appeal, UFW explained in detail that the requested records are essential to public understanding of the govemment's operation of the H-2A program. UFW explained that the requested information would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration reform and explained that, because ofUFW's expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW explained, the requested information would be used to meet the general public's need for information about the operation of the H-2A program and related issues. 12. DOL has not responded to UFW's appeal of the fee waiver denial with respect to UFW's January 24, 2007 request to the Chicago office, and UFW has exhausted its administrative remedies under FOrA. The Second Request 13. On January 24,2007, UFW submitted a FOrA request to DOL's Atlanta National Processing Center. The request sought all applications or petitions filed with that office on or after November 1,2006, seeking temporary foreign labor certification for H-2A workers in
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Florida and Georgia. The January 24, 2007 letter to the Atlanta office included a request for a waiver of all fees associated with the request, noted that UFW is a not-for-profit organization, and explained that the requested information "concerns operations and activities of the government and its disclosure is likely to contribute significantly to the public understanding of those operations or activities." 14. DOL responded to UFW's January 24,2007 request to the Atlanta office by letter sent on July 16, 2007, but dated May 19, 2007. In its letter, DOL stated that it had enclosed the requested records. Enclosed with DOL's letter was a CD Rom containing one Excel spreadsheet. DOL's letter further stated that DOL was "unable to approve [UFW's] request for a fee waiver because it does not meet the criteria at 29 CFR 70.41 with regard to contributing significantly to public understanding of the operations or activities of the government." DOL then assessed UFW $65.25. 15. By letter dated October 12,2007, UFW appealed DOL's denial ofa fee waiver in connection with UFW's January 24, 2007 request to the Atlanta office. In its appeal, UFW explained in detail that the requested records are essential to public understanding of the government's operation of the H-2A program. UFW explained that the requested information would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration reform and explained that, because ofUFW's expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW
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explained, the requested information would be used to meet the general public's need for information about the operation of the H-2A program and related issues. 16. DOL has not responded to UFW's appeal of the fee waiver denial with respect to UFW's January 24, 2007 request to the Atlanta office, and UFW has exhausted its administrative remedies under FOrA. The Third and Fourth Requests 17. On or about June 20,2007, UFW submitted two separate ForA requests to DOL's Chicago National Processing Center. The requests sought all applications or petitions filed with that office seeking temporary foreign labor certification for H-2A workers in Arizona and Hawaii that were then in effect or that would commence before December 31, 2007. The requests also sought a fee waiver on the grounds that UFW has no commercial interest in the requested documents and that disclosure of the requested records would contribute significantly to public understanding of the H-2A guestworker program. Specifically, UFW explained that the requested information would be used to inform U.S. workers and their advocates of the existence of pending labor certifications, the terms and conditions of those certifications, and the potential availability of work for U.S. workers, and to determine whether the ce11ifications that have been granted contain terms consistent with local prevailing practices and the mandates of the H-2A program. Further, UFW described the means by which it disseminates information to its members, other organizations who work with farm workers, and the public about job openings for farm workers, terms of employment offered by H-2A program employers, and other labor lSsues.
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18. DOL has not responded to UFW's June 20,2007 FOIA requests to the Chicago office regarding H-2A certifications in Arizona and Hawaii, and UFW has exhausted its administrative remedies under FOlA. The Fifth Request 19. On or about June 20, 2007, UFW submitted a FOlA request to DOL's Atlanta National Processing Center. The request sought all applications or petitions filed with that office seeking temporary foreign labor certification for H-2A workers in Kentucky that were then in effect or that would commence before December 31, 2007. The request also sought a fee waiver on the grounds that UFW has no commercial interest in the requested documents and that disclosure of the requested records would contribute significantly to public understanding of the H-2A guestworker program. Specifically, UFW explained that the requested infOlmation would be used to inform U.S. workers and their advocates of the existence of pending labor certifications, the terms and conditions of those certifications, and the potential availability of work for U.S. workers, and to determine whether the certifications that have been granted contain terms consistent with local prevailing practices and the mandates of the H-2A program. Further, UFW described the means by which it disseminates information to its members, other organizations who work with farm workers, and the public about job openings for farm workers, terms of employment offered by ]-]-2A program employers, and other labor issues. 20. On October 25,2007, a DOL official contacted UFW by telephone, informing UFW that it intended to deny its June 20, 2007 fee waiver request to the Atlanta office regarding H-2A certifications in Kentucky and would be assessing an undisclosed amount for search, review, and reproduction costs. Although DOL did not respond in writing to the request, UFW contacted
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DOL by letter of December 6, 2007, and explained in detail that the requested records are essential to public understanding of the government's operation of the H-2A program. UFW explained that the requested infornlation would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration refonn and explained that, because ofUFW's expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW explained, the requested information would be used to meet the general public's need for infonnation about the operation of the H-2A program and related issues. By letter of December 6, 2007, DOL acknowledged receipt of UFW's letter of the same date. The Sixth and Seventh Requests 21. On October 23,2007, UFW and FJ jointly submitted two separate ForA requests to DOL. One request was directed to DOL's Atlanta National Processing Center and sought all applications or petitions filed with that office seeking temporary foreign labor certification for J-l-2A workers in Florida, Louisiana, and Virginia that were then in effect or that would commence before April 30, 2008. The other request was directed to DOL's Chicago National Processing Center and sought all applications or petitions filed with that office seeking temporary foreign labor certification for J-l-2A workers in Hawaii that were then in effect or that would commence before April 30,2008. In both FOIA requests, UFW and FJ sought expedited processing on the basis that UFW and FJ are primarily engaged in disseminating information
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regarding issues of importance to fannworkers, and there is an urgent need to inform fannworkers and the public about DOL's activities under the H-2A guestworker program. In support of their request for expedited processing, UFW and FJ described in detail their activities and the means by which they disseminate information. UFW and FJ also explained that prompt access to the requested records is necessary to address the public's need for information about guestworker programs in connection with the ongoing debate about immigration and agricultural labor reform legislation, and to protect the jobs, wages, and working conditions of U.S. workers while preventing exploitation of vulnerable guestworkers. UFW and FJ also requested a fee waiver because release of the requested records would enhance the public's understanding of DOL's activities under the H-2A program. 22. By letter dated October 30, 2007, DOL responded "solely to the request for expedited processing" in the two October 23, 2007 FOlA requests. DOL denied the requests for expedited processing. DOL stated that it had determined that "[w]hile information dissemination may be an important part of each organization's work, it is not their main activity," and that DOL's existing procedures are "generally sufficient" to meet any need to inform farmworkers or the public about DOL's activities under the H-2A guestworker program. 23. On November 5, 2007, UFW and FJ appealed DOL's denial of their request for expedited processing oftheir October 23, 2007 FOIA requests. UFW and FJ explained that information dissemination plays a large role in many of the two organizations' strategies for promoting farmworkers' interests. UFW and FJ also emphasized the need for expedition in order to allow for the timely dissemination of information about job opportunities to eligible U.S. workers.
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24. DOL has not responded to the November 5, 2007 appeal of the denial of expedited processing, and it has not responded to the request for documents and the request for a fee waiver made in the two October 23, 2007 ForA requests. UFW and FJ have exhausted their administrative remedies under FOIA.
CLAIMS FOR RELIEF 25. Plaintiffs have a statutory right under ForA, 5 US.C. § 552(a)(3), to obtain the records they have requested, and defendant has no legal basis for failing to disclose those records to plaintiffs. Defendant's failure to provide plaintiffs with the records they seek violates ForA, 5 U.S.C. § 552(a)(3). 26. Plaintiffs have a statutory right under ForA, 5 US.C. § 552(a)(6), to expedited processing of their ForA requests because plaintiffs have demonstrated a compelling need to obtain the requested records, and defendant has no legal basis for failing to expedite the processing of plaintiffs' ForA requests. Defendant's failure to expedite the processing of plaintiffs' requests violates ForA, 5 US.C. § 552(a)(6). 27. Plaintiffs have a statutory right under ForA, 5 U.S.c. § 552(a)(4), to a waiver of the fees associated with their FOIA requests because disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of plaintiffs. Defendant's failure to waive the fees associated with plaintiffs' FOIA requests violates ForA, 5 U.S.C. § 552(a)(4). WHEREFORE, plaintiffs request that this Court:
A) Declare that defendant's failure to waive the fees associated with plaintiffs' first, second, third, fourth, sixth, and seventh FOIA requests is unlawful;
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B) Declare that defendant's failure to produce the records sought by plaintiffs' third, fourth, sixth, and seventh ForA requests is unlawful;
C) Declare that defendant's failure to expedite processing of plaintiffs' sixth and seventh ForA requests is unlawful;
D) Order defendant to produce the requested records without delay; E) Order defendant to make the requested records available to plaintiffs at no cost; F) Award plaintiffs their reasonable costs and attorneys' fees under 5 U.S.C.
§ 552(a)(4)(E); and G) Grant all other proper relief.

Dated: December 13,2007

Respectfully submitted,
~~~~.~~~~
Michael T. Kirkpatrick (DC ar #486293) Adina H. Rosenbaum (DC Bar #490928) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588-1000
Bruce Goldstein (DC Bar #446848) Virginia Ruiz (DC Bar #483800) (Application to this court pending) Marni Willenson (IL Bar# 06238365 (Application to this court pending) FARMWORKER JUSTICE 1126 16th Street, NW, Suite 270 Washington, DC 20036 (202) 293-5420
Attorneys for Plaintiffs
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 Case 1:07-cv-02241-HHK Document 20 Filed 07/18/08 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED FARM WORKERS

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and

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FARMWORKER JUSTICE,

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Plaintiffs,

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v.

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DEPARTMENT OF LABOR,

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Defendant.

)

______________________________________ )

C.A. No. 07-2241 (HHK)

PLAINTIFFS’ STATUS REPORT

Plaintiffs submit this status report to inform the Court of developments after the parties filed

their cross motions for summary judgment, and the parties’ plan for resolving the remaining issue

in the case.

1. This action arose from a series of seven requests that plaintiffs United Farm Workers (UFW)

and Farmworker Justice (FJ) made to defendant U.S. Department of Labor (DOL) under the Freedom

of Information Act (FOIA), 5 U.S.C. § 552 et seq. Each of the seven requests sought documents

related to employer applications for certification to hire temporary foreign agricultural workers

through the H-2A guestworker program, 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) & 1188. All seven

requests sought a fee waiver under 5 U.S.C. § 552(a)(4), and the sixth and seventh requests also

sought expedited processing under 5 U.S.C. § 552(a)(6).

2. Plaintiffs filed their original complaint (Doc. 1) on December 13, 2007. At that time,

a) DOL had produced documents responsive to the first and second requests but

had denied the fee waiver requests and billed UFW for the documents, and

Case 1:07-cv-02241-HHK Document 20 Filed 07/18/08 Page 2 of 5
UFW’s administrative appeal with respect to the fee waiver denials was pending; b) DOL had not responded to the third and fourth requests; c) DOL had denied a fee waiver for the fifth request and had produced no responsive documents; and d) DOL had denied expedited processing of the sixth and seventh requests and plaintiffs’ administrative appeal of the denial of expedited processing, but DOL had not responded to the fee waiver request and had not produced any responsive documents. 3. On January 16, 2008, the Court adopted the parties’ proposed briefing schedule and ordered DOL to respond to plaintiffs’ outstanding FOIA requests and administrative appeals by January 31, 2008. On January 31, 2008, DOL denied the administrative appeals of the fee waiver denials for the first, second, and fifth requests, and responded to the third, fourth, sixth, and seventh requests by denying plaintiffs’ fee waiver requests. DOL did not produce any documents responsive to the third, fourth, fifth, sixth, or seventh requests, pending resolution of the fee waiver issue. 4. On February 20, 2008, the Court granted plaintiffs’ motion for leave to deposit funds to the Court’s registry to secure release of the documents responsive to the sixth and seventh requests pending resolution of the fee waiver issue, and ordered DOL to produce the documents. Doc. 9. On February 29, 2008, DOL produced records responsive to plaintiffs’ sixth and seventh requests, but the documents produced in response to the sixth request were incomplete in two respects. First, a significant amount of material had been redacted from the documents responsive to the sixth request, even though DOL never asserted that any of the requested material was exempt from disclosure.
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Case 1:07-cv-02241-HHK Document 20 Filed 07/18/08 Page 3 of 5
Second, DOL did not produce any documents related to H-2A applications in Louisiana, even though the request called for such materials. 5. On March 10, 2008, DOL filed its motion for summary judgment, arguing that plaintiffs were not entitled to a fee waiver. Doc. 12. DOL did not attempt to justify its redactions to the materials produced in response to the sixth request or its failure to produce any documents related to H-2A applications in Louisiana. DOL noted that because it had responded to the sixth and seventh requests, plaintiffs’ request for expedited processing was moot. 6. On April 11, 2008, plaintiffs filed their cross motion for summary judgment (Doc. 13) and opposition to DOL’s motion (Doc. 14), arguing that DOL violated FOIA by failing to waive fees associated with plaintiffs’ seven requests and, with respect to the sixth request, failing to justify its redactions to the documents produced and failing to produce any documents related to Louisiana. Plaintiffs also noted that because DOL had responded to the sixth and seventh requests, the issue of whether plaintiffs were entitled to expedited processing was moot. 7. On April 17, 2008, DOL sent a letter to plaintiffs regarding its production of documents in response to the sixth request. Ex. I (Plick letter of April 17, 2008). In its letter, DOL explained that it had “determined that some of the information was redacted in error” and apologized “for not referencing or explaining the redactions in [its] initial response.” Id. DOL also explained that it had failed to produce any documents related to Louisiana, although it had identified “a substantial amount” of responsive documents. DOL again apologized for its “oversights” and pledged to produce the materials “as expeditiously as possible.” Id. 8. On April 25, 2008, DOL sent a letter to plaintiffs announcing that it had “reviewed the arguments you have made in support of your motion for summary judgment in the pending district
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Case 1:07-cv-02241-HHK Document 20 Filed 07/18/08 Page 4 of 5
court litigation” and had “determined that you have met the requirements for establishing a waiver of fees under 5 U.S.C. § 552(a)(4)(A)(iii) and 29 C.F.R. § 70.41 in all seven of your fee waiver requests associated with this litigation.” Doc. 15-3 (Carlson letter of April 25, 2008). DOL also noted that it was “continuing to reprocess the documents sought in your sixth request for Florida and Virginia H-2A records, which contained improper redactions when initially provided to you[,]” and that it was “also preparing the release of documents from Louisiana, which were not included in the February 29, 2008, production” of materials responsive to the sixth request. Id. DOL stated its intention to produce the documents responsive to the sixth request by May 9, 2008, and the documents responsive to the third, fourth, and fifth requests by May 23, 2008. Finally, DOL informed plaintiffs that they should disregard the requests for fees for documents already produced. Id. 9. Also on April 25, 2008, DOL filed a brief attaching its letter of the same date and observing that DOL had granted plaintiffs’ request for a fee waiver for all seven requests, was reprocessing its response to the sixth request to cure the deficiencies, and was processing the documents responsive to the third, fourth, and fifth requests. Docs. 15 & 16. DOL requested a stay until all responsive documents had been produced and plaintiffs had determined whether they would challenge any of the redactions that DOL expected to make pursuant to FOIA Exemption 6. On April 30, 2008, plaintiffs filed a reply brief agreeing that the case should be stayed. Doc. 17. 10. On May 9, 2008, DOL produced the materials responsive to the sixth request, correcting the improper redactions and including documents for Louisiana that had been omitted from the earlier response. Ex. II (Carlson letter of May 9, 2008). On May 23, 2008, DOL produced the materials responsive to the third, fourth, and fifth requests. Ex. III (Carlson letter of May 23, 2008). On June
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Case 1:07-cv-02241-HHK Document 20 Filed 07/18/08 Page 5 of 5
17, 2008, DOL responded to an eighth FOIA request submitted by plaintiffs but not included in this lawsuit, granting a waiver of fees and enclosing the requested documents. Ex. IV (Carlson letter of June 17, 2008). 11. On June 30, 2008, plaintiffs informed DOL that they are satisfied with the materials produced. Thus, the only issue remaining in this case is plaintiffs’ claim for costs and attorneys’ fees under 5 U.S.C. § 552(a)(4)(E). 12. The parties have agreed to try to settle the attorneys’ fees issue. The parties anticipate that, by August 8, 2008, the parties will either report that the issue has been settled and stipulate to dismissal of the action, or file a joint status report identifying the specific items in dispute and proposing a briefing schedule.
Respectfully submitted,
/s/ Michael T. Kirkpatrick Michael T. Kirkpatrick (DC Bar #486293) Adina H. Rosenbaum (DC Bar #490928) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Bruce Goldstein (DC Bar #446848) Virginia Ruiz (DC Bar #483800) Marni Willenson (Bar # IL0011) FARMWORKER JUSTICE 1126 16th Street, NW, Suite 270 Washington, DC 20036 (202) 293-5420 Attorneys for Plaintiffs
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 Case 1:07-cv-02241-HHK Document 21 Filed 09/05/08 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED I•'ARM WORKERS,

)

)

and

)

)

FARMWORKER JUSTICE,

)

)

Plaintiffs,

)

)

v.

) Civil Action No.: 07-2241 (l-IHK)

)

)

)

UNITED STATES DEPARTMENT

)

OF LABOR,

)

)

________D_e_fe_n_da_n_t. ____________

)
) )

STIPULATION OF SETTLEMENT AND VOLUNTARY DISMISSAL. Plaintiffs, United Farm Workers and Farmworker Justice ("Plaintiffs"), and Defendant, the United States Department of Labor (the "Defendant" or "DOL"), by their undersigned counsel, in the interests of avoiding fmther litigation, and in order to settle Plaintiffs' claims in this Freedom oflnformation Act ("FOIA") request action, hereby stipulate and agree as follows: 1.) Defendant shall pay counsel for Plaintiffs the sum of sixty thousand dollars ($60,000.00), for attorney fees, costs, and expenses. Plaintiffs agree that payment of this sum shall constitute full and final settlement and satisfaction of all claims by Plaintiffs for fees, costs and expenses of every kind in this action, including those that have already been incurred or expended and any which may in the future be incuned or expended in this action, except to the extent that further proceedings are necessary to resolve a claim of non-compliance with the
te1ms of this Stipulation.

Case 1:07-cv-02241-HHK Document 21 Filed 09/05/08 Page 2 of 4

2.) The Defendant's procedures for making this payment to Plaintiffs' counsel shall be initiated within ten days after receipt of the Settlement Agreement signed by the Comt, and shall be accomplished by submitting the necessary documentation and request to the Defendant's relevant components within that time period.
3.) Plaintiffs and Defendant acknowledge and agree that neither by entering into this Stipulation of Settlement or any action taken pursuant or related hereto, nor the Stipulation itself or any of its tenns, shall constitute an admission by Plaintiffs or Defendant as to the merits of any issue of law or fact raised by the pa1ties in this matter.
4.) All matters raised in this action are hereby dismissed with prejudice, except that the Court shall have jurisdiction to resolve a claim of non-compliance with the te1ms of this

Stipulation. 5.) By this Stipulation, Plaintiffs waive, release and abandon any and all claims,
whether assetted or not asserted, against the Defendant, the United States Depa1tment of Labor, and/or its agents, servants or employees, past or present, that arose from any of the seven FOIA requests that formed the basis of Plaintiffs complaint, up to and including the date of this Stipulation. This Stipulation includes all of Plaintiffs' claims for attorney's fees and costs incuJTed in connection with any administrative filings and processes, as well as the district court

litigation. 6.)

The Parties agree that a facsimile of the signatures of the parties and counsel will

be deemed to be the same as the original. 7.) Undersigned counsel represent that they are authorized by their respective clients
to sign this Stipulation of Settlement and Voluntary Dismissal.

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Case 1:07-cv-02241-HHK Document 21 Filed 09/05/08 Page 3 of 4
8.) Each of the respective rights and obligations of the patties contained in this Stipulation shall be deemed independent and may be enforced independently irrespective of any other rights and obligations set forth herein.
9.) The parties understand that this Stipulation contains the entire agreement between Plaintiffs and Defendant; that no promise or inducement has been made except as set fotth herein; and that no representations, oral or otherwise, between Plaintiffs and Defendant, or their respective counsel, not included herein shall be of any force and effect.
I0.) The pmties agree that this Stipulation will not be used as evidence or otherwise in any pending or future civil or administrative action against the United States govemment, except in an action alleging breach of this Agreement.
11.) This Settlement Agreement shall become effective upon the Court's entry of this Agreement and at that time shall be the final expression of the parties' full, final, and complete Settlement Agreement.
12.) Execution of this Stipulation of Settlement by Plaintiffs' counsel and counsel for the Defendant shall constitute a dismissal of this action with prejudice, pursuant to Rule 41 (a)(! )(ii) of the Federal Rules of Civll Procedure.
3

Case 1:07-cv-02241-HHK Document 21 Filed 09/05/08 Page 4 of 4 Respectfully submitted,

Counsel for Plaintiffs

Assistant United States
,D.C. BAR#
Assistant United States Attomey United States Attorney's Office . Civil Division 555 4th Street, N.W.- Room E4212 Washington, D.C. 20530 (202) 514-7139
Counsel for Defendant

SO ORDERED this_ _ day of_

2008.

HENRY H. KENNEDY United States District Judge

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 Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED FARM WORKERS

)

)

and

)

)

FARMWORKER JUSTICE,

)

)

Plaintiffs,

)

)

v.

)

)

DEPARTMENT OF LABOR,

)

)

Defendant.

)

______________________________________ )

C.A. No.: 07-2241 (HHK)

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. This action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, arises from a

series of FOIA requests seeking documents related to employer applications for certification to hire

temporary foreign agricultural workers through the H-2A guestworker program, 8 U.S.C.

§§ 1101(a)(15)(H)(ii)(a) and 1188. Defendant Department of Labor (DOL) has violated FOIA by

failing to produce records requested by plaintiffs, and by denying plaintiffs’ requests for fee waivers

and expedited processing.

JURISDICTION

2. This Court has subject matter jurisdiction under 5 U.S.C. § 552(a)(4)(B).

PARTIES

3. Plaintiff United Farm Workers (UFW) is a not-for-profit labor organization that serves

agricultural workers and other low-income individuals. It is headquartered in California and

maintains offices in Florida, Oregon, and Washington State. UFW disseminates information to

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 2 of 13
farmworkers, UFW supporters, collaborating farmworker organizations, and the public. In particular, UFW seeks to inform farmworkers and the public about labor, employment, and immigration issues, including job opportunities for farmworkers and the terms of employment offered by employers who seek certification to hire temporary foreign agricultural workers. UFW disseminates such information through a network of farmworker service organizations including La Campesina radio, La Union del Pueblo Entero (LUPE), the National Farm Worker Service Center, and the Cesar E. Chavez Foundation. UFW posts information at its local offices, distributes information directly through worker representatives in the field, and maintains a website, www.ufw.org, that averages more than a million hits per month and is updated on a daily basis. UFW frequently responds to requests from the media and Congress for information and analysis regarding farm labor and immigration issues. 4. Plaintiff Farmworker Justice (FJ) is a national, not-for-profit, advocacy, litigation, and education organization that serves migrant and seasonal farmworkers. FJ disseminates information about farm labor and immigration issues to farmworkers and their advocates, government representatives, and the public. Many organizations around the country rely on FJ to obtain, analyze, and synthesize information related to farmworker labor and immigration policy. FJ disseminates this information through policy briefs, newsletters, email list-serves, presentations at conferences, and interviews with the media. FJ also posts information on its website, www.farmworkerjustice.org, which averages 10,000-15,000 visitors per month. In addition to its own publications, FJ contributes articles to the publications of other organizations, including those whose missions involve immigrant rights, civil rights, and public health. FJ staff is frequently quoted in the media, invited to speak at
2

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 3 of 13
conferences, and asked to testify before Congress, often regarding guestworker programs and the labor needs of American agriculture. 5. Defendant DOL is a federal government agency. DOL accepts and processes applications from employers seeking certification to hire temporary foreign agricultural workers. DOL has possession of and control over the records plaintiffs seek.
FACTS 6. The H-2A guestworker program, 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1188, permits agricultural employers to import nonimmigrant aliens if the Secretary of Labor certifies that there is a labor shortage and that the wages and working conditions being offered to the H-2A workers will not displace or adversely affect the wages and working conditions of U.S. farmworkers. The Secretary of Labor may grant an employer’s petition for H-2A certification only if the employer has actively recruited United States workers and offered them employment that includes specified terms such as certain transportation expenses, decent housing, and workers’ compensation insurance. These requirements are intended to protect the jobs, wages, and working conditions of United States workers and to prevent the exploitation of vulnerable guestworkers. 7. If DOL certifies an employer’s wage rates and job terms as acceptable, and the employer cannot recruit enough U.S. workers to fill its labor needs, then DOL may issue a labor certification. DOL must determine within 7 days whether or not an application meets the standards for approval and often has as few as 15 days to issue a labor certification, 8 U.S.C. § 1188(c). The so-called “50% rule” at 20 CFR 655.103(e) provides that U.S. workers should be given preferential treatment in hiring until 50% of the work period has passed. The main objective of the 50% rule is to
3

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 4 of 13
implement the statutory requirement that temporary foreign workers not be employed when qualified U.S. workers are available. See 8 U.S.C. § 1188(a)(1) and (c)(3)(B)(i). 8. After DOL issues a labor certification, the Department of Homeland Security (DHS) allots the employer a number of temporary work visas to bring in foreign laborers. The H-2A employers then arrange for the U.S. consulates in a foreign country to issue the visas to individual workers recruited by the employers. The First Request 9. On January 24, 2007, UFW submitted a FOIA request to DOL’s Chicago National Processing Center. The request sought all applications or petitions filed with that office on or after November 1, 2006, seeking temporary foreign labor certification for H-2A workers in California. The January 24, 2007 letter to the Chicago office included a request for a waiver of all fees associated with the request, noted that UFW is a not-for-profit organization, and explained that the requested information “concerns operations and activities of the government and its disclosure is likely to contribute significantly to the public understanding of those operations or activities.” 10. By letter dated June 11, 2007, DOL responded to UFW’s January 24, 2007 request to the Chicago office. In its letter, DOL stated that it had enclosed the requested records but was “unable to approve [UFW’s] request for a fee waiver because it does not meet the criteria at 29 CFR 70.41 with regard to contributing significantly to public understanding of the operations or activities of the government.” DOL then assessed UFW $115.00 for copying and clerical search time. 11. By letter dated September 5, 2007, UFW appealed DOL’s denial of a fee waiver in connection with UFW’s January 24, 2007 request to the Chicago office. In its appeal, UFW explained in detail that the requested records are essential to public understanding of the
4

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 5 of 13
government’s operation of the H-2A program. UFW explained that the requested information would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration reform and explained that, because of UFW’s expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW explained, the requested information would be used to meet the general public’s need for information about the operation of the H-2A program and related issues. 12. DOL has not responded to UFW’s appeal of the fee waiver denial with respect to UFW’s January 24, 2007 request to the Chicago office, and UFW has exhausted its administrative remedies under FOIA. The Second Request 13. On January 24, 2007, UFW submitted a FOIA request to DOL’s Atlanta National Processing Center. The request sought all applications or petitions filed with that office on or after November 1, 2006, seeking temporary foreign labor certification for H-2A workers in Florida and Georgia. The January 24, 2007 letter to the Atlanta office included a request for a waiver of all fees associated with the request, noted that UFW is a not-for-profit organization, and explained that the requested information “concerns operations and activities of the government and its disclosure is likely to contribute significantly to the public understanding of those operations or activities.” 14. DOL responded to UFW’s January 24, 2007 request to the Atlanta office by letter sent on July 16, 2007, but dated May 19, 2007. In its letter, DOL stated that it had enclosed the requested
5

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 6 of 13
records. Enclosed with DOL’s letter was a CD Rom containing one Excel spreadsheet. DOL’s letter further stated that DOL was “unable to approve [UFW’s] request for a fee waiver because it does not meet the criteria at 29 CFR 70.41 with regard to contributing significantly to public understanding of the operations or activities of the government.” DOL then assessed UFW $65.25. 15. By letter dated October 12, 2007, UFW appealed DOL’s denial of a fee waiver in connection with UFW’s January 24, 2007 request to the Atlanta office. In its appeal, UFW explained in detail that the requested records are essential to public understanding of the government’s operation of the H-2A program. UFW explained that the requested information would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration reform and explained that, because of UFW’s expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW explained, the requested information would be used to meet the general public’s need for information about the operation of the H-2A program and related issues. 16. DOL has not responded to UFW’s appeal of the fee waiver denial with respect to UFW’s January 24, 2007 request to the Atlanta office, and UFW has exhausted its administrative remedies under FOIA. The Third and Fourth Requests 17. On or about June 20, 2007, UFW submitted two separate FOIA requests to DOL’s Chicago National Processing Center. The requests sought all applications or petitions filed with that office
6

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 7 of 13
seeking temporary foreign labor certification for H-2A workers in Arizona and Hawaii that were then in effect or that would commence before December 31, 2007. The requests also sought a fee waiver on the grounds that UFW has no commercial interest in the requested documents and that disclosure of the requested records would contribute significantly to public understanding of the H-2A guestworker program. Specifically, UFW explained that the requested information would be used to inform U.S. workers and their advocates of the existence of pending labor certifications, the terms and conditions of those certifications, and the potential availability of work for U.S. workers, and to determine whether the certifications that have been granted contain terms consistent with local prevailing practices and the mandates of the H-2A program. Further, UFW described the means by which it disseminates information to its members, other organizations who work with farm workers, and the public about job openings for farm workers, terms of employment offered by H-2A program employers, and other labor issues. 18. At the time this case was filed, DOL had not responded to UFW’s June 20, 2007 FOIA requests to the Chicago office regarding H-2A certifications in Arizona and Hawaii. On January 16, 2008, the Court adopted the parties’ proposed schedule and ordered DOL to respond to plaintiffs’ outstanding FOIA requests on or before January 31, 2008. 19. On January 31, 2008, DOL responded to UFW’s June 20, 2007 FOIA requests. DOL acknowledged that it had identified 1,400 pages of material responsive to the request for H-2A applications in Arizona, and 550 pages of material responsive to the request for H-2A applications in Hawaii, but DOL denied the requests for a fee waiver, and stated that it would produce the responsive material only if UFW provided an assurance that it would pay reproduction and search costs of $310.00 for the Arizona documents and $122.50 for the Hawaii documents.
7

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 8 of 13
20. UFW has exhausted its administrative remedies under FOIA. The Fifth Request 21. On or about June 20, 2007, UFW submitted a FOIA request to DOL’s Atlanta National Processing Center. The request sought all applications or petitions filed with that office seeking temporary foreign labor certification for H-2A workers in Kentucky that were then in effect or that would commence before December 31, 2007. The request also sought a fee waiver on the grounds that UFW has no commercial interest in the requested documents and that disclosure of the requested records would contribute significantly to public understanding of the H-2A guestworker program. Specifically, UFW explained that the requested information would be used to inform U.S. workers and their advocates of the existence of pending labor certifications, the terms and conditions of those certifications, and the potential availability of work for U.S. workers, and to determine whether the certifications that have been granted contain terms consistent with local prevailing practices and the mandates of the H-2A program. Further, UFW described the means by which it disseminates information to its members, other organizations who work with farm workers, and the public about job openings for farm workers, terms of employment offered by H-2A program employers, and other labor issues. 22. On October 25, 2007, a DOL official contacted UFW by telephone, informing UFW that it intended to deny its June 20, 2007 fee waiver request to the Atlanta office regarding H-2A certifications in Kentucky and would be assessing an undisclosed amount for search, review, and reproduction costs. Although DOL had not responded in writing to UFW’s June 20, 2007 request to the Atlanta office, by letter of December 6, 2007, UFW appealed the DOL’s denial of a fee waiver. In its appeal, UFW explained in detail that the requested records are essential to public
8

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 9 of 13
understanding of the government’s operation of the H-2A program. UFW explained that the requested information would be used to ensure that both U.S. and foreign workers are provided the opportunities and protections guaranteed by the H-2A statute and regulations, and it explained the methods by which UFW disseminates information to farmworkers. UFW also noted the current interest of the general public in issues concerning guestworker programs and immigration reform and explained that, because of UFW’s expertise and involvement in those issues, broad segments of the public rely on UFW for related information, analysis, and recommendations. Thus, UFW explained, the requested information would be used to meet the general public’s need for information about the operation of the H-2A program and related issues. 23. By letter of December 6, 2007, DOL’s Appeals Unit acknowledged receipt of UFW’s appeal of the same date, assigned it Appeal Reference No. 080068, and stated that DOL was processing UFW’s appeal. By letter of December 11, 2007, five days after DOL acknowledged receipt of UFW’s appeal of the denial of a fee waiver, DOL sent a letter to UFW denying a fee waiver in connection with UFW’s June 20, 2007 request to the Atlanta office. In the December 11 letter, DOL stated that it would produce 480 pages of responsive material only if UFW provided an assurance that it would pay $57.00 in reproduction costs. 24. By letter of December 22, 2007, UFW responded to DOL’s December 11 denial of a fee waiver. UFW explained that DOL had communicated the denial to UFW by telephone on October 25, 2007, UFW had already appealed the denial, and DOL’s appeals unit had acknowledged receipt of the appeal. UFW also stated that, to the extent necessary to preserve UFW’s right to challenge the denial of a fee waiver, UFW again appealed and incorporated by reference UFW’s appeal letter of December 6, 2007. Further, UFW requested that DOL immediately send the 480 pages of
9

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 10 of 13
material identified by DOL as responsive to UFW’s request, and, without waiving its appeal of the denial of a fee waiver, UFW assured DOL that UFW would pay the $57.00 assessed for reproduction costs, if DOL’s decision to deny the fee waiver is upheld. 25. DOL has not issued a decision on UFW’s appeal of the fee waiver denial with respect to UFW’s June 20, 2007 request to the Atlanta office, and DOL has not produced the 480 pages of material DOL has identified as responsive to the request. UFW has exhausted its administrative remedies under FOIA. The Sixth and Seventh Requests 26. On October 23, 2007, UFW and FJ jointly submitted two separate FOIA requests to DOL. One request was directed to DOL’s Atlanta National Processing Center and sought all applications or petitions filed with that office seeking temporary foreign labor certification for H-2A workers in Florida, Louisiana, and Virginia that were then in effect or that would commence before April 30, 2008. The other request was directed to DOL’s Chicago National Processing Center and sought all applications or petitions filed with that office seeking temporary foreign labor certification for H-2A workers in Hawaii that were then in effect or that would commence before April 30, 2008. In both FOIA requests, UFW and FJ sought expedited processing on the basis that UFW and FJ are primarily engaged in disseminating information regarding issues of importance to farmworkers, and there is an urgent need to inform farmworkers and the public about DOL’s activities under the H-2A guestworker program. In support of their request for expedited processing, UFW and FJ described in detail their activities and the means by which they disseminate information. UFW and FJ also explained that prompt access to the requested records is necessary to address the public’s need for information about guestworker programs in connection with the ongoing debate about immigration
10

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 11 of 13
and agricultural labor reform legislation, and to protect the jobs, wages, and working conditions of U.S. workers while preventing exploitation of vulnerable guestworkers. UFW and FJ also requested a fee waiver because release of the requested records would enhance the public’s understanding of DOL’s activities under the H-2A program. 27. By letter dated October 30, 2007, DOL responded “solely to the request for expedited processing” in the two October 23, 2007 FOIA requests. DOL denied the requests for expedited processing. DOL stated that it had determined that “[w]hile information dissemination may be an important part of each organization’s work, it is not their main activity,” and that DOL’s existing procedures are “generally sufficient” to meet any need to inform farmworkers or the public about DOL’s activities under the H-2A guestworker program. 28. On November 5, 2007, UFW and FJ appealed DOL’s denial of their request for expedited processing of their October 23, 2007 FOIA requests. UFW and FJ explained that information dissemination plays a large role in many of the two organizations’ strategies for promoting farmworkers’ interests. UFW and FJ also emphasized the need for expedition in order to allow for the timely dissemination of information about job opportunities to eligible U.S. workers. By letter of December 10, 2007, DOL responded to the November 5, 2007 appeal, and affirmed DOL’s decision to deny expedited processing. 29. At the time this case was filed, DOL had not responded to the request for documents and the request for a fee waiver made in the two October 23, 2007 FOIA requests. On January 16, 2008, the Court adopted the parties’ proposed schedule and ordered DOL to respond to plaintiffs’ outstanding FOIA requests on or before January 31, 2008.
11

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 12 of 13
30. On January 31, 2008, DOL responded to the two October 23, 2007 FOIA requests. DOL acknowledged that it had identified 3,890 pages of material responsive to the requests, but DOL denied the request for a fee waiver, and stated that it would produce the responsive material only if UFW and FJ provided an assurance that they would pay $723.50 in reproduction costs. 31. UFW and FJ have exhausted their administrative remedies under FOIA.
CLAIMS FOR RELIEF 32. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(3), to obtain the records they have requested, and defendant has no legal basis for failing to disclose those records to plaintiffs. Defendant’s failure to provide plaintiffs with the records they seek violates FOIA, 5 U.S.C. § 552(a)(3). 33. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(6), to expedited processing of their FOIA requests because plaintiffs have demonstrated a compelling need to obtain the requested records, and defendant has no legal basis for failing to expedite the processing of plaintiffs’ FOIA requests. Defendant’s failure to expedite the processing of plaintiffs’ requests violates FOIA, 5 U.S.C. § 552(a)(6). 34. Plaintiffs have a statutory right under FOIA, 5 U.S.C. § 552(a)(4), to a waiver of the fees associated with their FOIA requests because disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of plaintiffs. Defendant’s failure to waive the fees associated with plaintiffs’ FOIA requests violates FOIA, 5 U.S.C. § 552(a)(4).
12

Case 1:07-cv-02241-HHK Document 7 Filed 02/08/08 Page 13 of 13

WHEREFORE, plaintiffs request that this Court:

A) Declare that defendant’s failure to waive the fees associated with plaintiffs’ first,

second, third, fourth, fifth, sixth, and seventh FOIA requests is unlawful;

B) Declare that defendant’s failure to produce the records sought by plaintiffs’ third,

fourth, fifth, sixth, and seventh FOIA requests is unlawful;

C) Declare that defendant’s failure to expedite processing of plaintiffs’ sixth and seventh

FOIA requests is unlawful;

D) Order defendant to produce the requested records without delay;

E) Order defendant to make the requested records available to plaintiffs at no cost;

F) Award plaintiffs their reasonable costs and attorneys’ fees under 5 U.S.C.

§ 552(a)(4)(E); and

G) Grant all other proper relief.

Respectfully submitted,

/s/ Michael T. Kirkpatrick Michael T. Kirkpatrick (DC Bar #486293) Adina H. Rosenbaum (DC Bar #490928) PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588-1000

Bruce Goldstein (DC Bar #446848) Virginia Ruiz (DC Bar #483800) Marni Willenson (Bar# IL0011) FARMWORKER JUSTICE 1126 16th Street, NW, Suite 270 Washington, DC 20036 (202) 293-5420

Dated: February 8, 2008

Attorneys for Plaintiffs

13

 
 FOR IMMEDIATE RELEASE December 13, 2007

Contact: Barb Howe, Farmworker Justice 202.293.5420, bhowe@farmworkerjustice.org Paco Fabian, Fenton Communications, 202-822-5200, pfabian@fenton.com

GROUPS SUE DEPARTMENT OF LABOR OVER FOREIGN GUESTWORKER DOCUMENTS

DOL fails to release information to farm worker advocates about employers who hire foreign guestworkers before U.S. workers

(Washington, D.C.) The nation’s leading farmworker advocacy organizations today filed a lawsuit against the U.S. Department of Labor (DOL) under the Freedom of Information Act for its failure to release information about employers who have used the H-2A visa program to hire foreign guestworkers instead of U.S. workers. The lawsuit, by United Farm Workers and Farmworker Justice, was filed in the U.S. District Court for the District of Columbia. The groups are represented by attorneys with Public Citizen and Farmworker Justice.

“U.S. employers must publicize jobs to U.S. workers before they are allowed to hire foreign workers,” said Erik Nicholson, international director of the United Farm Workers’ guestworker program. “The Department of Labor has a legal obligation to issue public information about these hiring practices so that U.S. workers can apply for the jobs in time and so that advocates can protect farmworkers.”

The H-2A program permits agricultural employers to import foreign guestworkers only if they can prove that there are not sufficient workers for the job within the U.S. To prevent undermining U.S. farmworkers’ standards, the employers have to prove they are offering acceptable wages and working conditions. Farmworker advocates suspect many employers have violated this practice and that DOL documents would provide evidence. The groups want copies of applications to ensure employers and the DOL are complying with laws that regulate wages, benefits and working conditions within the United States.

“The Department of Labor has been secretly planning a major revision of the H-2A program to lower wage rates and enable employers to hire guestworkers instead of U.S. workers,” said Bruce Goldstein, executive director of Farmworker Justice. “The DOL must produce the records of employers who may have already been illegally hiring foreign workers. We hope this lawsuit pressures the Department of Labor to comply with the law and protect U.S. workers’ rights,” he concluded.

The United Farm Workers and Farmworker Justice have been requesting the information from the DOL for nearly a year. The DOL has either not provided the information or has released it months after the request – after it is too late for U.S. workers to apply for the jobs and after it is too late to oppose DOL approval of the application. The lawsuit seeks the release of public information in a timely manner and also asks the court to overturn the Department of Labor’s unlawful decision to charge fees for disclosing the public information.

###

For more information, contact Barb Howe, Communications Coordinator, Farmworker Justice. bhowe@farmworkerjustice.org, 202.293.5420 or Paco Fabian, Fenton Communications, 202822-5200, pfabian@fenton.com.

 
 Case: 1:07-cv-2241 As of: 01/17/2013 01:08 PM EST 1 of 4
CLOSED,TYPE−I
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:07−cv−02241−HHK

UNITED FARM WORKERS et al v. DEPARTMENT OF LABOR Assigned to: Judge Henry H. Kennedy Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 12/13/2007 Date Terminated: 09/11/2008 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: Federal Question

UNITED FARM WORKERS

represented by Marni Willenson FARMWORKER JUSTICE 1126 16th St, NW Suite 270 Washington, dc 20036 202−640−1918 Fax: 312−261−9977 Email: marni.willenson@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Kirkpatrick PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009−1001 (202) 588−1000 Fax: (202) 588−7795 Email: mkirkpatrick@citizen.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FARMWORKER JUSTICE

represented by Marni Willenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael T. Kirkpatrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia E. Ruiz FARMWORKER JUSTICE 1126 − 16th Street, NW Suite 270 Washington, DC 20036 (202) 293−5420 Email: vruiz@farmworkerjustice.org ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF LABOR

represented by Michelle Nicole Johnson UNITED STATES ATTORNEY'S OFFICE 555 Fourth Street, NW

Case: 1:07-cv-2241 As of: 01/17/2013 01:08 PM EST 2 of 4
Room E−4212 Washington, DC 20530 (202) 514−7139 Fax: (202) 514−7880 Email: michelle.johnson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/13/2007 12/13/2007 12/13/2007 01/14/2008 01/14/2008 01/15/2008 01/16/2008
01/16/2008
01/17/2008 02/08/2008 02/15/2008 02/22/2008 02/27/2008

# Docket Text
1 COMPLAINT against DEPARTMENT OF LABOR ( Filing fee $ 350, receipt number 4616008914) filed by UNITED FARM WORKERS, FARMWORKER JUSTICE. (Attachments: # 1 Civil Cover Sheet)(lc, ) (Entered: 12/14/2007)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by UNITED FARM WORKERS, FARMWORKER JUSTICE (lc, ) (Entered: 12/14/2007)
SUMMONS (3) Issued as to DEPARTMENT OF LABOR, U.S. Attorney and U.S. Attorney General (lc, ) (Entered: 12/14/2007)
3 NOTICE of Appearance by Michelle Nicole Johnson on behalf of DEPARTMENT OF LABOR (Johnson, Michelle) (Entered: 01/14/2008)
4 Joint MOTION For the Entry of a Briefing Schedule by DEPARTMENT OF LABOR (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 01/14/2008)
5 NOTICE of Appearance by Virginia E. Ruiz on behalf of FARMWORKER JUSTICE (Ruiz, Virginia) (Entered: 01/15/2008)
MINUTE ORDER granting 4 the Parties' Joint Motion for the Entry of a Briefing Schedule and adopting the parties' proposed schedule. Accordingly, defendant shall respond to plaintiffs' outstanding FOIA requests on or before January 31, 2008; plaintiffs may file an amended complaint on or before February 8, 2008; defendant shall file a summary judgment motion on or before March 3, 2008; plaintiffs shall file their cross−motion and opposition to defendant's summary judgment motion on or before April 4, 2008; defendant shall file its reply and opposition to plaintiffs' summary judgment motion on or before April 18, 2008; plaintiff shall file their reply in support of their cross−motion on or before May 2, 2008. Signed by Judge Henry H. Kennedy, Jr. on January 16, 2008. (NP) (Entered: 01/16/2008)
Set/Reset Deadlines: Plaintiffs may file an amended complaint on or before 2/8/2008; defendant's summary judgment motion due by 3/3/2008; plaintiffs' cross motion and response to motion for summary judgment due by 4/4/2008; defendant's response to plaintiffs' cross motion and reply in support of its motion for summary judgment due by 4/18/2008; plaintiffs' reply in support of their cross−motion due by 5/2/2008. (NP) (Entered: 01/16/2008)
6 NOTICE of Appearance by Marni Willenson on behalf of UNITED FARM WORKERS, FARMWORKER JUSTICE (Willenson, Marni) (Entered: 01/17/2008)
7 AMENDED COMPLAINT against DEPARTMENT OF LABOR filed by UNITED FARM WORKERS, FARMWORKER JUSTICE.(nmw, ) (Entered: 02/12/2008)
8 Unopposed MOTION to Deposit Funds by UNITED FARM WORKERS, FARMWORKER JUSTICE (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 02/15/2008)
9 ORDER granting the plaintiff's 8 motion to deposit $810.65 to the Court's registry. (See document for further details) Signed by Judge Henry H. Kennedy on 2/20/08. (tj ) (Entered: 02/22/2008)
10 DEPOSIT of Sequestered Funds by Plaintiffs in the amount of $ $810.65, Receipt Number 4616010576. (lc, ) (Entered: 02/28/2008)

Case: 1:07-cv-2241 As of: 01/17/2013 01:08 PM EST 3 of 4

02/29/2008 02/29/2008
02/29/2008 02/29/2008 03/10/2008
04/11/2008
04/11/2008 04/25/2008 04/25/2008 04/30/2008 05/01/2008 05/08/2008 07/18/2008 09/05/2008

11 Consent MOTION to Amend the Briefing Schedule by DEPARTMENT OF LABOR (Attachments: # 1 Text of Proposed Order)(Johnson, Michelle) (Entered: 02/29/2008)
MINUTE ORDER granting 11 Defendant's Consent Motion to Amend the Briefing Schedule. Accordingly, defendant's dispositive motion is due on or before March 10, 2008; plaintiff's opposition and cross−motion are due on or before April 11, 2008; defendant's reply and opposition to plaintiff's cross−motion are due on or before April 25, 2008; and plaintiff's reply in support of its cross−motion is due on or before May 9, 2008. Signed by Judge Henry H. Kennedy, Jr. on February 29, 2008. (NP) (Entered: 02/29/2008)
Dispositive Motions due by 3/10/2008. Cross Motions due by 4/11/2008. Response to Dispositive Motions due by 4/11/2008. Response to Cross Motions due by 4/25/2008. Reply to Dispositive Motions due by 4/25/2008. Reply to Cross Motions due by 5/9/2008. Signed by Judge Henry H. Kennedy, Jr. on February 29, 2008. (NP) (Entered: 02/29/2008)
Deadlines terminated. Signed by Judge Henry H. Kennedy, Jr. on February 29, 2008. (NP) (Entered: 02/29/2008)
12 MOTION to Dismiss for Lack of Jurisdiction, MOTION for Summary Judgment by DEPARTMENT OF LABOR (Attachments: # 1 Declaration of William L. Carlson (with exhibits), # 2 Exhibit A−D, # 3 Exhibit E to H, # 4 Exhibit I &J, # 5 Exhibit K &L, # 6 Exhibit M, # 7 Exhibit N to R, # 8 Exhibit S to X, # 9 Exhibit Y, # 10 Statement of Facts, # 11 Text of Proposed Order)(Johnson, Michelle) (Entered: 03/10/2008)
13 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment by UNITED FARM WORKERS, FARMWORKER JUSTICE (Attachments: # 1 Statement of Facts, # 2 Exhibit AA − FF, # 3 Exhibit GG − HH, # 4 Declaration of Virginia Ruiz, # 5 Exhibit One to Ruiz Declaration, # 6 Exhibit Two to Ruiz Declaration, # 7 Exhibit Three to Ruiz Declaration, # 8 Exhibit Four to Ruiz Declaration, # 9 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 04/11/2008)
14 Memorandum in opposition to re 12 MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Response in Opposition filed by UNITED FARM WORKERS, FARMWORKER JUSTICE. (Kirkpatrick, Michael) (Entered: 04/11/2008)
15 Memorandum in opposition to re 13 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by DEPARTMENT OF LABOR. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Johnson, Michelle) (Entered: 04/25/2008)
16 REPLY to opposition to motion re 12 MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment filed by DEPARTMENT OF LABOR. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1)(Johnson, Michelle) (Entered: 04/25/2008)
17 REPLY to opposition to motion re 13 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment filed by UNITED FARM WORKERS, FARMWORKER JUSTICE. (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 04/30/2008)
18 Unopposed MOTION for Release of Funds by UNITED FARM WORKERS, FARMWORKER JUSTICE (Attachments: # 1 Text of Proposed Order)(Kirkpatrick, Michael) (Entered: 05/01/2008)
19 ORDER granting leave for plaintiffs to withdraw funds 18 from the court's registry. (Signed by Judge Henry H. Kennedy on 5/2/08 (tj ) (Entered: 05/08/2008)
20 STATUS REPORT by UNITED FARM WORKERS, FARMWORKER JUSTICE. (Attachments: # 1 Exhibit I to IV)(Kirkpatrick, Michael) (Entered: 07/18/2008)
21 STIPULATION of Settlement and Voluntary Dismissal by DEPARTMENT OF LABOR. (Johnson, Michelle) (Entered: 09/05/2008)

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09/11/2008

22 ORDER approving the stipulation of settlement and voluntary dismissal. (Signed by Judge Henry H. Kennedy on 9/8/08). (tj ) (Entered: 09/11/2008)