UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GREENSBORO DIVISION 09 cv 411
NORTH CAROLINA GROWERS' ASSOCIATION, INC., P.O. Box 417, Vass, NC 28394, and
NATIONAL CHRISTMAS TREE ASSOCIATION, 16020 Swingley Ridge Road, Suite 300 Chesterfield, MO 63017, and
FLORIDA FRUIT & VEGETABLE ASSOCIATION, INC., 800 Trafalgar Ct., Suite 200 Maitland, FL 32794-8153, and
VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., P.O. Box 857, South Boston, VA 24592, and
SNAKE RIVER FARMERS ASSOCIATION, P.O. Box 807 Heyburn, ID 83336, and
NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, 1112 16th St. NW, Suite 920 Washington, DC 20036, and
NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, P.O. Box 1937 Boone, NC 28607, and
NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, P.O. Box 8333 Wilson, NC 27893-1333, and
FLORIDA CITRUS MUTUAL, P.O. Box 89 Lakeland, FL 33802, and
NORTH CAROLINA AGRIBUSINESS COUNCIL, INC.,
712629.1
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-------~~~---
2500 Regency Parkway Cary, North Carolina 27518, and
MAINE FOREST PRODUCTS COUNCIL, 535 Civic Center Drive, Augusta, ME 04330, and
ALTA CITRUS, LLC 1110 W. Bell St. Avon Park, FL 33826, and
EVERGLADES HARVESTING & HAULING, INC., 1331 Commerce Drive LaBelle,FL 33935,and
DESOTO FRUIT AND HARVESTING, INC., P.O. Box 3106 Arcadia, FL 34265, and
FOREST RESOURCES ASSOCIATION, 600 Jefferson Plaza, Suite 350 Rockville, MD 20852, and
TITAN PEACH FARMS, INC., No.5, R. W. DuBose Road Ridge Spring, SC 29129, and
H-2A USA, INC., 5425 Elvis Presley Blvd., Suite B Memphis, TN 38116, and
OVERLOOK HARVESTING COMPANY, LLC P.O. Box 9516 Winter Haven, FL 33883,
Plaintiffs,
v.
HILDA 1. SOLIS, in her official capacity as United States Secretary of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, and
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THE UNITED STATES DEPARTMENT OF LABOR, 200 Constitution Avenue, NW, Washington, DC 20210, and JANET NAPOLITANO, in her official capacity as United States Secretary of Homeland Security, Washington, DC 20528, and THE UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Washington, DC 20528,
Defendants.
COMPLAINT
Plaintiffs the North Carolina Growers' Association, Inc., the National Christmas Tree Association, the Florida Fruit & Vegetable Association, Inc., the Virginia Agricultural Growers Association, Inc., the Snake River Farmers Association, the National Council of Agricultural Employers, the North Carolina Christmas Tree Association, Inc., the North Carolina Pickle Producers Association, Inc., Florida Citrus Mutual, the North Carolina Agribusiness Council, Inc., the Maine Forest Products Council, ALTA Citrus, LLC, Everglades Harvesting & Hauling, Inc., DeSoto Fruit & Harvesting, Inc., Forest Resources Association, Titan Peach FanTIs, Inc., H-2A USA, Inc., and Overlook Harvesting Company, LLC, hereby bring this Complaint against Defendants Hilda L. Solis, in her official capacity as Secretary of the U.S. Department of Labor, the U.s. Department of Labor, Janet Napolitano, in her official capacity as Secretary of the U.S. Department of Homeland Security, and the U.S. Department of Homeland Security, alleging as follows:
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INTRODUCTION I. The Plaintiffs bring this action for declaratory and injunctive relief related to Temporary Employment ofH-2A Aliens in the United States. 74 Fed. Reg. 25972 (May 29,2009) ("the Solis Final Rule"); Temporary Employment ofH-2A Aliens in the United States; Proposed Rule, 74 Fed. Reg. 11408 (March 17, 2009) ("the Solis NPRM"); and Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H-2A and H-2B Workers, 74 Fed. Reg. 13261 (March 26, 2009) ("the Withdrawal"). The Solis Final Rule entirely rewrites a valid H-2A rule promulgated by the DOL under former Secretary Elaine L. Chao, Temporary Agricultural Employment of H-2A Aliens in the United States: Modernizing the Certification Process and Enforcement Final Rule, 73 Fed. Reg. 77110 (December 18, 2008) ("the Chao Final Rule"). The Chao Final Rule, which took effect January 17, 2009, in turn replaced an H2A rule, the major provisions of which were promulgated by the DOL in 1987 ("the 1987 Rule"). The Plaintiffs contend that the Solis Final Rule and the Withdrawal should be enjoined and declared to be in violation of the Administrative Procedure Act, 5 U.S.C. §701, et seq. ("APA"). In the alternative to enjoining the Withdrawal, the Plaintiffs seek a declaratory judgment that contracts and understandings entered into between farmers and H-2A workers and approved by the DOL between January 17,2009, and March 26, 2009, are valid and in compliance with the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and all other applicable laws and may be complied with as written.
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JURISDICTION AND VENUE 2. This Court has federal question jurisdiction pursuant to 28 U.S.C. §1331, as this action involves judicial review of agency action pursuant to the APA, 5 U.S.c. §§553 and 701, et seq. 3. Venue is proper in the Middle District of North Carolina because Plaintiff NCGA is a citizen of North Carolina and its principal place of business is located in the Middle District of North Carolina. 28 U.S.C. §1391(e)(3).
PARTIES 4. Plaintiff the North Carolina Growers' Association, Inc. ("NCGA") IS a non-profit growers' association based in Vass, Moore County, North Carolina. NCGA is the nation's largest provider of H-2A workers, providing approximately 7,500 workers per year to approximately 700 farmers. NCGA is a North Carolina corporation. 5. Plaintiff National Christmas Tree Association ("NCTA") is a non-profit national trade association representing the Christmas tree industry. It represents 1,100 active members, 29 state and regional associations and 4,000 affiliated small and family businesses that grow and sell Christmas trees and provide related supplies and services. It is estimated that those affiliated with the national organization produce roughly three quarters of the farm-raised Christmas trees in the United States. Many of NCTA's members employ H-2A workers. 6. Plaintiff Florida Fruit & Vegetable Association, Inc. ("FFVA"), is a nonprofit agricultural trade association representing producers, packers and shippers of fresh fruits, vegetables and sugarcane in the state of Florida, including employers of H-2A
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workers. FFVA is a Florida corporation, and its principal place of business is Maitland, Florida.
7. Plaintiff the Virginia Agricultural Growers Association, Inc. ("VAGA") is a nonprofit agricultural association, organized under the laws of the Commonwealth of Virginia, that is authorized under 8 U.S.C. § 1188(d) to file master job orders as a joint employer with and on behalf of its grower members. In 2008, VAGA's 246 members obtained nearly 1,300 H-2A workers.
8. Plaintiff Snake River Farmers Association ("Snake River "), is a for-profit agent that provides H-2A workers to agricultural employers. Snake River's principal place of business is Heyburn, Idaho.
9. Plaintiff the National Council of Agricultural Employers ("NCAE") is a non-profit agricultural association organized under Section 501(c)(6) and based in Washington, D.C. Some ofNCAE's members employ H-2A workers.
10. Plaintiff North Carolina Christmas Tree Association ("NCCTA") IS an association of Christmas tree growers in the state of North Carolina, many of whom employ H-2A workers. NCCTA's principal place of business is Boone, North Carolina.
11. Plaintiff North Carolina Pickle Producer Association ("NCPPA") is a nonprofit association of pickle cucumber growers and seed companies, and pickle shippers and packers. Some of the NCPPA's grower members employ H-2A workers. NCPPA is a North Carolina corporation with its principal place of business in Nashville, North Carolina.
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12. Plaintiff Florida Citrus Mutual ("FCM") is a Section 501(c)(6) non-profit citrus trade association whose members include employers of H-2A workers. FCM's headquarters is in Lakeland, Florida.
13. Plaintiff the North Carolina Agribusiness Council, Inc. ("NCAgC"), is a non-profit corporation that raises awareness of the North Carolina agriculture and its contribution to the state economy, and advances agribusiness interests and programs. NCAgC is a North Carolina corporation with its principal place of business in Cary, North Carolina.
14. Plaintiff Maine Forest Products Council ("MFPC") is an association of forest products industry members in the State of Maine, many of whom employ nonimmigrant alien laborers. MFPC's membership includes forest landowners, land managers, logging contractors and wood-using mills. MFPC's principal place of business is Augusta, Maine.
15. Plaintiff ALTA Citrus, LLC ("ALTA"), is a for-profit citrus harvester that employs H-2A workers. ALTA's principal place of business is Avon Park, Florida.
16. Plaintiff Everglades Harvesting and Hauling, Inc. ("Everglades") is a forprofit corporation engaged in the business of citrus harvesting, hauling, and caretaking. The principal place of business of Everglades is LaBelle, Florida.
17. Plaintiff DeSoto Fruit and Harvesting, Inc. ("DeSoto") is a for-profit corporation engaged in the business of citrus harvesting. The principal place of business of DeSoto is Arcadia, Florida.
18. Plaintiff Forest Resources Association ("FRA") is an association of forest products industry members, many of whom employ non-immigrant alien laborers. FRA's
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membership includes forest landowners, land managers, logging contractors and woodusing mills. FRA's principal place of business is Rockville, Maryland.
19. Plaintiff Titan Peach Farms, Inc. ("Titan"), is a for-profit peach grower that employs H-2A workers. Titan has operations in Edgefield, Aiken, and Saluda counties, South Carolina. Titan is a South Carolina corporation with its principal place of business in Ridge Spring, South Carolina.
20. Plaintiff H-2A USA, Inc., is a for-profit agent that provides H-2A workers to agricultural employers and also employs H-2A workers. Its principal place of business is Memphis, Tennessee.
21. Plaintiff Overlook Harvesting Company, LLC ("Overlook") is a for-profit limited liability corporation engaged in the business of citrus harvesting. Overlook employs H-2A workers and its principal place of business is Winter Park, Florida.
22. Defendant Hilda 1. Solis ("Solis") is Secretary of the U.S. Department of Labor. The Secretary of Labor is responsible for all functions of the DOL, including administration of the H-2A program. Solis is sued in her official capacity, pursuant to 5 U.S.C. §703.
23. Defendant DOL is responsible for administration of the H-2A program. 24. Defendant Janet Napolitano ("Napolitano") is Secretary of the U.S. Department of Homeland Security. The Secretary of Homeland Security is responsible for all functions of DHS and its component organizations, including approving employer petitions for H-2A workers. Napolitano is sued in her official capacity, pursuant to 5 U.S.C. §703.
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25. Defendant DHS is responsible for certifying petitions so that foreign workers can obtain visas to work in the H-2A and H-2B programs.
FACTS Overview ofthe H-2A Program
26. The H-2A program replaced the prior H-2 program that had also provided a legal means by which agricultural employers could obtain the temporary services of foreign agricultural workers when U.S. workers were unavailable. The H-2A program was instituted in 1987 after the enactment of the Immigration Reform and Control Act ("IRCA") amendments to the Immigration and Nationality Act, 8 U.S.C. §1101, et seq. ("INA"). The nan1e "H-2A" comes from the statutory provision that creates the program, 8 U.S.C. §llOl(a)(15)(H)(ii)(a). The purpose of the program was to provide nonimmigrant alien labor for agricultural concerns ("farmers") in the United States. Under the program, farmers must apply to the DOL (as well as DHS and the State Department) and be approved to hire H-2A workers. The farmers must meet a number of stringent regulatory requirements regarding the wages paid, reimbursing or furnishing of certain transportation expenses, furnishing of housing, and the like. All of these terms are set forth in a contract (Agricultural and Food Processing Clearance Order, or "Clearance Order") that must be approved by DOL and is provided to the H-2A worker. The H-2A program was not designed to replace U.S. farm workers with H-2A workers: as a prelude to hiring an H-2A worker, farmers must make concrete efforts to find qualified U.S. workers and, among other requirements, offer a specified wage that is designed to ensure that U.S. workers' wages are not adversely affected by the use of H-2A workers (typically by paying the "Adverse Effect Wage Rate" ("AEWR"». Before an employer
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can proceed to hire H-2A workers, the DOL must first certify that there are insufficient U.S. workers available and that the employer's use of H-2A workers will not adversely affect the wages and working conditions of similarly situated U.S. workers. See 8 U.S.C. § I 188(a)(l)(A), (B). The H-2A program also guarantees to workers employment contracts, certain benefits including free housing, and other rights. For the farmers, the H2A program creates access to legally authorized employees for their farms and provides some stability and security to the employment relationship.
27. Farmers are required by regulation to file H-2A applications no fewer than 45 days before the date they expect to need H-2A workers. Generally, farmers wait until very near the minimum 45-day filing requirement, in order to better evaluate prevailing weather conditions, crop conditions, labor availability, confirm necessary transplant and other input availability, and other factors. The DOL is required by statute to, in most cases, render a decision on an H-2A application no fewer than 30 days before the employer's date of need, 8 U.S.c. §1188(c)(3)(A), so that additional processes can be completed, including, for example, the filing and processing of a petition based on the DOL certification with the United States Citizenship and Immigration Services of the Department of Homeland Security and so that workers can obtain visas, typically in their home countries.
28. Before promulgation of the Chao Final Rule, the H-2A program had historically been plagued by severe processing and administration problems and criticized by both workers and farmers for its inefficiencies, although it does provide the only legal avenue to hire foreign agricultural workers when there insufficient numbers of U.S. workers available. One criticism of the 1987 Rule from the standpoint of farmers was
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= = = = = = = = = = --~-
that some of the requirements and processes were so cumbersome and prone to severe delay that they actually had the perverse effect of discouraging farmers from participating in the H-2A program. See, e.g., U.S. General Accounting Office Report to Congressional Committees, H-2A Agricultural Guestworker Program (December 1997); see also Notice of Proposed Rulemaking, Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement; Proposed Rule, 73 Fed. Reg. 8538, 8541-42 (Feb. 13,2008) ("Chao NPRM"); Chao Final Rule, 74 Fed. Reg. 77111 (Dec. 18, 2008). NCGA has been requesting changes to the 1987 H-2A regulations since 1991. The "Chao Final Rule"
29. In August 2007, the Bush White I-louse announced that the DOL would review the H-2A program and consider proposing changes to the program regulations. Even before the DOL formally proposed changes through the Chao NPRM, farmers, agricultural associations and farmworker advocates provided the DOL with suggestions for reforms to the H-2A regulations. .
30. After approximately six months of receiving such suggestions, on Febmary 13, 2008, then-Secretary of Labor Elaine 1. Chao issued the Chao NPRM, which proposed a "re-engineering" of the existing H-2A regulations. See 73 Fed. Reg. 8538. Among other changes, former Secretary Chao proposed a modernized process by which farmers could apply for H-2A workers, including elimination of the duplication of efforts by the DOL and State Workforce Agencies ("SWAs"), a more accurate and precise method of setting Adverse Effective Wage Rates ("AEWRs"), increased protections for workers, and clarification regarding reimbursement of workers' inbound
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. _........_.._.....~=.....=.....=.....=.....=
transportation and related expenses. The comment period was open for 60 days, and the DOL received approximately 11,000 comments from farmers, agricultural associations, state labor agencies, academics, farmworker unions and advocacy organizations. On December 18, 2008, and after more than six additional months of deliberation, the DOL promulgated the Chao Final Rule, which became effective on January 17,2009.
31. From the standpoint of H-2A farmers, the Chao Final Rule contained a number of welcome improvements over the 1987 Rule. The H-2A application process is streamlined, removing the burdens of duplicative filing requirements and a tedious, timeconsuming approval (or denial) process. The Chao Final Rule also clarified issues related to reimbursement of travel expenses, calculation of the applicable wage rate, handling of workers' compensation benefits when the H-2A requirement appears to conflict with applicable state law, ensured additional due process rights for applicants, improved worker protections, and many other issues, providing much-needed legal certainty to both farmers and workers. Finally, the Chao Final Rule also provided that logging guestworkers, and employees of certain agricultural packing house operations, previously included in the "H-2B non-agricultural" program, would henceforth be included in the H2Aprogram.
32. The Chao Final Rule was issued about the same time that farmers began their financial and business planning for the current year. Many of the Plaintiffs and other farmers procured loans (using their homes, farmland, and equipment as collateral) and made other business commitments for the 2009 season based in substantial part on the substantive provisions of the Chao Final Rule, including its lower compliance costs, of which labor costs make up a significant portion. In many cases, business decisions had
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been finalized, crops had been planted, labor needs had been set and other irreversible commitments had been made before Secretary Solis formally proposed rewriting the Chao Final Rule. The Arriaga Theory and the Withdrawal
33. Before the Chao Final Rule was promulgated, farmers were subject to a number of "ex post Jacto" class and collective action lawsuits alleging that the farmers violated the minimum wage provisions of the Fair Labor Standards Act, 29 U.S.C. §201, et seq. ("FLSA"), by failing to reimburse inbound transportation and other travel-related expenses when they paid H-2A workers their first workweeks' wages ("relocation expenses"). In fact, these farmers relied on the DOL H-2A regulations and other principles under the FLSA to calculate H-2A workers' wages. The H-2A regulations specifically provided that relocation expenses did not have to be reimbursed until the worker completed 50 percent of the contract period ("the Reimbursement Rule"). 29 C.F.R. §655.l02(b)(5). Worker advocates, however, have generally been successful in these lawsuits, costing farmers millions of dollars in unanticipated liability. See, e.g., Arriaga v. Florida Pacific Farms, LLC, 305 F.3d 1228 (11 th Cir. 2002). PlaintiffNCGA and its members were also defendants in one of these lawsuits. See DeLuna-Guererro v. The North Carolina Growers' Ass 'n, 370 F. Supp.2d 386 (E.D.N.C. 2005). These and some other courts have found that relocation expenses are "primarily for the benefit of the employer" within the meaning of the §203(m) of the FLSA, and as such must be considered "de Jacto deductions" from wages if not reimbursed when the workers receive wages for their first workweek, to the extent that the costs "cut into" the workers' FLSA Section 6 minimum wages for that week. These court decisions are contrary to what the
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-------- ====~=~
DOL says in the Reimbursement Rule and other principles that govern FLSA analysis. If the "de facto deductions" take the workers below the FLSA minimum wage, then the farmers may have violated the FLSA, according to this theory ("the Arriaga theory"). If the "de facto deductions" take the workers below an AEWR that is higher than the minimum wage, then the theory says that the farmers may still have breached the terms of their Clearance Orders and may have violated applicable state wage payment laws.
34. The Preamble to the Chao Final Rule (and the H-2B Final Rule issued one day later) clarified this issue, seemingly, once and for all. The Preamble rejected the Arriaga theory and explained that these relocation expenses are not "primarily for the benefit of the employer." Therefore, consistent with the H-2A regulations, the expenses do not have to be reimbursed when wages are paid for the first workweek. The Preamble's discussion of this issue contained a detailed legal analysis of the DOL's interpretation of the requirements of the FLSA (which is enforced by the Administrator of the Wage Hour Division of DOL and who was an issuer of the Chao Final Rule). See 73 Fed. Reg. 77148-51; see also Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes; Final Rule, 73 Fed. Reg. 78020, 78039-41 (Dec. 19,2008).
35. As a result of this explanation of applicable law in the Chao Final Rule, farmers who applied for H-2A workers between January 17,2009, and March 26, 2009, included in their Clearance Orders statements that they would not reimburse relocation expenses when paying employees for their first workweek. The DOL approved most of these Clearance Orders, and many, if not most, of the Clearance Orders have already
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been executed. Accordingly, many of the 2009 H-2A workers have already started work in the United States and were not reimbursed for relocation expenses when they were paid for their first workweek.
36. The Withdrawal issued on March 26, 2009, purports to withdraw the Chao Final Rule Interpretation and H-2B Final Rule Interpretation that explains why the Arriaga theory is an incorrect statement of FLSA Section 6 minimum wage requirements. See 74 Fed. Reg. 13261. Although the Chao Final Rule included a detailed reasoned analysis and was issued only after notice and an opportunity for public comment, the Withdrawal contained no reasoned analysis of the DOL's reversal on the Arriaga issue and was issued without notice and an opportunity for public comment. These procedural defects render the Withdrawal invalid.
37. The Withdrawal would presumably put farmers who applied for H-2A workers between January 17,2009, and March 26, 2009, and whose workers have begun work in potential violation of the Section 6 minimum wage provisions of the FLSA and in breach of applicable state wage payment laws even though their Clearance Orders and reimbursement practices were in compliance with the law at the time undertaken.
38. Accordingly, the Plaintiffs request that the DOL be temporarily restrained, and preliminarily and permanently enjoined, from giving effect to the Withdrawal. In the alternative, the Plaintiffs seek a declaratory judgment that Clearance Orders approved by the DOL and entered into between the farmers and H-2A workers between January 17, 2009, and March 26, 2009, are in compliance with the FLSA and all other applicable laws, valid, and enforceable as written, and that they will not be liable under an Arriaga
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theory for failure to reimburse relocation expenses when workers were paid for their first workweeks. Christmas Tree Farmers
39. The Chao Final Rule provided that Christmas tree farmers were "agricultural" employers and therefore exempt from the overtime requirements of the Fair Labor Standards Act, 29 U.S.C. §201, el seq. ("FLSA"), §203(f). The Chao Final Rule abrogated prior opinion letters and interpretive guidance from the DOL expressing the opinion that Christmas tree farming was "forestry," which is not normally exempt, rather than "agriculture," which is exempt. The Solis Final Rule abrogates the Chao Final Rule on this issue and directly contradicts a decision from the U.S. Court of Appeals for the Fourth Circuit in the case of Us. Dep'l of Labor v. Ne. Growers Ass 'n, Inc., , 377 F.3d 345 (4th Cir. 2004), which found that the DOL's pre-Chao position conflicted with the clear language of the FLSA and therefore failed to meet the requirements for deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161, 89 L. Ed. 124 (1944). Upon information and belief, no other comi has ruled on this issue; therefore, presumably the Fourth Circuit's determination of the FLSA meaning of "agriculture" will apply in North Carolina, South Carolina, Virginia, West Virginia, and Maryland, and the rest of the nation will be governed by a different standard as a result of the Solis Final Rule. This will cause inconsistency and confusion, particularly with Christmas tree farmers who operate in multiple states, and will deny farnlers in other jurisdictions the rights confirmed by the Chao Final Rule.
40. In addition, the Solis NPRM did not provide any specific reason why the Chao Final Rule as it related to Christmas tree farming should be abrogated. There is no
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nexus between the alleged problems relating to the Chao Final Rule (such as processing delays and "sequence of operational events") and whether Christmas tree farming is "agriculture" or "forestry" within the meaning of the FLSA. Although the Preamble to the Solis Final Rule acknowledges that the DOL received comments on the lack of nexus and even admitted that there was no such nexus, the Preamble to the Solis Final Rule said for the first time that it was reverting to the DOL's 1950's position because it wanted to examine the effect of the Chao Final Rule on minimum wage and child labor violations, and the impact of the Chao Final Rule on low-wage earners. Because these "rationales" were not in the Solis NPRM, the public had no notice or opportunity to comment. Moreover, from a substantive standpoint, the Solis Final Rule on Christmas tree farming is invalid and not entitled to deference under Chevron US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S. Ct. 2778, 81 1. Ed.2d 694 (1984), because it conflicts with the clear statutory language of §203(f) of the FLSA. The Forest Products Industry
41. The Chao Final Rule provided that logging guestworkers would be subject to the H-2A program. The forest products industry in the northeastern United States (which includes logging as well as "downstream" industries that use lumber and wood pulp products) is highly dependent on seasonal non-immigrant, primarily French Canadian, guestworkers to harvest and transport forest products to consuming mills. Before the Chao Rule took effect, logging guestworkers were admitted under the H-2B program. The number of H-2B visas available for foreign workers to be admitted to work in the United States each year is subject to a federally mandated "cap." In years past, Congress has exempted returning H-2B workers from the cap; however, that exemption
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provision expired, and during the summer 2008 harvest season, more than 600 Canadian loggers were denied re-entry into the United States because Congress had failed to extend the exemption and there were an insufficient number of visas to meet demand. As a result, the forest products industry suffered a severe labor shortage and lost revenues, and the resulting artificial shortage of raw material created a supply crisis and drove up costs to unsustainable levels for manufacturing facilities that used lumber.
42. The 2009 H-2B visa "cap" had already been exhausted as of March 17, 2009. See U.S. Citizenship and Immigration Services Press Release, "USCIS Reaches H2B Cap for Second Half of Fiscal Year 2009" (January 8, 2009).
43. The H-2A program does not have caps, and so after the Chao Final Rule was promulgated, the forest products industry was optimistic that it would be able to secure sufficient labor under a stable, predictable federal program. Indeed, in 2009, for the first time in years, the labor needs of the forest products industry have been met because of the availability ofH-2A workers.
44. However, the Solis Final Rule puts logging guestworkers back under the H-2B program rather than the H-2A program. See 74 Fed. Reg. 25980-81, 26002, et seq. (May 29, 2009) to be codified at 29 C.F.R. §655.200, et seq.
45. Although the Solis Final Rule will not take effect until after most of the H2A logging workers for 2009 have been applied for or are already working, the forest products industry will be faced with serious labor shortages in 2010 and beyond because it is unable to consistently meet its labor demands through the highly restrictive H-2B program, in conjunction with U.S. workers.
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46. The Solis Final Rule provides that it will apply only to applications for H2A workers that were filed on or after June 29, 2009, the effective date of the Solis Final Rule. Applications filed from January 17, 2009 (the effective date of the Chao Rule) through June 28, 2009, will be subject to the Chao Final Rule ("the Grandfather Clause"). See, e.g., 74 Fed. Reg. 25979. The Grandfather Clause will not help farmers or Christmas tree growers who will not have filed all of their H-2A applications before the effective date of the Solis Final Rule. The Solis NPRM
47. In December 2008, while still a California Congresswoman, Hilda L. Solis publicly expressed significant hostility toward the then-recently promulgated.Chao Final Rule in a posting on her website. Then-Rep. Solis said,
. . . This recent action by the Bush Administration is just the latest example of how out of touch the president is with working families, especially with Latino families that make up a large portion of the farm workers in this country. There is no question that the guestworker
program needs significant overhaul but slashing wages [sic1and reducing
basic rights for the most vulnerable workers in our country, especially hardworking Latino farm workers, is not the answer.
48. On or about March 13, 2009, Ms. Solis was sworn in as Secretary of Labor. Within hours, she had issued a press release indicating her intent to suspend the Chao Rule. Then, on March 17,2009, Secretary Solis issued the Solis NPRM, which was referred to as a "Notice of Proposed Suspension."
49. In actuality, this Notice of Proposed Suspension was a Notice of Proposed Rulemaking that is subject to the requirements of the APA. The Solis NPRM did much more than just "suspend" a particular regulatory provision; it proposed to nullify the entire H-2A regulatory structure (the Chao Final Rule) that was currently in place.
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Though the DOL calls this a "suspension," it is in effect a nullification or revocation of the Chao Final Rule. Secretary Solis did not merely "suspend" compliance with the regulatory requirements of the Chao Final Rule; rather, she proposed requiring compliance with an entirely different set of regulatory standards that are wholly inconsistent with the Chao Final Rule. The Solis NPRM also resurrects the 1987 Rule that was replaced by the Chao Final Rule. Meanwhile, some of the Plaintiffs and other farmers have made financial and business plans for Calendar Year 2009 based on the requirements and standards in the Chao Final Rule.
50. The Solis NPRM provided the public with an inadequate 10 days to comment on the significant and complex proposed changes to hundreds of pages of regulations, effectively preventing most affected farmers from having a meaningful opportunity to comment because the suspension was issued in the thick of many farmers' seeding and planting time. With the unreasonably and arbitrarily shoji comment period, the public managed to submit only approximately 800 comments - a mere 7 percent of the number of comments DOL received in 2008 in response to the Chao NPRM. See 74 Fed. Reg. at 25973; 73 Fed. Reg. at 77111. Of the 800 comments received by DOL in response to the Solis NPRM, approximately 99 percent opposed the proposed regulatory changes.
51. Moreover, the Solis NPRM explicitly stated that the DOL would not consider any comments regarding the substance or merits of any regulatory provisions DOL proposed to replace (the Chao Final Rule), nor any of the regulatory provisions DOL proposed to implement (the 1987 Rule). See 74 Fed. Reg. at 11408. This restriction prevented the DOL from receiving information from the public directly relevant to the
20
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.~--

------~--------

decision about what regulatory provisions should govern the H-2A program and had a chilling effect on interested parties who would otherwise have submitted comments. Moreover, views about the merits of individual provisions of the Chao Final Rule and individual provisions of the Solis NPRM/1987 Rule are so inextricably intertwined with a decision about what regulatory provisions should govern the H-2A program that it is impossible to meaningfully separate comments on the merits from comments on whether or not the Chao Final Rule should be replaced with the Solis NPRMI1987 regulatory regime. In the Preamble to the Solis Final Rule, the DOL says that it "reviewed" but "did not consider" comments that it deemed to be outside the scope of this arbitrary limitation. See 74 Fed. Reg. 25973. Upon information and belief, the DOL applied this vague criterion to achieve the result that it desired: that is, to give disproportionate "consideration" to comments that favored its regulatory proposal (the so-called suspension) while appearing to be even-handed.
52. The Solis NPRM and the Solis Final Rule contain vague statements about the DOL's rationale that are not supported by any specific facts and that seem to contradict what information is available.
53. The Solis Final Rule contains a Grandfather Clause that will not help the Plaintiffs and other farmers because many farmers apply for H-2A workers in "waves" throughout the season; thus, even if the first waves of 2009 season H-2A workers are subject to the Chao Final Rule, subsequent waves later this season will not be. This means that the farmers' work forces will be governed by two very different, and even inconsistent, sets of rules that among other things could lead to significant labor strife resulting from workers performing the same work side by side, yet subject to differing
21
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standards and rates of pay. The DOL failed to adequately consider the impact of its regulatory action and failed to address comments raising this issue. The Solis Final Rule will also subject farmers themselves to different and inconsistent requirements, standards, obligations, and penalties. The DOL likewise failed to address this result of its regulatory changes. Moreover, the Grandfather Clause will do nothing to alleviate harm that will be suffered by farmers who made irreversible business commitments before March 17, 2009, in reliance on the Chao Final Rule.
FIRST CAUSE OF ACTION Violation of the Administrative Procedure Act,
S U.S.c. §§SS3 and 701, et seq.
54. The Plaintiffs re-allege and incorporate by reference the allegations of Paragraphs 1-53 of the Complaint as iffully set forth herein.
55. Secretary Solis, in December of 2008, publicly declared her hostility toward the Chao Final Rule. Secretary Solis, within hours of taking office, also issued a press release indicating her intent to suspend the Chao Rule, and the Solis NPRM was issued only four days after she took office. Upon information and belief, this means the Secretary and the DOL decided in advance to replace the Chao Final Rule with a new regulatory regime before considering, and without regard to the content of, public comments on the issue. Upon information and belief, the DOL prejndged the issue, ignored substantive comments that opposed the proposed regulatory change, and failed to adequately deliberate before issuing the Solis Final Rule.
56. Upon information and belief, the DOL did not give fair consideration to comments submitted in opposition to the suspension.
22
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57. In the Solis NPRM, the DOL made a number of concJusory statements in support of its proposed regulatory change without providing the public with sufficient details or information to make an informed judgment about, or to challenge the basis for, the Department's proposed changes. Specifically, the DOL said that "it is rapidly
becoming evident that the Department [of Labor1and the [State Workforce Agencies, or
"SWAs"] may lack sufficient resources to effectively and efficiently implement the [Chao Rule]." 74 Fed. Reg. at 11409. The DOL said it "may" lack sufficient resources but provided no information regarding its current level of resources, nor what what level of resources would be sufficient to implement the rule, thus depriving the public of a meaningful opportunity to evaluate that claim or provide relevant counter evidence rebutting the reasons for the DOL's proposed regulatory change. Some commenters did provide specific data on the DOL's current funding levels indicating a near 50% increase over the prior year funding, yet the DOL ignored or dismissed such comments and evidence without adequate consideration or explanation.
58. The DOL said that it had been "unable to implement the sequence of operational events required to avoid confusion and application processing delays." Jd. The DOL failed to provide a coherent plain language explanation of the meaning of the vague terms "sequence of operational events" or examples of those operational events, thus depriving the public of a meaningful opportunity to evaluate that claim or provide relevant counter evidence rebutting the stated reasons for the DOL's proposed regulatory change. Some commenters did provide information they believed relevant to the vague "operational events" to which the DOL was referring and that indicated the DOL had, contrary to its assertions, in fact successfully implemented the operational events. Yet the
23
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~--~----~~~--

~-~

.. ----.--.-~-------.~~~ ~~--~

----

DOL ignored or dismissed such comments and evidence without adequate consideration or explanation.
59. The DOL said that it "ha[d] increasing evidence that implementation of a complex new regulatory program ... before additional examination of the relevant legal and economic concerns is proving unnecessarily disruptive and confusing to the Department's administration of the H-2A program, SWAs, agricultural employers, and domestic and foreign workers." Id. The DOL, although alleging it "ha[d] increasing evidence" supporting its conclusion that the Chao Rule was disruptive and confusing, provided no such evidence in the NPRM and thus deprived the public of a meaningful opportunity to evaluate that evidence or provide evidence rebutting the stated reasons for the DOL's proposed regulatory change. Several commenters did provide specific information they believed relevant to the DOL claims of disruption and confusion, showing that rewriting the Chao Final Rules in the middle of the season in order to impose a different regulatory regime before the DOL promulgated a third version of regulations later in the year would result in more disruption and confusion, yet the DOL ignored or dismissed such comments and evidence without adequate consideration or explanation.
60. The DOL failed to provide specific facts and reasoned analysis in support of any of these conc!usory statements, which conflicted with detailed analysis and specific findings made by the DOL when it issued the Chao Final Rule. Upon information and belief, these conclusory statements by the DOL in the Solis NPRM and Solis Final Rule were intended to create the false impression that the DOL had complied with §553(b)(B) of the APA.
24
Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 24 of 35

_ _ . _ - - - - - - _ . _ - - - - _•... _ - - - - _.._ - _ .

. . . . - - - _...

61. In the Solis Final Rule, the DOL elaborated slightly on these vague and conclusory statements in the Solis NPRM and provided data and information that purported to support the DOL's decision, but such data and information were not provided in the NPRM and not subject to evaluation by the public. In addition, in arriving at its decision, the DOL relied on facts and information gathered after the close of the public comment period and not subject to evaluation by the public. Moreover, the Solis Final Rule noted that there were objections to its stated rationale for the regulatory change, but failed to consider or rebut those objections. See 74 Fed. Reg. 25973-74.
62. In the Solis Final Rule, the DOL further discusses its allegation contained 111 the Solis NPRM that the Chao Final Rule causes significant H-2A application "processing delays" and claims that those delays will be resolved by resurrection of the 1987-era regulations. The DOL received numerous comments opposing this rationale and citing the significantly worse delays that existed under the 1987 Rule. The DOL purports to rebut the comments opposing their rationale through an awkward manipulation of statistics. For example, in claiming that there were unacceptable "processing delays" under the Chao Final Rule, the DOL relies on "median" delays rather than "mean" (average) delays. Despite their availability, the DOL failed to provide in the Solis NPRM the data it relies on in purported support of its position in the Solis Final Rule. Moreover, the DOL relies on data in the Solis Final Rule that was accumulated after the close of the NPRM comment period and upon which the public had no opportunity to comment or challenge. Finally, the DOL acknowledges that "there is no evidence that the current delays have caused harm," yet it nonetheless finalizes the proposal as a remedy to these alleged delays that cause no harm. In addition, the DOL claims a rewriting of the entire
25
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H-2A regulatory regime (by replacing the Chao Final Rule with the Solis Final Rule) was necessary, but the DOL failed to consider alternative regulatory and non-regulatory options for solving the problems it claimed exist, including rewriting only the regulatory provisions responsible for the alleged delays and confusion.
63. The DOL has cited no problems relating to the vast majority of regulatory provisions governing the H-2A program, and there is no justification or explanation in the Solis Final Rule for replacing those provisions. For example, the substantially increased protections for workers in the Chao Final Rule have no effect whatsoever on the time required to process an application. There is no reasoned basis or analysis justifying the DOL's decision to effectuate a wholesale replacement of an entire regulatory regime when a targeted revision of specific regulatory provisions could easily remedy the defects that the DOL alleges exist. The prior regulatory regime (Chao Final Rule) was supported by a reasoned analysis supporting each regulatory provision and the basis supporting each of those provisions cannot now be rejected with a generalized vague claim that the entire regime creates confusion and disruption. The DOL approach is equivalent to using a bulldozer to accomplish what could and should be done with a scalpel. See 74 Fed. Reg. 25975-76.
64. The DOL issued the Solis NPRM on March 17,2009, while most farmers using the H-2A program were in the thick of planting and seeding, and provided only a 10-day comment period. The DOL said that this drastically curtailed comment period was "necessary due to the time constraints and concerns inherent in the Department's administration of the H-2A program, and in the use of the H-2A program by the agricultural community," and expressed "concern" about "uncertainty" for farmers if a
26
Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 26 of 35

longer comment period were allowed. Id. In addition to providing no factual basis for its conclusions, the DOL's "concern" rings hollow considering that the Solis NPRM was issued in the midst of the 2009 spring growing season, and only after H-2A farmers had already conducted their business and financial planning for 2009 in reliance on the Chao Final Rule. In addition, despite claiming there was insufficient time for a longer comment period, the DOL then waited more than 90 days before effectuating the changes it proposed. Essentially, the DOL argued in the Solis NPRM that there wasn't time for a normal comment period because the rewrite of the regulations had to be accomplished virtually immediately. But then the DOL waited months to issue the Solis Final Rule and now claims that it has foreclosed much of the resulting hann from the Chao Final Rule and the Solis Final Rule by letting the intervening time pass since the NPRM. Both rationales for rewriting the Chao Final Rule cannot be true. Upon information and belief, the DOL's conclusory statements in the NPRM were a sham rationale intended to disguise the fact that the DOL wished to foreclose meaningful comments from farmers, growers' associations and advocates, and the forest products industry.
65. The Solis NPRM specifically prohibited comments relating to the merits or substance of the Chao Final Rule or of the replacement provisions from the 1987 Rule that were proposed by the Solis NPRM. See 74 Fed. Reg. at 11408: "Please provide written comments only on whether the Department should suspend the [Chao Final Rule] for further review and consideration of the issues that have arisen since the final rule's publication. Comments concerning the substance or merits ofthe [Chao Final Rule or the 1987 Rule] will not be considered." (Emphasis added.) In fact, the DOL says in the Solis Final Rule that it did not consider comments that it deemed to be dealing with the merits
27
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of either rule. See 74 Fed. Reg. 25973. Thus, in addition to providing a drastically curtailed comment period, the DOL has foreclosed public comment integral to its decision to rewrite the Chao Rule. This restriction on comment subject matter had an unreasonable chilling effect on comments relating to the relative merits of particular regulatory provisions the DOL proposed implementing, as well as comments in opposition to the DOL's regulatory action. Upon information and belief, this "two-sided" restriction was a sham. Although it adversely affected members of the regulated community who were opposed to the DOL regulatory proposal, it did not adversely affect their counterparts who were in favor of DOL's proposal because the DOL had already made up its mind to replace the Chao Final Rule. Moreover, to compartmentalize discussion of this issue in such a manner effectively guaranteed that the DOL's determination of which comments fell within the required "scope" would be arbitrary and capricious. This restriction prohibiting the public from commenting on the substantive merits of an agency's proposed regulatory provisions violates §553(e) of the APA ("Each agency shall give an interested person the right to petition for the Issuance, amendment, or repeal of a rule.")
66. Upon information and belief, the DOL did not adequately consider the impact on farmers of a substantive rule change to take effect in the middle of a growing season, including but not limited to the impact of the mid-season rule change on the farmers' pre-existing contractual and other obligations.
67. Because some fanners, in reliance on the Chao Final Rule, had already entered into binding and irreversible contractual and other obligations for 2009 as of
28
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--~---~
March 17, 2009, when the Solis NPRM was issued, the Solis Final Rule has an impermissible retroactive effect that the Grandfather Clause will not alleviate.
68. Upon information and belief, the DOL in issuing the Solis NPRM and the Solis Final Rule did not consider the harm that would be suffered by the forest products industry, which cannot obtain sufficient numbers of U.S. or foreign guest workers through the H-2B program to which it is being reassigned.
69. The Solis NPRM did not provide any justification for revoking the Chao Final Rule as it related to the agricultural status of Christmas tree farmers, but the Solis Final Rule provided for the first time the alleged rationales of impact on the FLSA minimum wage and child labor provisions, and impact on low-wage earners. See 74 Fed. Reg. 25982. Because these alleged rationales were not included in the Solis NPRM, the public was deprived of notice and an opportunity for comment.
70. The Regulatory Flexibility Act ISmail Business Regulatory Enforcement Fairness Act ("RFA/SBREFA"), 5 U.S.C. §601, et seq., requires agencies to consider the impact of their regulatory proposals on small entities, analyze alternatives to minimize that impact, and make the analyses available for public comment. As part of this rulemaking, the DOL failed to include the required analysis; failed to provide the public with an oppOltunity to comment on that analysis; and failed to include a final analysis when publishing the Solis NPRM. 5 U.S.C. §§ 604, 609.
71. In lieu of preparing the analysis required under 5 U.S.C. §603(a), the RFA/SBREFA permits an agency to certify that the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities and include such certification at the time of publication of the proposed rule or the final rule,
29
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along with the factual basis for such certification. 5 U.S.C. § 605. The DOL has included no such certification as part of this rulemaking. In addition, the DOL has failed to provide any factual basis or analysis supporting such a certification; and has failed to provide the public with an opportunity to comment on any factual basis and analysis supporting such a certification. 5 U.S.C. §§ 604, 605, 609.
72. The Solis NPRM violates the RFA/SBREFA because it fails to include an analysis of the impact of the suspension on small entities; fails to provide the public with an opportunity to comment on the analysis; fails to include a certification that the suspension will not have a significant economic impact on small entities; fails to provide any factual basis or analysis supporting such a certification; and fails to provide the public with an opportunity to comment on the factual basis and analysis supporting such a certification.
73. The Unfunded Mandates Reform Act, 2 U.S.C. §1501, et seq. ("UMRA"), requires agencies to assess the effects of federal regulatory action on state, local and tribal governments, and the private sector, including determining whether the regulatory action imposes a federal mandate. 2 U.S.C. §§ 1531, 1532, 1533. The Solis NPRM contained no such assessments or analyses.
74. The Solis NPRM violated the requirements of the UMRA because it failed to include the assessments and analyses on the effects of the regulatory action on state, local and tribal governments, and the private sector, including determining whether the regulatory action imposes a federal mandate.
75. Executive Order 12866 (Regulatory Planning and Review) reqUires agencies to determine whether a regulatory action is "significant" and therefore subject to
30
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the requirements of the E.O. and subject to review by the Office of Management and Budget ("OMB"). The Solis NPRM failed to include the analyses required by the E.O., including whether the regulatory action is likely to have an annual effect on the economy of $100 million or more, or adversely and materially affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities, as required by Section 3(1) of the E.O.
76. Executive Order 13132 (Federalism) requires agencies to consult with States before and during the implementation of national policies that have a direct effect on the states, the relationship between the federal government and the states, or on the distribution of power and responsibilities among the various levels of government. The DOL failed to include the required federalism summary impact statement in the Solis NPRM.
77. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) requires agencies to develop policies in consultation with tribal officials when these policies have tribal implications. The DOL failed to include the required tribal summary impact statement in the Solis NPRM.
78. Section 654 of the Treasury and General Government Appropriations Act of 1999, 5 U.S.C. §601 note (Assessment of Federal Regulations and Policies on Families), requires agencies to assess the impact of federal regulations and policies on families, including whether the regulation strengthens or erodes the stability, integrity, autonomy, or safety of the family. The DOL failed to include the required assessment in the Solis NPRM.
31
Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 31 of 35

-~~---~~---~~--~-~-----~----------

. ~~~-~--

-------

79. Executive Order 12630 (Governmental actions and interference with constitutionally protected property rights) requires agencies to evaluate all policies and . regulations to ensure there is no impact on constitutionally protected property rights. The DOL failed to include such evaluation in the Solis NPRM.
80. Executive Order 12988 (Civil Justice Reform) requires agencies to draft regulations in a marmer that will reduce needless litigation and will not unduly burden the federal court system. The DOL failed to include in the Solis NPRM any determination of whether the regulatory action met the requirements of the E.O.
81. Executive Order 132 I I (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution or Use) requires agencies to determine whether a regulation is likely to have a significant adverse effect on the supply, distribution, or use of energy. The DOL failed to include in the Solis NPRM any determination of whether the regulatory action met the requirements of the E.O., or a Statement of Energy Effects or summary thereof, as required by the E.O.
82. Because of these deficiencies, the Solis Final Rule in its entirety violates the Administrative Procedure Act and is arbitrary and capricious, and contrary to law, and should be set aside. See 5 U.S.C. §706(2)(A), (C), and (E).
SECOND CAUSE OF ACTION Violation of the Administrative Procedure Act,
5 U.S.C. §701, et seq. 83. The Plaintiffs re-allege and incorporate by reference the allegations of Paragraphs I -82 of the Complaint as iffully set forth herein. 84. Christmas tree farming clearly falls within the definition of "agriculture" in §203(f) of the FLSA: "'Agriculture'" includes farming in all its branches and among
32
Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 32 of 35

----~ ~-~--

-

-----~-----~----------~

other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15(g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, ..." (emphasis added). The U.S. Court of Appeals for the Fourth Circuit has held that Christmas tree farming is "agriculture" and that previous attempts by the DOL to classify it as "forestry" were not entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 1. Ed.2d 124 (1944), because the interpretations were not reasonable and also conflicted with the plain language of the statute. See Us. Dep't of Labor v. Ne. Growers' Ass'n, Inc., 377 F.3d 345 (4th Cir. 2004).
85. Nonetheless, the Solis Final Rule provides that Christmas tree farming will be treated as "non-agriculture." See 74 Fed. Reg. at 25982, 26014, to be codified at 29 C.F.R. §780.115, et seq. ("the CJu'istmas tree regulations").
86. The Christmas tree regulations in the Solis Final Rule conflict with the plain language of the FLSA and therefore exceed the DOL's authority and violate the Administrative Procedure Act, 5 U.S.C. §706(2)(A), (C), and (E), and should be set aside as contrary to law.
PRAYER FOR RELIEF For the reasons set forth in this Complaint, the Plaintiffs pray the COUlt for the following relief:

33 Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 33 of 35

1) That a declaratory judgment be issued, declaring that Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25972 (May 29, 2009) is unlawful and is null and void; and 2) That a preliminary injunction be granted, pending a decision on the merits, that enjoins the Defendants from giving effect to or implementing in any manner Temporary Employment ofH-2A Aliens in the United States, 74 Fed. Reg. 25972 (May 29, 2009), or Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H-2A and H-2B Workers, 74 Fed. Reg. 13261 (March 26, 2009); and 3) That a permanent injunction be issued, enjoining the Secretary of Labor and the Secretary of Homeland Security, and the DOL and the DHS, from implementing Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25972 (May 29,2009) or Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H-2A and H-2B Workers, 74 Fed. Reg. 13261 (March 26, 2009); and 4) In the alternative to the injunctive relief sought with respect to Withdrawal of Interpretation ofthe Fair Labor Standards Act Concerning Relocation Expenses Incurred by H-2A and H-2B Workers, 74 Fed. Reg. 13261 (March 26, 2009), that a declaratory judgment be issued, declaring that farmers who applied for H-2A workers, and who executed Clearance Orders that were approved by the DOL and executed by H-2A workers, between January 17,2009 and March 26, 2009, may not be subjected to liability under the Arriaga theory based on failure to reimburse workers' relocation expenses (as defined in this Complaint) when they were paid for their first workweeks; and
34
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5) That the Plaintiffs be awarded their costs m pursumg this action, including reasonable attorneys' fees; and 6) That the Court award such other relief as it may deem just and proper.
This the 9th day of June, 2009.
/sfW. R. Loftis, Jr. N.C. State Bar No. 2774 rloftis@constangy.com CONSTANGY, BROOKS & SMITH, LLP 100 N. Cherry St., Suite 300 Winston-Salem, NC 27101 Telephone: 336-721-1001 Facsimile: 336-748-9112
35 Case 1:09-cv-00411-WO -WWD Document 1 Filed 06/09/09 Page 35 of 35

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

NORTH CAROLINA GROWERS’

)

ASSOCIATION, INC., NATIONAL

)

CHRISTMAS TREE ASSOCIATION,

)

FLORIDA FRUIT AND

)

VEGETABLE ASSOCIATION, INC., )

VIRGINIA AGRICULTURAL GROWERS )

ASSOCIATION, INC., SNAKE

)

RIVER FARMERS ASSOCIATION,

)

NATIONAL COUNCIL OF

)

AGRICULTURAL EMPLOYERS,

)

NORTH CAROLINA CHRISTMAS

)

TREE ASSOCIATION, NORTH

)

CAROLINA PICKLE PRODUCERS

)

ASSOCIATION, FLORIDA CITRUS

)

MUTUAL, NORTH CAROLINA

)

AGRIBUSINESS COUNCIL, MAINE

)

FOREST PRODUCTS COUNCIL,

)

ALTA CITRUS, LLC, EVERGLADES )

HARVESTING AND HAULING, INC., )

DESOTO FRUIT AND HARVESTING, )

INC., FOREST RESOURCES

)

ASSOCIATION, TITAN PEACH

)

FARMS, INC., H-2A USA, INC., )

and OVERLOOK HARVESTING

)

COMPANY, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

HILDA L. SOLIS, in her

)

official capacity as United

)

States Secretary of Labor,

)

UNITED STATES DEPARTMENT OF

)

LABOR, JANET NAPOLITANO, in

)

her official capacity as

)

United States Secretary of

)

Homeland Security, and

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

)

Defendants.

)

1:09CV411

MEMORANDUM OPINION AND ORDER OSTEEN, JR., DISTRICT JUDGE.
Before the court is Plaintiffs’ Motion for Preliminary Injunction. (Doc. 2.) Plaintiffs seek to preliminarily enjoin Defendants from temporarily substituting a regulation that governs the short-term employment of nonimmigrant agricultural workers. (Id.) Plaintiffs allege that the Department of Labor (“DOL”) “suspended” a rule and (re)imposed a new rule without following the requisite procedures for “rule making” as set forth in the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 553 and 701. The court notes that it has not been required to, nor has it attempted to evaluate the substantive merits of any of administrative rules or regulations. The scope of review the court applies to administrative actions is narrow, and “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In accordance with this standard, the court has evaluated Plaintiffs’ motion and the process by which the DOL formulated the rule at issue in this case. For the reasons set forth herein, Plaintiffs’ motion for a preliminary injunction (Doc. 2) will be granted. I. Facts
The DOL and the Department of Homeland Security’s “H-2A” and “H-2B” visa programs provide methods for farmers and foresters to
2

temporarily employ foreign workers to perform labor that is in short supply in the United States.
In 1987, the DOL promulgated a series of regulations in furtherance of the H-2A program (“1987 Rule”) that largely remained in effect until 2009. In 2008, the DOL promulgated new H-2A regulations (“2008 Rule”), eliminating the 1987 Rule and becoming effective on January 17, 2009. See Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110 (Dec. 18, 2008). The 2008 Rule was created to fix various perceived problems with the 1987 Rule. See id. For example, the 2008 Rule was designed to eliminate duplicative H-2A activities, more rigorously penalize noncompliant entities and protect workers. Id.
On March 17, 2009, the DOL issued a notice of proposed rule making (“2009 NPRM”), proposing to “suspend” the 2008 Rule for nine months and reinstate the 1987 Rule “[t]o avoid the regulatory vacuum that would result” from that suspension. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 11,408, 11,408 (Mar. 17, 2009). The 2009 NPRM had a ten day comment period and advised interested parties that the DOL would not consider certain comments in promulgating any rule that might arise from the notice:
Please provide written comments only on whether the Department should suspend the December 18, 2008 final
3

rule for further review and consideration of the issues that have arisen since the final rule’s publication. Comments concerning the substance or merits of the December 18, 2008 final rule or the prior rule will not be considered.
Id. (emphasis added).
On May 29, 2009, consistent with the 2009 NPRM, the DOL
issued a new H-2A rule (“Substitution Rule”), scheduled to take
effect on June 29, 2009:
The Department of Labor (DOL or Department) is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. . . . To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.
Temporary Employment of H-2A Aliens in the United States, 74 Fed.
Reg. 25,972, 25,972 (May 29, 2009). With regard to the scope of
comment restriction contained in the 2009 NPRM, the Substitution
Rule states that “[t]hough all comments have been reviewed, only
those comments responding to issues on which the [DOL] sought
comment were considered in this Final Rule.” Id. at 25,973.
Additionally, the Substitution Rule contains a “grandfather”
provision which provides that the 2008 Rule applies to all H-2A
applications filed prior to the Substitution Rule’s effective
date. Id. at 25,979.
On June 9, 2009, North Carolina Growers’ Association, Inc.,
National Christmas Tree Association, Florida Fruit and Vegetable
Association, Inc., Virginia Agricultural Growers Association,
4

Inc., Snake River Farmers Association, National Council of Agricultural Employers, North Carolina Christmas Tree Association, North Carolina Pickle Producers Association, Florida Citrus Mutual, North Carolina Agribusiness Council, Inc., Maine Forest Products Council, Alta Citrus, LLC, Everglades Harvesting and Hauling, Inc., Desoto Fruit and Harvesting, Inc., Forest Resources Association, Titan Peach Farms, Inc., H-2A USA, Inc. and Overlook Harvesting Company, LLC (collectively, “Plaintiffs”) filed a complaint naming as defendants the DOL, Hilda L. Solis, in her official capacity as the Secretary of the DOL, the Department Homeland Security (“DHS”), and Janet Napolitano, in her official capacity as the Secretary of DHS (collectively, “Defendants”). (Pls.’ Compl. (Doc. 1).) Plaintiffs allege that Defendants violated the APA, 5 U.S.C. §§ 553 and 701, in formulating the Substitution Rule. (Id. at ¶¶ 54-86.) Also on June 9, 2009, Plaintiffs filed a motion to preliminarily enjoin Defendants from implementing the Substitution Rule. (Doc. 2.)
On June 18, 2009, United Farm Workers, James Cease, Mario Centeno-Rodriguez, Juan Cisneros-Ibarra, Luis Enrique CisnerosIbarra, Reymundo Gutierrez, Carlos Luis Guzman-Avila, Juan Luis Guzman-Centeno, Jose Raul Guzman-Centeno, Abelardo HernandezAguas, Gregorio Huertas-Samano, Pedro Ibarra-Avila, Atanacio Lugo-Rincon, Obdula Maldonado-Abellaneda, Miguel Angel OlguinHernandez, Arturo Olguin-Monroy, Omera Rodriguez-Guzman,
5

Desiderio Tovar-Zapata and Alejandro Trejo-Leon (collectively, “Applicant Defendants”) filed a Motion to Intervene as Parties Defendant. (Doc. 37.) The court has taken Applicant Defendants’ Motion to Intervene under advisement and permitted Applicant Defendants to intervene for the limited purpose of Plaintiffs’ motion for preliminary injunctive relief. The court likewise allowed Applicant Defendants to participate in an oral argument hearing on Plaintiffs’ motion that was held on June 22, 2009. II. Legal Standards
A. Preliminary Injunctive Relief “[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991)). In the Fourth Circuit, courts employ the “balance-of-hardships test” in determining whether to issue preliminary injunctive relief. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 193, 196 (4th Cir. 1977). Under the balance-of-hardships test, courts generally consider the following factors: (1) the likelihood of irreparable harm to the plaintiffs if injunctive relief is denied; (2) the likelihood of harm to the defendants if the order is granted; (3) the likelihood that the plaintiffs will prevail on the merits; and
6

(4) the degree to which the public interest is served by issuance of injunctive relief. Id. at 197. “[T]he plaintiff bears the burden of establishing that each of these factors supports granting the injunction.” Direx Isreal, 952 F.2d at 812 (quoting Technical Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984) (internal brackets omitted)).
Pursuant to the balance-of-hardships test, the plaintiff must first make a clear showing of actual and immediate irreparable harm. Direx Isreal, 952 F.2d at 812. “If the plaintiff has made a ‘clear showing’ of irreparable injury absent injunctive relief, the court must next balance the likelihood of irreparable harm to the plaintiff if an injunction is not issued against the likelihood of irreparable harm to the defendant if an injunction is issued.” Northgate Assocs. LLLP v. NY Credit Funding I, LLC, No. 1:08-cv-420, 2008 U.S. Dist. LEXIS 59065, at *18 (M.D.N.C. Aug. 8, 2008). “[I]f a decided imbalance of hardship should appear in plaintiff’s favor, then the likelihoodof-success [factor] is displaced . . . .” Blackwelder, 550 F.2d at 195. Preliminary injunctive relief then will be granted if “the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus more deliberate investigation.” Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). “But if the plight of
7

the defendant [is] not substantially different from that of the plaintiffs,’ that is, if there is no imbalance of hardship in favor of the plaintiff, then the probability of success begins to assume real significance, and interim relief is more likely to require a clear showing of likelihood of success.” MicroStrategy, 245 F.3d at 339 (quoting Direx Israel, 952 F.2d at 808 (quotation marks omitted)). “The importance of probability of success increases as the probability of irreparable injury diminishes.” Blackwelder, 550 F.2d at 195.1
B. Review of Agency Action Judicial review of agency action is narrow. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. A reviewing court may not substitute its judgment for that of the agency. Id. However, an agency’s action may be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle

1 The standard for the issuance of preliminary injunctive

relief as discussed in this opinion appears to be consistent the

standard outlined by the Supreme Court in Winter v. Nat’l Res.

Def. Council,

U.S. , 129 S.Ct. 365, 374 (2008) (“A

plaintiff seeking a preliminary injunction must establish that he

is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.”).

8

Mfrs. Ass’n, 463 U.S. at 43 (citation and internal quotation marks omitted).
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies . . . . Id. III. Discussion
A. Irreparable Harm to Plaintiffs Plaintiffs allege that they will likely suffer irreparable harm as a result of the increase in wages they will be required to pay workers because of the substantive changes in the H-2A regulations made by the Substitution Rule. This court agrees. Plaintiffs will likely suffer irreparable harm in the form of unrecoverable economic damages absent injunctive relief. By replacing the 2008 Rule with the 1987 Rule, albeit for a period of nine months, the Substitution Rule will increase Plaintiffs’ business costs. For example, the Adverse Effective Wage Rate (“AEWR”), that is, the H-2A minimum wage, for North Carolina farmers under the 2008 Rule is between $7.25 and $8.51 per hour, whereas it is $9.34 per hour under the 1987 Rule. (Wicker Aff.
9

(Doc. 4-3) ¶ 5.)2
Plaintiffs’ likely irreparable harm absent relief is both
actual and immediate. Plaintiffs, in accordance with the
business plans they created for the current year before the
Substitution Rule was formulated, intend on submitting H-2A
applications after the Substitution Rule’s effective date, (see
Maciborski Aff. (Doc. 4-5) ¶ 2 (“We apply for the second wave of
H-2A workers [for the current fiscal year] in July.”)), and thus
those applications will be governed by the 1987 Rule and the
higher AEWRs called for by that rule.3
2 Farmers must be “certified” by the DOL to participate in the H-2A program. To obtain certification, the contracts the farmers enter into with their workers must comply with the H-2A rule and regulations in effect at that time. See 20 C.F.R. § 655.105(g).
At oral argument, all parties agreed that the AEWRs set by the DOL’s H-2A rule affects the wage rates in the applicable labor markets. A rule raising the AEWR increases the market wage rate. Correspondingly, a rule lowering the AEWR decreases the market wage rate. See Indus. Holographics, Inc. v. Donovan, 722 F.2d 1362, 1367 (7th Cir. 1983) (stating that the assumption that employment of an alien at wages below the prevailing wage will tend to affect the wages of American workers is not arbitrary or capricious).
3 For this same reason the Substitution Rule’s grandfather provision does not eliminate Plaintiffs’ likely irreparable harm.
The Substitution Rule takes effect on June 29, 2009. Plaintiffs can submit H-2A applications at any time. Plaintiffs have tendered unrefuted evidence that one of its members plans on submitting H-2A applications sometime in July, 2009, that is, no more than thirty-five days after the issuance of this memorandum opinion or twenty-seven days after the Substitution Rule’s effective date. (See Maciborski Aff. (Doc. 4-5) ¶ 2 (“We apply for the second wave of H-2A workers [for the current fiscal year] in July.”).) A plaintiff’s irreparable harm need not be completely certain, it is only required to be “likely.”
10

Plaintiffs’ economic losses are unrecoverable in that suits for economic damages against the federal government and federal agencies are barred by the sovereign immunity doctrine. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 484-86 (1994) (stating that federal courts may not exercise jurisdiction against the United States or one if its agencies unless the federal defendant has clearly waived its sovereign immunity from suit). Likewise, Plaintiffs will not be able to recover their losses from H-2A workers. Under the Substitution Rule, Plaintiffs will be required by law to contractually agree to employment terms consistent with the requirements provided for by that rule. See 20 C.F.R. § 655.105(g). Further, H-2A workers are temporary employees from other countries, making it less likely that Plaintiffs could garnish any wages from H-2A workers that Plaintiffs will have overpaid if the Substitution Rule is later determined to be invalid.
The Fourth Circuit Court of Appeals has not directly addressed whether unrecoverable economic losses constitute irreparable harm.4 However, in finding such losses constitute
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 193, 195 (4th Cir. 1977). Plaintiffs’ have made the requisite showing that their prospective harm is both actual and immediate.
4 This court disagrees with Applicant Defendants’ contention that the Fourth Circuit specifically addressed this issue in Feller v. Brock, 802 F.2d 722, 727 (4th Cir. 1987). In that case, the Fourth Circuit never discussed the proposition that unrecoverable economic damages can constitute irreparable harm.
11

irreparable harm under the facts of this case, the court notes
that it is in agreement with those courts that have evaluated the
issue. See Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 426 (8th
Cir. 1996); Foltz v. U.S. News & World Report, Inc., 613 F. Supp.
634, 643 (D.D.C. 1985); Ill. Bell Tel. Co. v. Hurley, No. 05 C
1149, 2005 WL 735968, at *7 (N.D. Ill. Mar. 29, 2005); Hollywood
Healthcare Corp. v. Deltec, Inc., No. Civ. 04-1713, 2004 WL
1118610, at *11 (D. Minn. May 17, 2004).5 While it is beyond
dispute that economic losses generally do not constitute
irreparable harm, this general rule rests on the assumption that
economic losses are recoverable. See Iowa Utils. Bd., 109 F.3d
at 426 (stating that cases that declare that economic losses are
not irreparable harm rest on the assumption that those losses are
In fact, the Feller court balanced the parties’ hardships, suggesting that the movant’s unrecoverable economic losses constituted irreparable harm. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (stating that under the balance-of-hardships test the plaintiff must first make a clear showing of actual and immediate irreparable harm); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991) (“The ‘balance of the hardship’ test does not negate the requirement that the [movant] show some irreparable harm.”).
5 Defendants’ assertion that this conclusion means that “every motion for [sic] preliminary injunction within the Fourth Circuit against government defendants [will] automatically be granted in favor of plaintiffs where any economic loss is alleged” is unfounded. (See Defs.’ Supplemental Mem. (Doc. 53) 2.) Where the movant has shown some quantum of irreparable harm, the likelihood of irreparable harm to the movant is only one of several balance-of-hardships factors that must be considered in determining whether to grant preliminary injunctive relief.
12

recoverable); McGean v. Montgomery County, Nos. 94-2067, 94-2194,
1996 WL 295315, at *1 (4th Cir. June 5, 1996) (“Harm is not
considered irreparable if it can be compensated by money damages
. . . .” (emphasis added)); Dickson v. Morrison, No. 98-2446,
1999 WL 543230, at *8 (4th Cir. July 27, 1999) (“[The
plaintiff’s] alleged harm was not irreparable because she could
receive money damages . . . .” (emphasis added)).6 As previously
stated, in this case, Plaintiffs’ economic losses are not
recoverable. See O’Brien v. Appomattox County, No. 02-2019, 2009
WL 21711347, at *2 (4th Cir. July 24, 2003) (per curiam)
(upholding district court’s issuance of a preliminary injunction
based on finding irreparable harm by virtue of the plaintiffs not
being able to recover their economic losses during the pending
litigation). Since Plaintiffs have met their burden of proving
that they are likely to suffer irreparable harm absent injunctive
relief, the court now turns to assessing the harm Defendants will
6 Defendants suggest that the loss of a business is the only irreparable economic harm that may be considered as a basis for granting preliminary injunctive relief. Although Defendants correctly note that the D.C. Circuit has held that economic losses constitute irreparable harm when the potential harm threatens the existence of the movant’s business, courts in that same circuit have likewise held that unrecoverable economic losses constitute irreparable harm. See Foltz v. U.S. News & World Report, Inc., 613 F. Supp. 634, 643 (D.D.C. 1985); see also The Sunday Sch. Bd., Of the S. Baptist Convention v. U.S. Postal Serv., No. 99-5018, 1999 U.S. App. LEXIS 11061, at *1 (D.C. Cir. Apr. 30, 1999) (per curiam) (“Although economic loss may constitute irreparable harm, the [plaintiff] has not shown that the alleged potential liability is unrecoverable or that it will be forced to go out of business by the uncertainty.”).
13

suffer if Plaintiffs’ motion is granted. B. Harm to Defendants Defendants have not directly stated the manner in which they
are likely to suffer harm if a preliminary injunction is granted. Defendants did offer broad justifications in support of the DOL’s suspension of the 2008 Rule. (See Def.’s Mem. in Opp’n (Doc. 36) 13-15.) Defendants suspect that the 2008 Rule has resulted in the depletion of agency resources, increased agency and public confusion, and increased H-2A application processing delays. (Id.)
The court finds that Defendants are unlikely to suffer significant harm if Plaintiffs’ motion for a preliminary injunction is granted. The government has administered the 2008 Rule since January 17, 2009. A preliminary injunction will merely maintain the status quo as it has existed since that date.
At this point, any harm Defendants might suffer is speculative at best. Under the Substitution Rule the 2008 Rule will go back into effect after nine months. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,973 (May 29, 2009). This “sunset” provision was included in the Substitution Rule because Defendants themselves are uncertain over the amount of harm, if any, the 2008 Rule has caused or will cause. See id. (stating that, absent additional rule making, the 2008 Rule will automatically go back into effect after nine
14

months and that the suspension of the [2008] Rule and temporary reinstatement of the [1987 Rule] will allow the Department to review the [2008] Rule . . . .”). This suggests that Defendants are not likely to suffer significant harm if the 2008 Rule remains in place while they decide whether or not to keep that rule or formulate a new one.7
Similarly, Applicant Defendants are not likely to suffer great harm upon issuance of a preliminary injunction. Unlike Plaintiffs, Applicant Defendants can recover economic damages they are owed if Defendants ultimately prevail. The court recognizes that delayed receipt of funds for which Applicant Defendants may be entitled might impose some hardship to Applicant Defendants and their families. However, in light of Plaintiffs showing of irreparable harm, this hardship is not enough to tip the balance in favor of not granting Plaintiffs’ motion.
C. Likelihood of Success
Based on a forecast of the evidence, Plaintiffs have shown that they are likely to prevail on the merits. Under the APA,
7 The court notes that even if Plaintiffs’ motion is granted, nothing stops Defendants from implementing a new rule to address any (real, perceived or fictitious) harm that arises from the continued administration of the 2008 Rule, provided Defendants comply with the requirements of the APA. As evidenced by the promulgation of the Substitution Rule, the rule formulation process can be completed in as little as three months.
15

“rule making” is defined as an agency’s “process for formulating,
amending, or repealing a rule.” 5 U.S.C. § 551(5). Further, §
553(c) of the APA requires that agencies “give interested persons
an opportunity to participate in the rule making through
submission of written data, views, or arguments.” 5 U.S.C. §
553(c). Defendants concede that the DOL’s suspension of the 2008
Rule and reinstatement of the 1987 Rule constituted “rule making”
under §§ 551 and 553.8
This court finds that, for purposes of the motion at hand,
8 The Substitution Rule is a “rule,” as that term is defined in the APA. Section 551(4) states that a “rule” is “the whole or a part of an agency statement of general or particular applicability . . . designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). An act also constitutes a “rule” if it “includes the approval or prescription for the future” of rates or wages. Id. Here, the Substitution Rule, specifically the component that reinstates the 1987 Rule, constitutes a “rule” in that it implements the AEWRs with which Plaintiffs must comply.
Notwithstanding Defendants’ concession and the fact that the Supreme Court has suggested that rule suspensions are permissible, see Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 n.15 (1983) (“We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement . . . .”), it is not clear whether rule suspensions constitute “rule making” under § 551(5) and thus must comply with § 553(c). Nevertheless, it is not necessary to resolve this issue to determine whether Plaintiffs’ motion should be granted. Here, Defendants did more than just suspend a set a regulations in promulgating the Substitution Rule. In addition to withdrawing a rule, Defendants effectively formulated a new rule by reinstating the 1987 Rule. As stated, the APA’s definition of “rule making” explicitly covers rule formulation. See 5 U.S.C. § 551(5) (defining “rule making” as an agency’s “process for formulating, amending, or repealing a rule.” (emphasis added)). Accordingly, in order for the Substitution Rule to be valid, the DOL must have complied with § 553(c) of the APA in reinstating the 1987 Rule.
16

Plaintiffs have presented a substantial question as to the
validity the 2009 NPRM’s scope of comment restriction violated §
553(c) of the APA because the restriction prohibited Plaintiffs
from participating in the making of the actual rule the DOL
proposed to implement, that is, the 1987 Rule. See Temporary
Employment of H-2A Aliens in the United States, 74 Fed. Reg.
11,408, 11,408 (Mar. 17, 2009) (“Comments concerning the
substance or merits of the December 18, 2008 final rule or the
prior rule will not be considered.”). Although the parties might
be familiar with the 1987 Rule, the APA does not contain a
“reinstatement of old rules” exception to the “opportunity to
comment” right conferred to interested parties by § 553(c).
Furthermore, there is no direct authority, nor have Defendants
presented any authority, in support of the proposition that
(temporary) rule reinstatements should be evaluated under a
different legal standard than that which is used in assessing the
promulgation of all other types of rules.9
9 Plaintiffs have offered evidence that they would have submitted additional comments absent the scope of comment restriction contained in the 2009 NPRM. (See Wicker Aff. (Doc. 4-3) Ex. A at 20) (“Again, as with the rest of the substance of the regulations governing the H-2A program, the NCGA would like an opportunity to comment on the specific provisions . . . of the Department’s proposal . . . . But according to the terms set by the Department in the Notice, any comments on these subjects will not be considered . . . .”) Accordingly, Plaintiffs are able to make the requisite showing that they were prejudiced by the comment restriction. See Columbia Venture LLC, v. S.C. Wildlife Fed’n, 562 F.3d 290, 294 (“[T]he party who claims deficient notice bears the burden of proving that any such deficiency was
17

Similarly, for purposes of their motion for a preliminary injunction, Plaintiffs have established that a court will likely find that Defendants’ formulation of the Substitution Rule was arbitrary and capricious as that term is used in 5 U.S.C. § 706(2)(A), in that the DOL openly failed to consider comments concerning the merits and substance of the rule they reinstated. See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,973 (May 29, 2009) (“Though all comments have been reviewed, only those comments responding to issues on which the [DOL] sought comment were considered in this Final Rule.”). Defendants have not presented any authority or argument to explain their refusal to consider the substance and merits of the 1987 Rule, nor have they explained why the evaluation of the substance and the merits of the 1987 Rule and the 2008 Rule were not relevant issues that the DOL was required to consider. See id.; Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (stating that a rule may be set aside if the agency entirely failed to consider important aspects of the problem and that “[t]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection
prejudicial, and if that party fails to carry its burden, the agency’s decision must be upheld.” (citation and internal quotation marks omitted)).
18

between the facts found and the choice made.”).10
Finally, the Substitution Rule’s reinstatement of the 1987
Rule in its entirety makes it likely that Plaintiffs will
ultimately prevail on the merits. See id. at 25,979. Total
reinstatement of the 1987 Rule raises serious doubts as to the
validity of the Substitution Rule because the Fourth Circuit has
already held that a regulation contained within the 1987 Rule is
invalid and harmed a party that is a plaintiff in the current
action. See U.S. Dept. of Labor v. N.C. Growers’ Assoc., Inc.,
377 F.3d 345, 353 (4th Cir. 2004) (“[W]e hold that the
cultivation, growing, and harvesting of Christmas trees is
agriculture as defined in § 203(f), and that the employees of the
Growers are thus exempt from the overtime provisions of the FLSA.”).11
10 This is particularly significant in light of the fact that the Substitution Rule states that a H-2A rule change was warranted because of “severe economic conditions [now] facing the country.” See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009). Without the DOL reviewing and analyzing the substance and merits of the 1987 Rule, it is not clear that the DOL could have made a rational determination that reinstatement of that rule was an appropriate response to the country’s change in economic circumstances.
11 The Applicant Defendants have repeatedly stated that this court is considering the validity of the 2008 Rule and the policy decisions that underlie that rule in evaluating Plaintiffs’ motion. Applicant Defendants are incorrect. The formulation process associated with the Substitution Rule is the matter at issue in this case.
19

D. Public Interest The public interest is likely to be furthered to the same degree whether the court grants or denies Plaintiffs’ motion for preliminary injunctive relief. On the one hand, Plaintiffs assert that if their motion is not granted there will be labor shortages resulting in higher food and commodity prices. (Pls.’ Mem. in Supp. (Doc. 3) 19-20.) On the other hand, Defendants suggest that if a preliminary injunction is issued non-H-2A worker wages might be depressed and the government may have to bear the cost of administering an H-2A rule that might be changed by the current Presidential Administration for policy reasons. See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009) (“[T]he development of [2008 Rule] was based in part on the policy positions of the prior Administration with which the current Administration may differ and wish to reconsider . . . . In light of the potential for new rulemaking . . . it would not be an efficient use of limited agency resources, appropriated from taxpayer funds, to continue to attempt to operationalize the [2008 Rule] . . . .”). The court finds that neither of these interests significantly outweigh the other. Accordingly, based on the facts of this case and a forecast of the evidence, the court concludes that its assessment of the other balance-of-hardships factors is controlling.
20

IV. Conclusion For the reasons set forth above, particularly, the
relatively slight amount of harm Defendants will suffer if an injunction is issued and the substantial likelihood that Plaintiffs will ultimately succeed on the merits, IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) is GRANTED.
This the 29th day of June 2009. United States District Judge
21

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

NORTH CAROLINA GROWERS’

)

ASSOCIATION, INC., NATIONAL

)

CHRISTMAS TREE ASSOCIATION,

)

FLORIDA FRUIT AND

)

VEGETABLE ASSOCIATION, INC., )

VIRGINIA AGRICULTURAL GROWERS )

ASSOCIATION, INC., SNAKE

)

RIVER FARMERS ASSOCIATION,

)

NATIONAL COUNCIL OF

)

AGRICULTURAL EMPLOYERS,

)

NORTH CAROLINA CHRISTMAS

)

TREE ASSOCIATION, NORTH

)

CAROLINA PICKLE PRODUCERS

)

ASSOCIATION, FLORIDA CITRUS

)

MUTUAL, NORTH CAROLINA

)

AGRIBUSINESS COUNCIL, MAINE

)

FOREST PRODUCTS COUNCIL,

)

ALTA CITRUS, LLC, EVERGLADES )

HARVESTING AND HAULING, INC., )

DESOTO FRUIT AND HARVESTING, )

INC., FOREST RESOURCES

)

ASSOCIATION, TITAN PEACH

)

FARMS, INC., H-2A USA, INC., )

and OVERLOOK HARVESTING

)

COMPANY, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

HILDA L. SOLIS, in her

)

official capacity as United

)

States Secretary of Labor,

)

UNITED STATES DEPARTMENT OF

)

LABOR, JANET NAPOLITANO, in

)

her official capacity as

)

United States Secretary of

)

Homeland Security, and

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

)

Defendants.

)

1:09CV411

AMENDED MEMORANDUM OPINION AND ORDER OSTEEN, JR., DISTRICT JUDGE.
Before the court is Plaintiffs’ Motion for Preliminary Injunction. (Doc. 2.) Plaintiffs seek to preliminarily enjoin Defendants from temporarily substituting a regulation that governs the short-term employment of nonimmigrant agricultural workers. (Id.) Plaintiffs allege that the Department of Labor (“DOL”) “suspended” a rule and (re)imposed a new rule without following the requisite procedures for “rule making” as set forth in the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 553 and 701. The court notes that it has not been required to, nor has it attempted to evaluate the substantive merits of any of administrative rules or regulations. The scope of review the court applies to administrative actions is narrow, and “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). In accordance with this standard, the court has evaluated Plaintiffs’ motion and the process by which the DOL formulated the rule at issue in this case. For the reasons set forth herein, Plaintiffs’ motion for a preliminary injunction (Doc. 2) will be granted. I. Facts
The DOL and the Department of Homeland Security’s “H-2A” and “H-2B” visa programs provide methods for farmers and foresters to
2

temporarily employ foreign workers to perform labor that is in short supply in the United States.
In 1987, the DOL promulgated a series of regulations in furtherance of the H-2A program (“1987 Rule”) that largely remained in effect until 2009. In 2008, the DOL promulgated new H-2A regulations (“2008 Rule”), eliminating the 1987 Rule and becoming effective on January 17, 2009. See Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110 (Dec. 18, 2008). The 2008 Rule was created to fix various perceived problems with the 1987 Rule. See id. For example, the 2008 Rule was designed to eliminate duplicative H-2A activities, more rigorously penalize noncompliant entities and protect workers. Id.
On March 17, 2009, the DOL issued a notice of proposed rule making (“2009 NPRM”), proposing to “suspend” the 2008 Rule for nine months and reinstate the 1987 Rule “[t]o avoid the regulatory vacuum that would result” from that suspension. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 11,408, 11,408 (Mar. 17, 2009). The 2009 NPRM had a ten day comment period and advised interested parties that the DOL would not consider certain comments in promulgating any rule that might arise from the notice:
Please provide written comments only on whether the Department should suspend the December 18, 2008 final
3

rule for further review and consideration of the issues that have arisen since the final rule’s publication. Comments concerning the substance or merits of the December 18, 2008 final rule or the prior rule will not be considered.
Id. (emphasis added).
On May 29, 2009, consistent with the 2009 NPRM, the DOL
issued a new H-2A rule (“Substitution Rule”), scheduled to take
effect on June 29, 2009:
The Department of Labor (DOL or Department) is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. . . . To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.
Temporary Employment of H-2A Aliens in the United States, 74 Fed.
Reg. 25,972, 25,972 (May 29, 2009). With regard to the scope of
comment restriction contained in the 2009 NPRM, the Substitution
Rule states that “[t]hough all comments have been reviewed, only
those comments responding to issues on which the [DOL] sought
comment were considered in this Final Rule.” Id. at 25,973.
Additionally, the Substitution Rule contains a “grandfather”
provision which provides that the 2008 Rule applies to all H-2A
applications filed prior to the Substitution Rule’s effective
date. Id. at 25,979.
On June 9, 2009, North Carolina Growers’ Association, Inc.,
National Christmas Tree Association, Florida Fruit and Vegetable
Association, Inc., Virginia Agricultural Growers Association,
4

Inc., Snake River Farmers Association, National Council of Agricultural Employers, North Carolina Christmas Tree Association, North Carolina Pickle Producers Association, Florida Citrus Mutual, North Carolina Agribusiness Council, Inc., Maine Forest Products Council, Alta Citrus, LLC, Everglades Harvesting and Hauling, Inc., Desoto Fruit and Harvesting, Inc., Forest Resources Association, Titan Peach Farms, Inc., H-2A USA, Inc. and Overlook Harvesting Company, LLC (collectively, “Plaintiffs”) filed a complaint naming as defendants the DOL, Hilda L. Solis, in her official capacity as the Secretary of the DOL, the Department Homeland Security (“DHS”), and Janet Napolitano, in her official capacity as the Secretary of DHS (collectively, “Defendants”). (Pls.’ Compl. (Doc. 1).) Plaintiffs allege that Defendants violated the APA, 5 U.S.C. §§ 553 and 701, in formulating the Substitution Rule. (Id. at ¶¶ 54-86.) Also on June 9, 2009, Plaintiffs filed a motion to preliminarily enjoin Defendants from implementing the Substitution Rule. (Doc. 2.)
On June 18, 2009, United Farm Workers, James Cease, Mario Centeno-Rodriguez, Juan Cisneros-Ibarra, Luis Enrique CisnerosIbarra, Reymundo Gutierrez, Carlos Luis Guzman-Avila, Juan Luis Guzman-Centeno, Jose Raul Guzman-Centeno, Abelardo HernandezAguas, Gregorio Huertas-Samano, Pedro Ibarra-Avila, Atanacio Lugo-Rincon, Obdula Maldonado-Abellaneda, Miguel Angel OlguinHernandez, Arturo Olguin-Monroy, Omera Rodriguez-Guzman,
5

Desiderio Tovar-Zapata and Alejandro Trejo-Leon (collectively, “Applicant Defendants”) filed a Motion to Intervene as Parties Defendant. (Doc. 37.) The court has taken Applicant Defendants’ Motion to Intervene under advisement and permitted Applicant Defendants to intervene for the limited purpose of Plaintiffs’ motion for preliminary injunctive relief. The court likewise allowed Applicant Defendants to participate in an oral argument hearing on Plaintiffs’ motion that was held on June 22, 2009. II. Legal Standards
A. Preliminary Injunctive Relief “[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir. 1991)). In the Fourth Circuit, courts employ the “balance-of-hardships test” in determining whether to issue preliminary injunctive relief. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 193, 196 (4th Cir. 1977). Under the balance-of-hardships test, courts generally consider the following factors: (1) the likelihood of irreparable harm to the plaintiffs if injunctive relief is denied; (2) the likelihood of harm to the defendants if the order is granted; (3) the likelihood that the plaintiffs will prevail on the merits; and
6

(4) the degree to which the public interest is served by issuance of injunctive relief. Id. at 197. “[T]he plaintiff bears the burden of establishing that each of these factors supports granting the injunction.” Direx Isreal, 952 F.2d at 812 (quoting Technical Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir. 1984) (internal brackets omitted)).
Pursuant to the balance-of-hardships test, the plaintiff must first make a clear showing of actual and immediate irreparable harm. Direx Isreal, 952 F.2d at 812. “If the plaintiff has made a ‘clear showing’ of irreparable injury absent injunctive relief, the court must next balance the likelihood of irreparable harm to the plaintiff if an injunction is not issued against the likelihood of irreparable harm to the defendant if an injunction is issued.” Northgate Assocs. LLLP v. NY Credit Funding I, LLC, No. 1:08-cv-420, 2008 U.S. Dist. LEXIS 59065, at *18 (M.D.N.C. Aug. 8, 2008). “[I]f a decided imbalance of hardship should appear in plaintiff’s favor, then the likelihoodof-success [factor] is displaced . . . .” Blackwelder, 550 F.2d at 195. Preliminary injunctive relief then will be granted if “the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus more deliberate investigation.” Id. (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953)). “But if the plight of
7

the defendant [is] not substantially different from that of the plaintiffs,’ that is, if there is no imbalance of hardship in favor of the plaintiff, then the probability of success begins to assume real significance, and interim relief is more likely to require a clear showing of likelihood of success.” MicroStrategy, 245 F.3d at 339 (quoting Direx Israel, 952 F.2d at 808 (quotation marks omitted)). “The importance of probability of success increases as the probability of irreparable injury diminishes.” Blackwelder, 550 F.2d at 195.1
B. Review of Agency Action Judicial review of agency action is narrow. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. A reviewing court may not substitute its judgment for that of the agency. Id. However, an agency’s action may be set aside if found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle

1 The standard for the issuance of preliminary injunctive

relief as discussed in this opinion appears to be consistent the

standard outlined by the Supreme Court in Winter v. Nat’l Res.

Def. Council,

U.S. , 129 S.Ct. 365, 374 (2008) (“A

plaintiff seeking a preliminary injunction must establish that he

is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.”).

8

Mfrs. Ass’n, 463 U.S. at 43 (citation and internal quotation marks omitted).
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies . . . . Id. III. Discussion
A. Irreparable Harm to Plaintiffs Plaintiffs allege that they will likely suffer irreparable harm as a result of the increase in wages they will be required to pay workers because of the substantive changes in the H-2A regulations made by the Substitution Rule. This court agrees. Plaintiffs will likely suffer irreparable harm in the form of unrecoverable economic damages absent injunctive relief. By replacing the 2008 Rule with the 1987 Rule, albeit for a period of nine months, the Substitution Rule will increase Plaintiffs’ business costs. For example, the Adverse Effective Wage Rate (“AEWR”), that is, the H-2A minimum wage, for North Carolina farmers under the 2008 Rule is between $7.25 and $8.51 per hour, whereas it is $9.34 per hour under the 1987 Rule. (Wicker Aff.
9

(Doc. 4-3) ¶ 5.)2
Plaintiffs’ likely irreparable harm absent relief is both
actual and immediate. Plaintiffs, in accordance with the
business plans they created for the current year before the
Substitution Rule was formulated, intend on submitting H-2A
applications after the Substitution Rule’s effective date, (see
Maciborski Aff. (Doc. 4-5) ¶ 2 (“We apply for the second wave of
H-2A workers [for the current fiscal year] in July.”)), and thus
those applications will be governed by the 1987 Rule and the
higher AEWRs called for by that rule.3
2 Farmers must be “certified” by the DOL to participate in the H-2A program. To obtain certification, the contracts the farmers enter into with their workers must comply with the H-2A rule and regulations in effect at that time. See 20 C.F.R. § 655.105(g).
At oral argument, all parties agreed that the AEWRs set by the DOL’s H-2A rule affects the wage rates in the applicable labor markets. A rule raising the AEWR increases the market wage rate. Correspondingly, a rule lowering the AEWR decreases the market wage rate. See Indus. Holographics, Inc. v. Donovan, 722 F.2d 1362, 1367 (7th Cir. 1983) (stating that the assumption that employment of an alien at wages below the prevailing wage will tend to affect the wages of American workers is not arbitrary or capricious).
3 For this same reason the Substitution Rule’s grandfather provision does not eliminate Plaintiffs’ likely irreparable harm.
The Substitution Rule takes effect on June 29, 2009. Plaintiffs can submit H-2A applications at any time. Plaintiffs have tendered unrefuted evidence that one of its members plans on submitting H-2A applications sometime in July, 2009, that is, no more than thirty-five days after the issuance of this memorandum opinion or twenty-seven days after the Substitution Rule’s effective date. (See Maciborski Aff. (Doc. 4-5) ¶ 2 (“We apply for the second wave of H-2A workers [for the current fiscal year] in July.”).) A plaintiff’s irreparable harm need not be completely certain, it is only required to be “likely.”
10

Plaintiffs’ economic losses are unrecoverable in that suits for economic damages against the federal government and federal agencies are barred by the sovereign immunity doctrine. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 484-86 (1994) (stating that federal courts may not exercise jurisdiction against the United States or one if its agencies unless the federal defendant has clearly waived its sovereign immunity from suit). Likewise, Plaintiffs will not be able to recover their losses from H-2A workers. Under the Substitution Rule, Plaintiffs will be required by law to contractually agree to employment terms consistent with the requirements provided for by that rule. See 20 C.F.R. § 655.105(g). Further, H-2A workers are temporary employees from other countries, making it less likely that Plaintiffs could garnish any wages from H-2A workers that Plaintiffs will have overpaid if the Substitution Rule is later determined to be invalid.
The Fourth Circuit Court of Appeals has not directly addressed whether unrecoverable economic losses constitute irreparable harm.4 However, in finding such losses constitute
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 193, 195 (4th Cir. 1977). Plaintiffs’ have made the requisite showing that their prospective harm is both actual and immediate.
4 This court disagrees with Applicant Defendants’ contention that the Fourth Circuit specifically addressed this issue in Feller v. Brock, 802 F.2d 722, 727 (4th Cir. 1987). In that case, the Fourth Circuit never discussed the proposition that unrecoverable economic damages can constitute irreparable harm.
11

irreparable harm under the facts of this case, the court notes
that it is in agreement with those courts that have evaluated the
issue. See Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 426 (8th
Cir. 1996); Foltz v. U.S. News & World Report, Inc., 613 F. Supp.
634, 643 (D.D.C. 1985); Ill. Bell Tel. Co. v. Hurley, No. 05 C
1149, 2005 WL 735968, at *7 (N.D. Ill. Mar. 29, 2005); Hollywood
Healthcare Corp. v. Deltec, Inc., No. Civ. 04-1713, 2004 WL
1118610, at *11 (D. Minn. May 17, 2004).5 While it is beyond
dispute that economic losses generally do not constitute
irreparable harm, this general rule rests on the assumption that
economic losses are recoverable. See Iowa Utils. Bd., 109 F.3d
at 426 (stating that cases that declare that economic losses are
not irreparable harm rest on the assumption that those losses are
In fact, the Feller court balanced the parties’ hardships, suggesting that the movant’s unrecoverable economic losses constituted irreparable harm. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (stating that under the balance-of-hardships test the plaintiff must first make a clear showing of actual and immediate irreparable harm); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991) (“The ‘balance of the hardship’ test does not negate the requirement that the [movant] show some irreparable harm.”).
5 Defendants’ assertion that this conclusion means that “every motion for [sic] preliminary injunction within the Fourth Circuit against government defendants [will] automatically be granted in favor of plaintiffs where any economic loss is alleged” is unfounded. (See Defs.’ Supplemental Mem. (Doc. 53) 2.) Where the movant has shown some quantum of irreparable harm, the likelihood of irreparable harm to the movant is only one of several balance-of-hardships factors that must be considered in determining whether to grant preliminary injunctive relief.
12

recoverable); McGean v. Montgomery County, Nos. 94-2067, 94-2194,
1996 WL 295315, at *1 (4th Cir. June 5, 1996) (“Harm is not
considered irreparable if it can be compensated by money damages
. . . .” (emphasis added)); Dickson v. Morrison, No. 98-2446,
1999 WL 543230, at *8 (4th Cir. July 27, 1999) (“[The
plaintiff’s] alleged harm was not irreparable because she could
receive money damages . . . .” (emphasis added)).6 As previously
stated, in this case, Plaintiffs’ economic losses are not
recoverable. See O’Brien v. Appomattox County, No. 02-2019, 2009
WL 21711347, at *2 (4th Cir. July 24, 2003) (per curiam)
(upholding district court’s issuance of a preliminary injunction
based on finding irreparable harm by virtue of the plaintiffs not
being able to recover their economic losses during the pending
litigation). Since Plaintiffs have met their burden of proving
that they are likely to suffer irreparable harm absent injunctive
relief, the court now turns to assessing the harm Defendants will
6 Defendants suggest that the loss of a business is the only irreparable economic harm that may be considered as a basis for granting preliminary injunctive relief. Although Defendants correctly note that the D.C. Circuit has held that economic losses constitute irreparable harm when the potential harm threatens the existence of the movant’s business, courts in that same circuit have likewise held that unrecoverable economic losses constitute irreparable harm. See Foltz v. U.S. News & World Report, Inc., 613 F. Supp. 634, 643 (D.D.C. 1985); see also The Sunday Sch. Bd., Of the S. Baptist Convention v. U.S. Postal Serv., No. 99-5018, 1999 U.S. App. LEXIS 11061, at *1 (D.C. Cir. Apr. 30, 1999) (per curiam) (“Although economic loss may constitute irreparable harm, the [plaintiff] has not shown that the alleged potential liability is unrecoverable or that it will be forced to go out of business by the uncertainty.”).
13

suffer if Plaintiffs’ motion is granted. B. Harm to Defendants Defendants have not directly stated the manner in which they
are likely to suffer harm if a preliminary injunction is granted. Defendants did offer broad justifications in support of the DOL’s suspension of the 2008 Rule. (See Def.’s Mem. in Opp’n (Doc. 36) 13-15.) Defendants suspect that the 2008 Rule has resulted in the depletion of agency resources, increased agency and public confusion, and increased H-2A application processing delays. (Id.)
The court finds that Defendants are unlikely to suffer significant harm if Plaintiffs’ motion for a preliminary injunction is granted. The government has administered the 2008 Rule since January 17, 2009. A preliminary injunction will merely maintain the status quo as it has existed since that date.
At this point, any harm Defendants might suffer is speculative at best. Under the Substitution Rule the 2008 Rule will go back into effect after nine months. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,973 (May 29, 2009). This “sunset” provision was included in the Substitution Rule because Defendants themselves are uncertain over the amount of harm, if any, the 2008 Rule has caused or will cause. See id. (stating that, absent additional rule making, the 2008 Rule will automatically go back into effect after nine
14

months and that the suspension of the [2008] Rule and temporary reinstatement of the [1987 Rule] will allow the Department to review the [2008] Rule . . . .”). This suggests that Defendants are not likely to suffer significant harm if the 2008 Rule remains in place while they decide whether or not to keep that rule or formulate a new one.7
Similarly, Applicant Defendants are not likely to suffer great harm upon issuance of a preliminary injunction. Unlike Plaintiffs, Applicant Defendants can recover economic damages they are owed if Defendants ultimately prevail. The court recognizes that delayed receipt of funds for which Applicant Defendants may be entitled might impose some hardship to Applicant Defendants and their families. However, in light of Plaintiffs showing of irreparable harm, this hardship is not enough to tip the balance in favor of not granting Plaintiffs’ motion.
C. Likelihood of Success
Based on a forecast of the evidence, Plaintiffs have shown that they are likely to prevail on the merits. Under the APA,
7 The court notes that even if Plaintiffs’ motion is granted, nothing stops Defendants from implementing a new rule to address any (real, perceived or fictitious) harm that arises from the continued administration of the 2008 Rule, provided Defendants comply with the requirements of the APA. As evidenced by the promulgation of the Substitution Rule, the rule formulation process can be completed in as little as three months.
15

“rule making” is defined as an agency’s “process for formulating,
amending, or repealing a rule.” 5 U.S.C. § 551(5). Further, §
553(c) of the APA requires that agencies “give interested persons
an opportunity to participate in the rule making through
submission of written data, views, or arguments.” 5 U.S.C. §
553(c). Defendants concede that the DOL’s suspension of the 2008
Rule and reinstatement of the 1987 Rule constituted “rule making”
under §§ 551 and 553.8
This court finds that, for purposes of the motion at hand,
8 The Substitution Rule is a “rule,” as that term is defined in the APA. Section 551(4) states that a “rule” is “the whole or a part of an agency statement of general or particular applicability . . . designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). An act also constitutes a “rule” if it “includes the approval or prescription for the future” of rates or wages. Id. Here, the Substitution Rule, specifically the component that reinstates the 1987 Rule, constitutes a “rule” in that it implements the AEWRs with which Plaintiffs must comply.
Notwithstanding Defendants’ concession and the fact that the Supreme Court has suggested that rule suspensions are permissible, see Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 n.15 (1983) (“We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement . . . .”), it is not clear whether rule suspensions constitute “rule making” under § 551(5) and thus must comply with § 553(c). Nevertheless, it is not necessary to resolve this issue to determine whether Plaintiffs’ motion should be granted. Here, Defendants did more than just suspend a set a regulations in promulgating the Substitution Rule. In addition to withdrawing a rule, Defendants effectively formulated a new rule by reinstating the 1987 Rule. As stated, the APA’s definition of “rule making” explicitly covers rule formulation. See 5 U.S.C. § 551(5) (defining “rule making” as an agency’s “process for formulating, amending, or repealing a rule.” (emphasis added)). Accordingly, in order for the Substitution Rule to be valid, the DOL must have complied with § 553(c) of the APA in reinstating the 1987 Rule.
16

Plaintiffs have presented a substantial question as to whether
the 2009 NPRM’s scope of comment restriction violated § 553(c) of
the APA because the restriction prohibited Plaintiffs from
participating in the making of the actual rule the DOL proposed
to implement, that is, the 1987 Rule. See Temporary Employment
of H-2A Aliens in the United States, 74 Fed. Reg. 11,408, 11,408
(Mar. 17, 2009) (“Comments concerning the substance or merits of
the December 18, 2008 final rule or the prior rule will not be
considered.”). Although the parties might be familiar with the
1987 Rule, the APA does not contain a “reinstatement of old
rules” exception to the “opportunity to comment” right conferred
to interested parties by § 553(c). Furthermore, there is no
direct authority, nor have Defendants presented any authority, in
support of the proposition that (temporary) rule reinstatements
should be evaluated under a different legal standard than that
which is used in assessing the promulgation of all other types of
rules.9
9 Plaintiffs have offered evidence that they would have submitted additional comments absent the scope of comment restriction contained in the 2009 NPRM. (See Wicker Aff. (Doc. 4-3) Ex. A at 20) (“Again, as with the rest of the substance of the regulations governing the H-2A program, the NCGA would like an opportunity to comment on the specific provisions . . . of the Department’s proposal . . . . But according to the terms set by the Department in the Notice, any comments on these subjects will not be considered . . . .”) Accordingly, Plaintiffs are able to make the requisite showing that they were prejudiced by the comment restriction. See Columbia Venture LLC, v. S.C. Wildlife Fed’n, 562 F.3d 290, 294 (“[T]he party who claims deficient notice bears the burden of proving that any such deficiency was
17

Similarly, for purposes of their motion for a preliminary injunction, Plaintiffs have established that a court will likely find that Defendants’ formulation of the Substitution Rule was arbitrary and capricious as that term is used in 5 U.S.C. § 706(2)(A), in that the DOL openly failed to consider comments concerning the merits and substance of the rule they reinstated. See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,973 (May 29, 2009) (“Though all comments have been reviewed, only those comments responding to issues on which the [DOL] sought comment were considered in this Final Rule.”). Defendants have not presented any authority or argument to explain their refusal to consider the substance and merits of the 1987 Rule, nor have they explained why the evaluation of the substance and the merits of the 1987 Rule and the 2008 Rule were not relevant issues that the DOL was required to consider. See id.; Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (stating that a rule may be set aside if the agency entirely failed to consider important aspects of the problem and that “[t]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection
prejudicial, and if that party fails to carry its burden, the agency’s decision must be upheld.” (citation and internal quotation marks omitted)).
18

between the facts found and the choice made.”).10
Finally, the Substitution Rule’s reinstatement of the 1987
Rule in its entirety makes it likely that Plaintiffs will
ultimately prevail on the merits. See id. at 25,979. Total
reinstatement of the 1987 Rule raises serious doubts as to the
validity of the Substitution Rule because the Fourth Circuit has
already held that a regulation contained within the 1987 Rule is
invalid and harmed a party that is a plaintiff in the current
action. See U.S. Dept. of Labor v. N.C. Growers’ Assoc., Inc.,
377 F.3d 345, 353 (4th Cir. 2004) (“[W]e hold that the
cultivation, growing, and harvesting of Christmas trees is
agriculture as defined in § 203(f), and that the employees of the
Growers are thus exempt from the overtime provisions of the FLSA.”).11
10 This is particularly significant in light of the fact that the Substitution Rule states that a H-2A rule change was warranted because of “severe economic conditions [now] facing the country.” See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009). Without the DOL reviewing and analyzing the substance and merits of the 1987 Rule, it is not clear that the DOL could have made a rational determination that reinstatement of that rule was an appropriate response to the country’s change in economic circumstances.
11 The Applicant Defendants have repeatedly stated that this court is considering the validity of the 2008 Rule and the policy decisions that underlie that rule in evaluating Plaintiffs’ motion. Applicant Defendants are incorrect. The formulation process associated with the Substitution Rule is the matter at issue in this case.
19

D. Public Interest The public interest is likely to be furthered to the same degree whether the court grants or denies Plaintiffs’ motion for preliminary injunctive relief. On the one hand, Plaintiffs assert that if their motion is not granted there will be labor shortages resulting in higher food and commodity prices. (Pls.’ Mem. in Supp. (Doc. 3) 19-20.) On the other hand, Defendants suggest that if a preliminary injunction is issued non-H-2A worker wages might be depressed and the government may have to bear the cost of administering an H-2A rule that might be changed by the current Presidential Administration for policy reasons. See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009) (“[T]he development of [2008 Rule] was based in part on the policy positions of the prior Administration with which the current Administration may differ and wish to reconsider . . . . In light of the potential for new rulemaking . . . it would not be an efficient use of limited agency resources, appropriated from taxpayer funds, to continue to attempt to operationalize the [2008 Rule] . . . .”). The court finds that neither of these interests significantly outweigh the other. Accordingly, based on the facts of this case and a forecast of the evidence, the court concludes that its assessment of the other balance-of-hardships factors is controlling.
20

IV. Conclusion For the reasons set forth above, particularly, the
relatively slight amount of harm Defendants will suffer if an injunction is issued and the substantial likelihood that Plaintiffs will ultimately succeed on the merits, IT IS ORDERED that Plaintiffs’ Motion for Preliminary Injunction (Doc. 2) is GRANTED.
This the 1st day of July 2009. United States District Judge
21

 
 Case: 09-1878 Document: 36 Date Filed: 11/19/2009 Page: 1
FILED: November 19, 2009
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 09-1878 (1:09-cv-00411-WO-WWD)
___________________
NORTH CAROLINA GROWERS' ASSOCIATION, INCORPORATED; NATIONAL CHRISTMAS TREE ASSOCIATION; FLORIDA FRUIT & VEGETABLE ASSOCIATION; VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INCORPORATED; SNAKE RIVER FARMERS ASSOCIATION; NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS; NORTH CAROLINA CHRISTMAS TREE ASSOCIATION; NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION; FLORIDA CITRUS MUTUAL; NORTH CAROLINA AGRIBUSINESS COUNCIL, INCORPORATED; MAINE FOREST PRODUCTS COUNCIL; ALTA CITRUS, LLC; EVERGLADES HARVESTING & HAULING, INCORPORATED; DESOTO FRUIT & HARVESTING, INCORPORATED; FOREST RESOURCES ASSOCIATION; TITAN PEACH FARMS, INCORPORATED; H-2A USA, INCORPORATED; OVERLOOK HARVESTING COMPANY, LLC,
Plaintiffs - Appellees
v.
HILDA L. SOLIS, In her official capacity as United States Secretary of Labor; UNITED STATES DEPARTMENT OF LABOR,
Defendants - Appellants
and
JANET NAPOLITANO, In her official capacity as United States Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendants
UNITED FARM WORKERS; JAMES CEASE; MARIO CENTENO-RODRIGUEZ; JUAN CISNEROS-IBARRA; LUIS ENRIQUE CISNEROS-IBARRA; REYMUNDO GUTIERREZ; CARLOS LUIS GUZMAN-CENTENO; JOSE RAUL GUZMAN-CENTENO; ABELARDO HERNANDEZ-AGUAS; GREGORIO HUERTAS-SAMANO; PEDRO IBARRAAVILA; ATANACIO LUGO-RINCON; OBDULA MALDONADO-ABELLANEDA; MIGUEL
Case 1:09-cv-00411-WO-LPA Document 88 Filed 11/20/09 Page 1 of 2

Case: 09-1878 Document: 36 Date Filed: 11/19/2009 Page: 2 ANGEL OLGUIN-HERNANDEZ; ARTURO OLGUIN-MONROY; OMERA RODRIGUEZGUZMAN; DESIDERIO TOVAR-ZAPATA; ALEJANDRO TREJO-LEON,
Intervenor/Defendant ___________________ O R D E R ___________________
Upon review of submissions relative to the motion for stay pending appeal, the Court denies the motion.
Entered at the direction of Judge Wilkinson with the concurrence of Judge Niemeyer and Judge Shedd.
For the Court /s/ Patricia S. Connor, Clerk
Case 1:09-cv-00411-WO-LPA Document 88 Filed 11/20/09 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

NORTH CAROLINA GROWERS’

)

ASSOCIATION, INC., NATIONAL

)

CHRISTMAS TREE ASSOCIATION,

)

FLORIDA FRUIT AND

)

VEGETABLE ASSOCIATION, INC., )

VIRGINIA AGRICULTURAL GROWERS )

ASSOCIATION, INC., SNAKE

)

RIVER FARMERS ASSOCIATION,

)

NATIONAL COUNCIL OF

)

AGRICULTURAL EMPLOYERS,

)

NORTH CAROLINA CHRISTMAS

)

TREE ASSOCIATION, NORTH

)

CAROLINA PICKLE PRODUCERS

)

ASSOCIATION, FLORIDA CITRUS

)

MUTUAL, NORTH CAROLINA

)

AGRIBUSINESS COUNCIL, MAINE

)

FOREST PRODUCTS COUNCIL,

)

ALTA CITRUS, LLC, EVERGLADES )

HARVESTING AND HAULING, INC., )

DESOTO FRUIT AND HARVESTING, )

INC., FOREST RESOURCES

)

ASSOCIATION, TITAN PEACH

)

FARMS, INC., H-2A USA, INC., )

and OVERLOOK HARVESTING

)

COMPANY, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

HILDA L. SOLIS, in her

)

official capacity as United

)

States Secretary of Labor,

)

UNITED STATES DEPARTMENT OF

)

LABOR, JANET NAPOLITANO, in

)

her official capacity as

)

United States Secretary of

)

Homeland Security, and

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

)

Defendants.

)

1:09CV411

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge Presently before the court is Applicant Interveners’ Motion
to Intervene as Parties Defendant (Doc. 37) pursuant to Rule 24 of the Federal Rules of Civil Procedure. All parties have submitted briefs (Docs. 38, 42, 63, 65, and 69), and this motion is now ripe for decision. For the reasons set forth herein, Applicant Interveners’ Motion to Intervene as Parties Defendant is granted pursuant to Rule 24(b).
Rule 24(b) allows the court to permit intervention, upon timely motion, of any party who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Applicant Interveners’ filings thus far raise several issues with such common questions of law and fact. Those common questions include allegations of the lack of irreparable harm to Plaintiffs in the absence of an injunction, the existence of harm caused by the injunction if issued, and the defense that the rules promulgated by the Department of Labor are valid. (App. Int.’s Resp. Br. (Doc. 39) 10-17); (App. Int.’s Br. (Doc. 54) 1-4.) See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir. 2002) (upholding intervention of defendant environmental groups under Rule 24(b) in suit against Secretary of Agriculture to challenge regulations). Unlike Rule 24(a), Rule 24(b) permissive intervention has no “requirement that the
2

intervenor shall have a direct personal or pecuniary interest in the subject of the litigation,” Kootenai at 1108 (quoting SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 459 (1940)). Even though Applicant Intervenors allege a personal or pecuniary interest in this litigation, a finding to that effect is not required for intervention under Rule 24(b), and this court does not reach that issue.
In determining whether to grant a motion to intervene, “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Having considered the parties’ arguments and any potential delay or prejudice, this court finds that the motion to intervene was timely filed on June 18, 2009. This court further finds that intervention will not unduly delay or prejudice the proceedings. Therefore, Applicant Interveners’ Motion to Intervene as Parties Defendant will be granted. Because the motion to intervene will be granted pursuant to Rule 24(b), this court does not reach the issue of whether Applicant Intervenors should be allowed to intervene as of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure.
For the reasons set forth herein, it is hereby ORDERED that Applicant Intervenors Motion to Intervene as Parties Defendant (Doc. 37) is GRANTED.
3

This the 3rd day of December 2009. United States District Judge
4

 
 Case: 09-2356 Document: 43 Date Filed: 03/30/2010 Page: 1
FILED: March 30, 2010
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 09-2356 (1:09-cv-00411-WO-WWD)
___________________
NORTH CAROLINA GROWERS' ASSOCIATION, INCORPORATED; NATIONAL CHRISTMAS TREE ASSOCIATION; FLORIDA FRUIT & VEGETABLE ASSOCIATION; VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INCORPORATED; SNAKE RIVER FARMERS ASSOCIATION; NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS; NORTH CAROLINA CHRISTMAS TREE ASSOCIATION; NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION; FLORIDA CITRUS MUTUAL; NORTH CAROLINA AGRIBUSINESS COUNCIL, INCORPORATED; MAINE FOREST PRODUCTS COUNCIL; ALTA CITRUS, LLC; EVERGLADES HARVESTING & HAULING, INCORPORATED; DESOTO FRUIT & HARVESTING, INCORPORATED; FOREST RESOURCES ASSOCIATION; TITAN PEACH FARMS, INCORPORATED; H-2A USA, INCORPORATED; OVERLOOK HARVESTING COMPANY, LLC,
Plaintiffs - Appellees
v.
HILDA L. SOLIS, In her official capacity as United States Secretary of Labor; UNITED STATES DEPARTMENT OF LABOR; JANET NAPOLITANO, In her official capacity as United States Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendants
and
UNITED FARM WORKERS; JAMES CEASE; MARIO CENTENO-RODRIGUEZ; JUAN CISNEROS-IBARRA; LUIS ENRIQUE CISNEROS-IBARRA; REYMUNDO GUTIERREZ; CARLOS LUIS GUZMAN-CENTENO; JOSE RAUL GUZMAN-CENTENO; ABELARDO HERNANDEZ-AGUAS; GREGORIO HUERTAS-SAMANO; PEDRO IBARRAAVILA; ATANACIO LUGO-RINCON; OBDULA MALDONADO-ABELLANEDA; MIGUEL ANGEL OLGUIN-HERNANDEZ; ARTURO OLGUIN-MONROY; OMERA RODRIGUEZGUZMAN; DESIDERIO TOVAR-ZAPATA; ALEJANDRO TREJO-LEON,
Intervenors/Defendants - Appellants
Case 1:09-cv-00411-WO-LPA Document 109 Filed 03/30/10 Page 1 of 2

Case: 09-2356 Document: 43 Date Filed: 03/30/2010 Page: 2
___________________ O R D E R
___________________ Upon consideration of the motion to dismiss this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no opposition, the Court grants the motion.
For the Court /s/ Patricia S. Connor, Clerk
Case 1:09-cv-00411-WO-LPA Document 109 Filed 03/30/10 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA GROWERS’

)

ASSOCIATION, INC., NATIONAL

)

CHRISTMAS TREE ASSOCIATION,

)

FLORIDA FRUIT &

)

VEGETABLE ASSOCIATION, INC.,

)

VIRGINIA AGRICULTURAL GROWERS

)

ASSOCIATION, INC., SNAKE

)

RIVER FARMERS ASSOCIATION,

)

NATIONAL COUNCIL OF

)

AGRICULTURAL EMPLOYERS,

)

NORTH CAROLINA CHRISTMAS

)

TREE ASSOCIATION, NORTH

)

CAROLINA PICKLE PRODUCERS

)

ASSOCIATION, FLORIDA CITRUS

)

MUTUAL, NORTH CAROLINA

)

AGRIBUSINESS COUNCIL, INC.,

)

MAINE FOREST PRODUCTS COUNCIL,

)

ALTA CITRUS, LLC, EVERGLADES

)

HARVESTING & HAULING, INC.,

)

DESOTO FRUIT AND HARVESTING,

)

INC., FOREST RESOURCES

)

ASSOCIATION, TITAN PEACH

)

FARMS, INC., H-2A USA, INC.,

)

and OVERLOOK HARVESTING

)

COMPANY, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

HILDA L. SOLIS, in her

)

official capacity as United

)

States Secretary of Labor,

)

UNITED STATES DEPARTMENT OF

)

LABOR, JANET NAPOLITANO, in

)

her official capacity as

)

United States Secretary of

)

Homeland Security, and

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

)

Defendants,

)

)

and

)

1:09CV411

UNITED FARM WORKERS,

)

JAMES CEASE,

)

MARIO CENTENO-RODRIGUEZ,

)

JUAN CISNEROS-IBARRA,

)

LUIS ENRIQUE CISNEROS-IBARRA,

)

REYMUNDO GUTIERREZ,

)

CARLOS LUIS GUZMAN-AVILA,

)

JUAN LUIS GUZMAN-CENTENO,

)

JOSE RAUL GUZMAN-CENTENO,

)

ABELARDO HERNANDEZ-AGUAS,

)

GREGORIO HUERTAS-SAMANO,

)

PEDRO IBARRA-AVILA,

)

ATANACIO LUGO-RINCON,

)

OBDULA MALDONADO-ABELLANEDA,

)

MIGUEL ANGEL OLGUIN-HERNANDEZ,

)

ARTURO OLGUIN-MONROY,

)

OMERA RODRIGUEZ-GUZMAN,

)

DESIDERIO TOVAR-ZAPATA, and

)

ALEJANDRO TREJO-LEON,

)

on behalf of themselves and

)

all others similarly situated,

)

)

Defendant-Intervenors.

)

MEMORANDUM OPINION AND ORDER OSTEEN, JR., DISTRICT JUDGE.
Before the court are Plaintiffs’ Motion for Summary Judgment (Doc. 124) and Defendant-Intervenors’ Motions for Partial Summary Judgment (Docs. 131, 132). Plaintiffs allege that the Department of Labor (“DOL”) suspended a rule and imposed a new rule without following the requisite procedures for “rule making” as set forth in the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553 and 701 et seq. All Defendants contend that DOL’s rule making complied with the requirements of the APA. Defendant-Intervenors
2

also contend that they are entitled to the recovery of certain wages based upon DOL’s rules which were not implemented during this court’s preliminary injunction.
Also pending before this court is Defendant-Intervenors Motion for Leave to File Supplemental Memorandum Regarding Mootness (“Supplemental Memorandum”). (Doc. 138.) Because that memo addresses the issue of mootness in relation to the summary judgment pleadings, the motion will be allowed. DefendantIntervenors are not required to separately file the Supplemental Memorandum.
For the reasons set forth herein, Plaintiffs’ motion for summary judgment will be granted and Defendant-Intervenors’ motions for partial summary judgment will be denied. I. FACTS1
The Immigration and Nationality Act of 1952, as amended, provides a means by which employers may legally obtain temporary services of foreign agricultural workers when American workers are not available and classifies those foreign workers as “(H)(ii)(a)” (“H-2A”). 8 U.S.C. § 1101(a)(15)(H)(ii)(a). The Department of Labor and Department of Homeland Security are the
1 The relevant facts of this case are largely undisputed and are more thoroughly set out in Plaintiffs’ brief in support of their motion for preliminary injunction (Doc. 3) and in the Federal Defendants’ response to the motion for preliminary injunction (Doc. 36). The facts are summarized in this opinion and order.
3

agencies responsible for creating the regulations necessary to implement the H-2A program and for administering that program. The H-2B program is a similar program originally directed to logging workers in the forest products industry.2 See id. § 1101(a)(15)(H)(ii)(b).
Congress delegated to the Secretary of Labor the authority to implement the H-2A certification program through administrative rule making. See Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 301(e), 100 Stat. 3359. Farmers must be “certified” by DOL to participate in the H-2A program. To obtain certification, the contracts the farmers enter into with their workers must comply with the H-2A rules and regulations in effect at that time. See 20 C.F.R. § 655.105 (removed Feb. 12, 2010). The rules and regulations cover a variety of issues related to the H-2A program, including wages to be paid the foreign workers. See 8 U.S.C. § 1188(a)(1); see also, e.g., 20 C.F.R. § 655.105(g) (removed Feb. 12, 2010). For example, the Adverse Effective Wage Rate (“AEWR”) sets the wage rate, and the AEWRs set by DOL’s H-2A rules affect the wage rates in the applicable labor markets. A rule raising the AEWR
2 Under the 1987 Rule, the H-2A and H-2B programs had separate rules. When the 2008 Rule was implemented, the H-2B program was incorporated into the H-2A process. Thus, for purposes of this order, the rule making process is referred to as the H-2A program even though the H-2B rules are affected by this rule making process as well.
4

increases the market wage rate. Correspondingly, a rule lowering the AEWR decreases the market wage rate. See Indus. Holographics, Inc. v. Donovan, 722 F.2d 1362, 1367 (7th Cir. 1983) (stating that the assumption that employment of an alien at wages below the prevailing wage will tend to affect the wages of American workers is not arbitrary or capricious).
In 1987, DOL promulgated a series of regulations governing the H-2A program (collectively referred to herein as “the 1987 Rule”) that largely remained in effect until 2008, when DOL promulgated new H-2A regulations (“the 2008 Rule”) and eliminated the 1987 Rule. The 2008 Rule became effective on January 17, 2009. See Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110, 77,110 (Dec. 18, 2008). The 2008 Rule was created to fix various perceived problems with the 1987 Rule. See id. For example, the 2008 Rule was designed to eliminate duplicative H-2A activities, more rigorously penalize noncompliant entities, and protect workers. Id.
On March 17, 2009, DOL issued a notice of proposed rule making (“the 2009 NPRM”), proposing to “suspend” the 2008 Rule for nine months and reinstate the 1987 Rule “[t]o avoid the regulatory vacuum that would result” from that suspension. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 11,408, 11,408 (Mar. 17, 2009). DOL specified a ten-day
5

comment period for the 2009 NPRM. Id. The 2009 NPRM advised
interested parties that DOL would not consider certain comments
in promulgating any rule that might arise from the notice:
Please provide written comments only on whether the Department should suspend the December 18, 2008 final rule for further review and consideration of the issues that have arisen since the final rule’s publication. Comments concerning the substance or merits of the December 18, 2008 final rule or the prior rule will not be considered.
Id. (emphasis added). The “prior rule” reference was to the 1987
Rule, which was to be reinstated during the suspension period.
On May 29, 2009, consistent with the 2009 NPRM, DOL issued a
new H-2A rule (“the Substitution Rule”), scheduled to take effect
on June 29, 2009, and summarized as follows:
The Department of Labor (DOL or Department) is suspending the H-2A Final Rule published on December 18, 2008 and in effect as of January 17, 2009. . . . To ensure continued functioning of the H-2A program, the Department is republishing and reinstating the regulations in place on January 16, 2009 for a period of 9 months, after which the Department will either have engaged in further rulemaking or lift the suspension.
Temporary Employment of H-2A Aliens in the United States, 74 Fed.
Reg. 25,972, 25,972 (May 29, 2009). With regard to the scope-of-
comment restriction contained in the 2009 NPRM, the Substitution
Rule states:
[I]n the Notice, the Department requested that parties limit their comments to the issue of whether the Department should suspend the December 2008 Rule for further review and consideration of the issues that have arisen since the December 2008 Rule’s publication. Though all comments have been reviewed, only those comments responding to issues on which the Department
6

sought comment were considered in this Final Rule. Id. at 25,973.
On June 9, 2009, North Carolina Growers’ Association, Inc.; National Christmas Tree Association; Florida Fruit & Vegetable Association, Inc.; Virginia Agricultural Growers Association, Inc.; Snake River Farmers Association; National Council of Agricultural Employers; North Carolina Christmas Tree Association; North Carolina Pickle Producers Association; Florida Citrus Mutual; North Carolina Agribusiness Council, Inc.; Maine Forest Products Council; Alta Citrus, LLC; Everglades Harvesting & Hauling, Inc.; Desoto Fruit and Harvesting, Inc.; Forest Resources Association; Titan Peach Farms, Inc.; H-2A USA, Inc.; and Overlook Harvesting Company, LLC (collectively, “Plaintiffs”) filed a Complaint naming as defendants DOL, Hilda L. Solis in her official capacity as Secretary of DOL, the Department of Homeland Security (“DHS”), and Janet Napolitano in her official capacity as Secretary of DHS (collectively, “the Federal Defendants”). (Doc. 1 at 1-3.) Plaintiffs allege that the Federal Defendants violated the APA, 5 U.S.C. §§ 553 and 701 et seq., in formulating the Substitution Rule. (Compl. (Doc. 1) ¶¶ 54-86.) Plaintiffs are all farm operators or foresters that have an interest in, and are impacted by, the H-2A and H-2B programs and the regulations of those programs.
On June 18, 2009, United Farm Workers, James Cease, Mario
7

Centeno-Rodriguez, Juan Cisneros-Ibarra, Luis Enrique CisnerosIbarra, Reymundo Gutierrez, Carlos Luis Guzman-Avila, Juan Luis Guzman-Centeno, Jose Raul Guzman-Centeno, Abelardo HernandezAguas, Gregorio Huertas-Samano, Pedro Ibarra-Avila, Atanacio Lugo-Rincon, Obdula Maldonado-Abellaneda, Miguel Angel OlguinHernandez, Arturo Olguin-Monroy, Omera Rodriguez-Guzman, Desiderio Tovar-Zapata, and Alejandro Trejo-Leon (collectively, “Defendant-Intervenors”) filed a Motion to Intervene as Parties Defendant (Doc. 37). The court granted Defendant-Intervenors’ motion to intervene. (Doc. 90 at 3.) Defendant-Intervenors support the Substitution Rule and, pursuant to that rule, filed counterclaims seeking to recover the higher wage rates payable under the Substitution Rule’s AEWR rather than the lower wage rates which were actually implemented pursuant to the 2008 Rule during the period in which this court’s injunction was pending. This wage rate issue that arose as a result of the two conflicting rules is referred to herein as the “Wage Differential.”
After this court entered an order granting Plaintiffs’ motion for a preliminary injunction (Doc. 59), DOL filed a new notice of proposed rule making seeking to suspend the 2008 Rule and implement a new rule. See Temporary Agricultural Employment of H-2A Aliens in the United States, 74 Fed. Reg. 45,906 (Sept. 4, 2009). On February 12, 2010, DOL issued a final rule
8

regarding the H-2A program. See Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884 (Feb. 12, 2010) (“the 2010 Rule”). The 2010 Rule became effective March 15, 2010, and is not at issue in this case. However, the applicable DOL rules during the time period of June 2009 through March 2010, when implementation of the Substitution Rule was enjoined by this court pending a final resolution on the merits, are at issue. All parties agree that during that time period, DOL administered the H-2A program pursuant to the 2008 Rule and did not implement the Substitution Rule. The parties also agree that there is a Wage Differential between the 2008 Rule as administered during the pendency of the injunction and the AEWR that would have been implemented pursuant to the Substitution Rule.
II. LEGAL STANDARDS
A. Mootness as to the Federal Defendants
In response to Plaintiffs’ motion for summary judgment, the Federal Defendants contend that
Plaintiffs’ claims for declaratory and injunctive relief based on [the Substitution Rule] have been rendered moot and Plaintiffs no longer have a live case or controversy as to the Federal Defendants. Because federal courts are forbidden from entertaining actions without a case or controversy, this Court should dismiss Plaintiffs’ claims against the Federal Defendants. (Defs.’ Opp’n Pls.’ Mot. Summ. J. (Doc. 126) at 4.) Plaintiffs agree with the Federal Defendants that the issues in this case
9

are moot as to the Federal Defendants except to note that Plaintiffs will be seeking attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. (See generally Pls.’ Reply Government Defs. (Doc. 128) at 1-2.)
Plaintiffs’ Complaint seeks both declaratory and injunctive relief with respect to the Substitution Rule. (Doc. 1 at 34.)
To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. . . .
When a legislature amends or repeals a statute, a case challenging the prior law can become moot even where re-enactment of the statute at issue is within the power of the legislature. Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006) (internal quotation marks omitted). Additionally, declaratory relief such as Plaintiffs have sought in this case may be entered only when “the challenged government activity . . . is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” See Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974). “The question is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id. (internal quotation marks omitted). This court agrees with the parties that because the H-2A and
10

H-2B programs were administered under the 2008 Rule following
this court’s preliminary injunction until implementation of the
2010 Rule, this case is moot as to the Federal Defendants.
Accordingly, this case will be dismissed as moot as to the
Federal Defendants.3 However, as argued by Plaintiffs, because
of the Wage Differential issue and related counterclaims, this
matter is not moot as to Defendant-Intervenors. This court will
therefore address summary judgment as to the remaining claims.4
B. Summary Judgment
Summary judgment is appropriate where an examination of the
pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
fact exists and that the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56. The moving party bears
the burden of initially demonstrating the absence of a genuine
3 5 U.S.C. § 702 provides “[t]hat any mandatory or injunctive decree shall specify the Federal officer or officers. . .personally responsible for compliance. This order contains an injunction. Should the Federal Defendants be necessary parties because of injunctive relief, then in the alternative this court would apply the same analysis to Plaintiffs’ claims against the Federal Defendants as set forth herein with respect to the Intervenor-Defendants.
4 All parties’ summary judgment and partial summary judgment briefs have argued either in response to, or in accordance with, the substantive arguments contained in the Federal Defendants’ briefs. This court has considered the Federal Defendants’ substantive arguments as they relate to Plaintiffs’ motion for summary judgment and Defendant-Intervenors’ motions for partial summary judgment as adopted or responded to by Plaintiffs or Defendant-Intervenors.
11

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party has met that burden, then the nonmoving party must persuade the court that a genuine issue remains for trial by “go[ing] beyond the pleadings” and introducing evidence that establishes “specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).
In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court must view the facts in the light most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor. Id. at 255. A mere factual dispute is insufficient to prevent summary judgment; the fact in question must be material, and the dispute must be genuine. Fed. R. Civ. P. 56; Anderson, 477 U.S. at 247-48. Material facts are those facts necessary to establish the elements of a party’s cause of action. Anderson, 477 U.S. at 248. A dispute is only “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
C. Review of Agency Action “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review
12

thereof.” 5 U.S.C. § 702. In reviewing agency action, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did. De novo factfinding by the district court is allowed only in limited circumstances.” Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).
The focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-744 (1985) (internal quotation marks and citation omitted). “The APA specifically contemplates judicial review on the basis of the agency record compiled in the course of informal agency action in which a hearing has not occurred.” Id. at 744. The Federal Defendants have filed the agency record with this court and this matter is ripe for review. See Notice of Paper Filing (Doc. 123). Judicial review of agency action is narrow. Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court may not substitute its judgment for that of the agency. Id. However, an agency’s action may be set aside if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in
13

accordance with law.” 5 U.S.C. § 706(2)(A). In conducting rule making pursuant to the APA, “the agency
must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation marks omitted).
Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies . . . . Id.; see also Ohio River Valley Envtl. Coal. v. Kempthorne, 473 F.3d 94, 102 (4th Cir. 2006). “Although the scope of review is narrow, the agency must nevertheless explain the evidence which is available, and must offer a rational connection between the facts found and the choice made.” Ohio River Valley, 473 F.3d at 102-103.
III. ANALYSIS
Under the APA, “rule making” is defined as an agency’s “process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). Section 553(c) of the APA requires that agencies “give interested persons an opportunity to participate in the rule making through submission of written data, views, or
14

arguments.”5 Id. § 553(c). This court finds that the two
actions by DOL with respect to the Substitution Rule, that is,
the suspension of the 2008 Rule and reinstatement of the 1987
Rule, constituted “rule making” under §§ 551 and 553.6
In support of their motion for summary judgment, Plaintiffs
5 5 U.S.C. § 553(b) provides that the notice provisions do not apply “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to public interest.” The Federal Defendants do not contend this provision applies, nor is there a finding and brief statement of reasons which would permit suspension of the notice provisions.
6 The Substitution Rule is a “rule” as that term is defined in the APA. Section 551(4) states that a “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). An act also constitutes a “rule” if it is an “approval or prescription for the future” of rates or wages. Id. Here, the Substitution Rule, specifically the component that reinstates the 1987 Rule, constituted a “rule” in that it implements the AEWRs with which Plaintiffs must comply.
Notwithstanding the fact that the Supreme Court has suggested that rule suspensions are permissible, see Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50 n.15 (“We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement . . . .”), it is not settled whether rule suspensions constitute “rule making” under § 551(5) and must therefore comply with § 553(c). Nevertheless, it is not necessary to resolve this issue to determine whether Plaintiffs’ motion for summary judgment should be granted. Here, Defendants did more than just suspend a set of regulations in promulgating the Substitution Rule. In addition to withdrawing a rule, Defendants effectively formulated a new rule by reinstating the 1987 Rule. As stated, the APA’s definition of “rule making” explicitly covers rule formulation. 5 U.S.C. § 551(5) (defining “rule making” as an agency’s “process for formulating, amending, or repealing a rule” (emphasis added)). Accordingly, in order for the Substitution Rule to be valid, DOL must have complied with § 553(c) of the APA in reinstating the 1987 Rule.
15

argue that the 2009 NPRM’s scope-of-comment restriction violated
§ 553(c) of the APA because the restriction prohibited Plaintiffs
from participating in the making of the actual rule that DOL
proposed to implement, that is, the 1987 Rule. See Temporary
Employment of H-2A Aliens in the United States, 74 Fed. Reg.
11,408, 11,408 (Mar. 17, 2009) (“Comments concerning the
substance or merits of the December 18, 2008 final rule or the
prior rule will not be considered.”). Not only did DOL issue an
initial statement advising that it would not consider comments on
the substance or merits of the two rules, DOL in fact refused to
consider comments that it received as to those rules’ substance
and merits. Temporary Employment of H-2A Aliens in the United
States, 74 Fed. Reg. 25,972, 25,973 (May 29, 2009) (“Though all
comments have been reviewed, only those comments responding to
issues on which [DOL] sought comment were considered in this
Final Rule.”).7
With respect to rule making, 5 U.S.C. § 553(c) provides:
After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for
7 In addition to avoiding the APA rule making procedures, this limitation on comment review creates a separate issue with respect to the judicial review provided for in 5 U.S.C. § 702. Because of the comment limitation and the notation that “only those comments responding to issues on which [DOL] sought comment were considered in this Final Rule,” it is difficult for a reviewing court to determine which comments were considered by DOL. Thus, the procedure used by DOL in this rule making is, at best, evasive as to judicial review of substantive provisions.
16

oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. 5 U.S.C. § 553(c). To comply with the notice and comment provisions of § 553(c), “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. DOL refused to accept and consider comments as to the 2008 Rule and the 1987 Rule even though the 2009 NPRM specifically identified substantive issues which would be directly affected by the proposed rule making. Several stated reasons for the 2009 NPRM raise questions as to the propriety of the comment content restriction. However, of particular significance to DOL’s comment restriction is the fact the 2009 NPRM stated that the suspension of the 2008 Rule and the re-implementation of the former H-2A rule were warranted because of “severe economic conditions [now] facing the country.” See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009). If severe economic conditions required a rule suspension and re-implementation of the 1987 Rule, then comments as to the substance and merits of the rules by persons affected are relevant and important. DOL’s refusal to consider such comments constitutes a failure to “give interested persons an opportunity to participate in the rule making through submission
17

of written data, views, or arguments.” See 5 U.S.C. § 553(c).
Additionally, the refusal to consider the merits of the two rules
constitutes a “fail[ure] to consider . . . important aspect[s] of
the problem.” See Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43.
Not surprisingly, individuals providing comments noted the
lack of consideration of the substance and merits as to the
potential economic effects of the agency action. One comment
stated that
[n]owhere in the Federal Register is the economic impact of this precipitous rulemaking addressed by the Department. It is inconceivable that after only six weeks under regulations reviewed and then promulgated in compliance with [the] APA, the Labor Department could ascertain that a return to previous regulations is economically beneficial to the Department, H2A employers or workers.
Comment, Charles T. Hall, Jr., Mar. 21, 2009 (ETA-2008-0001-
1070.1), DOL000113, DOL000114. Similarly, another comment noted:
Our experience has shown the issued Adverse Effect Wage Rate (AEWR) has had an overall detrimental effect on the performance level of our harvesting workers. Under the previous H-2A regulations the AEWR guaranteed wage significantly exceeded both prevailing wage standards and the Florida minimum wage rate. The artificially high AEWR adversely impacted the workers’ motivation to strive for desired productivity levels.
Comment, Ricke Kress, Mar. 26, 2009 (ETA-2008-0001-1156-cp),
DOL000283, DOL000284. While this court makes no finding as to
whether these comments are accurate, the comments do appear to
address the substance and merits of the 2008 Rule and the 1987
Rule and therefore are the type of comments that were not
considered by DOL. Although DOL did note in the Substitution 18

Rule that it received comments about the AEWR, it appears consideration of those comments was limited only to the suspension issue and did not extend to the merits of the choice of rule during the suspension period. See Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,977 (May 29, 2009) (“One of the primary reasons that the new Administration wants to review the December 2008 Rule is precisely to determine whether the generally reduced wage rates under that rule are having a depressive effect on farmworker wages.”). It is clear that DOL determined the substance and merits of the 1987 Rule were appropriate for current conditions during the suspension. DOL did so without considering merits comments and without explaining the substance and merits of its decision.
In addition to the comments DOL received, Plaintiffs have presented evidence that they would have submitted additional comments absent the scope-of-comment restriction contained in the 2009 NPRM. (See Wicker Aff. (Doc. 4-3) at 29 (“Again, as with the rest of the substance of the regulations governing the H-2A program, the NCGA would like an opportunity to comment on specific provisions . . . of the Department’s proposal . . . . But according to the terms set by the Department in the Notice, any comments on these subjects will not be considered . . . .”).) It is undisputed that Plaintiffs were prejudiced by the comment restriction. See Columbia Venture LLC v. S.C. Wildlife Fed’n,
19

562 F.3d 290, 294 (4th Cir.) (per curiam) (“[T]he party who claims deficient notice bears the burden of proving that any such deficiency was prejudicial, and if that party fails to carry its burden, the agency’s decision must be upheld.” (internal quotation marks omitted)), cert. dismissed, 130 S. Ct. 418 (2009). Indeed, the Substitution Rule recognized that at least one affected party objected to the scope-of-comment limitation and had comments it would like to offer. Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,979 (May 29, 2009) (“An agricultural association objected to the Department’s limitation of the scope of comments to the suspension itself, as opposed to comments on the merits or substance . . . . The association stated that it has numerous comments it would like to offer on both the current regulations, as well as the prior regulations . . . .”).
In addition to the economic issues for which no comments as to the substance and merits of the rules were solicited, the Substitution Rule’s reinstatement of the 1987 Rule in its entirety, see id. at 25,973, presents an additional issue for which no comments as to substance or merits were considered. The Fourth Circuit Court of Appeals previously held that a regulation contained within the 1987 Rule was invalid and harmed a party that is a plaintiff in the current action. See U.S. Dep’t of Labor v. N.C. Growers Ass’n, Inc., 377 F.3d 345, 353 (4th Cir. 2004) (“[W]e hold that the cultivation, growing, and harvesting
20

of Christmas trees is agriculture as defined in § 203(f), and that the employees of the Growers are thus exempt from the overtime provisions of the FLSA.”). The issues arising from this classification were noted in at least one comment to DOL. Comment, Gail Greenman, Mar. 26, 2009 (ETA-2008-0001-1169.1), DOL000314, DOL000316 (“Since 2004, Christmas tree growers who have adopted modern practices in the Fourth Circuit have been considered agriculture for purpose[s] of the FLSA. This has not been the case for Christmas tree growers in the rest of the country. Until the Department implemented its current rules, there was a lack of uniform standards across the country as to the classification of Christmas tree operations.”). Because this comment is directed to the merits of the 1987 Rule, the comment would not have been considered. This is another instance in which DOL failed to “examine the relevant data and articulate a satisfactory explanation for its action.” See Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43.
By prohibiting consideration and discussion of the substance and merits of the rules subject to the 2009 NPRM, DOL “failed to consider an important aspect of the problem” and failed to “offer a rational connection between the facts found and the choice made.” See id. at 43, 52 (internal quotation marks omitted). Although Plaintiffs and Defendant-Intervenors alike might be familiar with the 1987 Rule, Defendant-Intervenors have presented no authority which supports a proposition that temporary rule
21

reinstatements should be evaluated under a different legal
standard than that which is used in assessing the promulgation of all other types of rules.8
As a result of the comment restrictions, the undisputed fact
that substantive comments were submitted and not considered, and
the fact that substantive comments were not submitted as a result
of the scope-of-comment limitations contained in the 2009 NPRM,
this court finds that the Federal Defendants’ formulation of the
Substitution Rule was arbitrary and capricious as that term is
used in 5 U.S.C. § 706(2)(A). DOL openly failed to consider
comments concerning the substance and merits of the suspended
rule and the rule which was reinstated. See Temporary Employment
of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,973
(May 29, 2009) (“Though all comments have been reviewed, only
those comments responding to issues on which [DOL] sought comment
were considered in this Final Rule.”). Defendant-Intervenors
have not presented any authority or argument which adequately
explains the Federal Defendants’ refusal to consider the
substance and merits of the 1987 Rule, nor have they explained
why the evaluation of the substance and the merits of the 1987
8 The argument that reinstatement was necessary to avoid a regulatory vacuum created by the suspension is not persuasive because the suspension was self-imposed by the agency. Notwithstanding the failure to comply with the APA, the suspension process urged by the Federal Defendants, if taken to its extreme, would permit a complete circumvention of the APA and judicial review by the enactment of suspensions and temporary implementations.
22

Rule and the 2008 Rule were not relevant issues that DOL was required to consider. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (“[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” (internal quotation marks omitted)).
For the reasons set forth herein, this court finds that Plaintiffs’ Motion for Summary Judgment (Doc. 124) should be granted as to Defendant-Intervenors. In light of this ruling and following careful review, this court declines to impose the measures suggested by Defendant-Intervenors in their Supplemental Memorandum. (See Doc. 138 Ex. 1.) IV. CONCLUSION
For the reasons set forth herein, IT IS ORDERED that Defendant-Intervenors’ Motion for leave to File Supplemental Memorandum Regarding Mootness (Doc. 138) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 124) is DENIED AS MOOT as to the Federal Defendants. This court retains jurisdiction as to the Federal Defendants pending a final order as to Plaintiffs’ claim for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 124) is GRANTED as to Defendant-Intervenors and
23

Defendant-Intervenors’ Motions for Partial Summary Judgment (Docs. 131, 132) are DENIED.
IT IS FURTHER ORDERED that a PERMANENT INJUNCTION is hereby issued, enjoining the implementation of the Substitution Rule (Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972 (May 29, 2009)) and denying recovery by Defendant-Intervenors pursuant to their counterclaims by or under the rules set out in Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972 (May 29, 2009).
IT IS FURTHER ORDERED that Defendant-Intervenors’ claims are DISMISSED WITH PREJUDICE.
This the 4th day of October 2011.
United State District Judge
24

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NORTH CAROLINA GROWERS’

)

ASSOCIATION, INC., NATIONAL

)

CHRISTMAS TREE ASSOCIATION,

)

FLORIDA FRUIT &

)

VEGETABLE ASSOCIATION, INC.,

)

VIRGINIA AGRICULTURAL GROWERS

)

ASSOCIATION, INC., SNAKE

)

RIVER FARMERS ASSOCIATION,

)

NATIONAL COUNCIL OF

)

AGRICULTURAL EMPLOYERS,

)

NORTH CAROLINA CHRISTMAS

)

TREE ASSOCIATION, NORTH

)

CAROLINA PICKLE PRODUCERS

)

ASSOCIATION, FLORIDA CITRUS

)

MUTUAL, NORTH CAROLINA

)

AGRIBUSINESS COUNCIL, INC.,

)

MAINE FOREST PRODUCTS COUNCIL,

)

ALTA CITRUS, LLC, EVERGLADES

)

HARVESTING & HAULING, INC.,

)

DESOTO FRUIT AND HARVESTING,

)

INC., FOREST RESOURCES

)

ASSOCIATION, TITAN PEACH

)

FARMS, INC., H-2A USA, INC.,

)

and OVERLOOK HARVESTING

)

COMPANY, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

HILDA L. SOLIS, in her

)

official capacity as United

)

States Secretary of Labor,

)

UNITED STATES DEPARTMENT OF

)

LABOR, JANET NAPOLITANO, in

)

her official capacity as

)

United States Secretary of

)

Homeland Security, and

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY,

)

)

Defendants,

)

)

and

)

1:09CV411

Case 1:09-cv-00411-WO-LPA Document 143 Filed 10/31/11 Page 1 of 3

UNITED FARM WORKERS,

)

JAMES CEASE,

)

MARIO CENTENO-RODRIGUEZ,

)

JUAN CISNEROS-IBARRA,

)

LUIS ENRIQUE CISNEROS-IBARRA,

)

REYMUNDO GUTIERREZ,

)

CARLOS LUIS GUZMAN-AVILA,

)

JUAN LUIS GUZMAN-CENTENO,

)

JOSE RAUL GUZMAN-CENTENO,

)

ABELARDO HERNANDEZ-AGUAS,

)

GREGORIO HUERTAS-SAMANO,

)

PEDRO IBARRA-AVILA,

)

ATANACIO LUGO-RINCON,

)

OBDULA MALDONADO-ABELLANEDA,

)

MIGUEL ANGEL OLGUIN-HERNANDEZ,

)

ARTURO OLGUIN-MONROY,

)

OMERA RODRIGUEZ-GUZMAN,

)

DESIDERIO TOVAR-ZAPATA, and

)

ALEJANDRO TREJO-LEON,

)

on behalf of themselves and

)

all others similarly situated,

)

)

Defendant-Intervenors.

)

ORDER Plaintiffs’ Complaint contains a request for an award of costs and reasonable attorney fees as to the Department of Labor (“DOL”), Hilda L. Solis in her official capacity as Secretary of DOL, the Department of Homeland Security (“DHS”), and Janet Napolitano in her official capacity as Secretary of DHS (collectively, “the Federal Defendants”). (Compl. (Doc. 1) at 35.) During the summary judgment briefing, Plaintiffs again stated their intention to seek an award of attorney fees as to the Federal Defendants. (Pls.’ Reply to Gov. Defs. (Doc. 128) at 1.)

Case 1:09-cv-00411-WO-LPA Document 143 Filed 10/31/11 Page 2 of 3

In light of the conclusion of substantive issues in this matter, this court finds no reason to delay consideration of Plaintiffs’ request for attorney fees. Accordingly, Plaintiffs are directed to submit such briefs and affidavits as may be appropriate to resolve any claim for attorney fees within thirty (30) days of this Order. The Federal Defendants are granted an opportunity to respond to Plaintiffs’ motion, as appropriate, in accordance with the Federal Rules of Civil Procedure and the Local Rules of Practice and Procedure. Plaintiffs may file a reply.
This the 31st day of October 2011. United States District Judge
Case 1:09-cv-00411-WO-LPA Document 143 Filed 10/31/11 Page 3 of 3

 
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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NORTH CAROLINA GROWERS’



ASSOCIATION, INCORPORATED;

NATIONAL CHRISTMAS TREE

ASSOCIATION; FLORIDA FRUIT &

VEGETABLE ASSOCIATION; VIRGINIA

AGRICULTURAL GROWERS

ASSOCIATION, INCORPORATED; SNAKE

RIVER FARMERS ASSOCIATION;

NATIONAL COUNCIL OF

AGRICULTURAL EMPLOYERS; NORTH

CAROLINA CHRISTMAS TREE

ASSOCIATION; NORTH CAROLINA

PICKLE PRODUCERS ASSOCIATION;

FLORIDA CITRUS MUTUAL; NORTH



CAROLINA AGRIBUSINESS COUNCIL,

INCORPORATED; MAINE FOREST

PRODUCTS COUNCIL; ALTA CITRUS,

LLC; EVERGLADES HARVESTING &

HAULING, INCORPORATED; DESOTO

FRUIT & H ARVESTING,

INCORPORATED; FOREST RESOURCES

ASSOCIATION; TITAN PEACH FARMS,

INCORPORATED; H-2A USA,

INCORPORATED; OVERLOOK

HARVESTING COMPANY, LLC,

Plaintiffs-Appellees,

v.



No. 11-2235

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2

NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW

UNITED FARM WORKERS; JAMES



CEASE; MARIO CENTENO-RODRIGUEZ;

JUAN CISNEROS-IBARRA; LUIS

ENRIQUE CISNEROS-IBARRA;

REYMUNDO GUTIERREZ; CARLOS

LUIS GUZMAN-CENTENO; JOSE RAUL

GUZMAN-CENTENO; ABELARDO

HERNANDEZ-AGUAS; GREGORIO

HUERTAS-SAMANO; PEDRO IBARRA-

AVILA; ATANACIO LUGO-RINCON;

OBDULA MALDONADO-ABELLANEDA;

MIGUEL ANGEL OLGUIN-HERNANDEZ;

ARTURO OLGUIN-MONROY; OMERA

RODRIGUEZ-GUZMAN; DESIDERIO

 TOVAR-ZAPATA; ALEJANDRO TREJO-
LEON,

Intervenors/Defendants-Appellants,

and

HILDA L. S OLIS, in her official capacity as United States Secretary of Labor; U NITED STATES DEPARTMENT OF LABOR; JANET NAPOLITANO, in her official capacity as United States Secretary of Homeland Security; U NITED STATES DEPARTMENT OF HOMELAND SECURITY,

Defendants.



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NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW

3

HOWARD BERMAN; JUDY CHU;



GEORGE MILLER; LYNN WOOLSEY,

 Amici Supporting Appellants,

USA FARMERS, INC.,

 Amicus Supporting Appellees.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Jr., District Judge. (1:09-cv-00411-WO-LPA)
Argued: October 23, 2012

Decided: December 21, 2012 Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson wrote a separate concurring opinion.
COUNSEL
ARGUED: Naomi Ruth Tsu, SOUTHERN POVERTY LAW CENTER, Atlanta, Georgia, for Appellants. Robin Elizabeth Shea, CONSTANGY, BROOKS & SMITH, LLC, WinstonSalem, North Carolina, for Appellees. ON BRIEF: Andrew H. Turner, BUESCHER, GOLDHAMMER & KELMAN, Denver, Colorado; Gregory S. Schell, MIGRANT FARMWORKER JUSTICE PROJECT, Lake Worth, Florida; Robert

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NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW

J. Willis, LAW OFFICE OF ROBERT J. WILLIS, Raleigh, North Carolina, for Appellants. William R. Loftis, Jr., CONSTANGY, BROOKS & SMITH, LLC, Winston-Salem, North Carolina, for Appellees. Jonathan G. Cedarbaum, Lillian Howard Potter, Annie L. Owens, WILMER CUTLER PICKERING HALE AND DORR, LLP, Washington, D.C., for Amici Supporting Appellants. Leon R. Sequeira, SEYFARTH SHAW LLP, Washington, D.C., for Amicus Supporting Appellees.

OPINION
BARBARA MILANO KEENAN, Circuit Judge:
This appeal involves a regulatory action by the Department of Labor (the Department), which suspended various regulations for temporary agricultural workers and reinstated other prior regulations. We primarily consider: (1) whether the Department’s action constituted "rule making" under the Administrative Procedure Act (the APA), 5 U.S.C. §§ 553, and 701 through 706; and (2) if the action was "rule making," whether the Department satisfied the APA’s "notice and comment" requirements.
We conclude that the district court correctly determined that the Department: (1) engaged in "rule making" when reinstating the prior regulations; and (2) failed to comply with the notice and comment procedures mandated by the APA. We also conclude that the Department did not invoke the "good cause exception" provided by the APA to excuse its failure to comply with these notice and comment requirements. Accordingly, we hold that the district court did not err in invalidating the Department’s action on the ground that it was arbitrary and capricious.

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5

I.

1. The 1987 Regulations

In 1986, Congress passed the Immigration Reform and Control Act amendments to the Immigration and Nationality Act, which permitted the temporary admission of foreign workers to engage in agricultural jobs in the United States (the H-2A program). See 8 U.S.C. § 1101(a)(15)(H)(ii)(a). In 1987, the Department promulgated regulations governing the H-2A program to effectuate Congress’ intent that domestic agricultural workers (U.S. workers) be given preference over foreign agricultural workers (H-2A workers), and that the employment of H-2A workers would not adversely affect the wages or working conditions of U.S. workers (collectively, the 1987 regulations, or the 1987 rule). See Labor Certification Process for the Temporary Employment of Aliens in Agriculture; Adverse Effect Wage Rate Methodology, 54 Fed. Reg. 28,037 (July 5, 1989); Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging, 52 Fed. Reg. 20,496 (June 1, 1987). An agricultural employer seeking to participate in the H-2A program is required to apply with the Department and certain other federal agencies, certifying that there are insufficient U.S. workers available to perform work for the employer and agreeing to abide by requirements regarding wages, housing, and working conditions. See 52 Fed. Reg. at 20,513-20,516.

The 1987 regulations required, among other things, that participating employers pay H-2A workers and similarlysituated U.S. workers a wage rate calculated by a formula, which is known as an "adverse effect wage rate" (AEWR). See 54 Fed. Reg. at 28,038. AEWRs are minimum hourly wage rates that must be paid under the H-2A program to foreign and U.S. agricultural workers, and are intended to ensure that H-2A workers do not have an adverse effect on the wages and working conditions of similarly-employed U.S. workers. Feller v. Brock , 802 F.2d 722, 724 (4th Cir. 1986); 54 Fed.

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NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW

Reg. at 28,038. With only minor amendments, such as the annual recalculations of the AEWRs, the 1987 regulations remained in effect until January 16, 2009.

2. The 2008 Regulations

In February 2008, the Department published a notice of proposed rule making, stating that the agency intended to make substantial changes to the H-2A program. Temporary Agricultural Employment of H-2A Aliens; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 8538 (Feb. 13, 2008). A 60-day comment period was provided, during which the Department received 11,000 comments. See Temporary Agricultural Employment of H-2A Aliens; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110, 77,111 (Dec. 18, 2008); Extension of Comment Period, 73 Fed. Reg. 16,243 (Mar. 27, 2008). A final rule was published in December 2008 and became effective on January 17, 2009 (collectively, the 2008 regulations, or the 2008 rule). See 73 Fed. Reg. 77,110 (Dec. 18, 2008). The 2008 regulations changed the method by which AEWRs were calculated. 1 73 Fed. Reg. at 77,16677,178. Many agricultural employers relied on the terms of the 2008 regulations when entering into labor and production contracts, and in making other business commitments for the 2009 growing season. There is no dispute that the 2008 regulations were validly promulgated.

The classification of foreign seasonal workers employed on Christmas tree farms also is at issue in this appeal. Under the Department’s prior practice, such workers were defined as "agricultural" employees under the H-2A program, but as "non-agricultural," "forestry" employees under the Fair Labor

1The Department published the AEWR rates for 2008 in a separate notice. See Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging: 2008 AEWRs and Other Provisions, 73 Fed. Reg. 10,288 (Feb. 26, 2008).

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7

Standards Act (FLSA), 29 U.S.C. §§ 201 through 219. The Department’s distinction in this regard was material, because, among other things, persons "employed in agriculture" do not qualify to receive "overtime" pay under the provisions of the FLSA. 29 U.S.C. § 213(b)(12). Therefore, under the Department’s prior practice, growers of Christmas trees not only were required to provide their H-2A workers with housing, meals, and transportation benefits set forth in the Immigration Reform and Control amendments to the Immigration and Nationality Act, but also were required to pay the H-2A workers for overtime hours worked.

In 2004, this Court found that the Department’s position regarding the classification of H-2A workers on Christmas tree farms, adopted without rule making allowing notice and comment and without a formal adjudication, lacked any statutory foundation and was not a persuasive interpretation of the FLSA. On that basis, this Court invalidated the Department’s determination. Dep’t of Labor v. N.C. Growers’ Ass’n , 377 F.3d 345 (4th Cir. 2004). In accordance with this precedent, the 2008 regulations defined H-2A workers on Christmas tree farms as "agricultural" employees for purposes of both the H2A program and the FLSA. See 73 Fed. Reg. at 77,20177,202.

3. The 2009 Suspension

In March 2009, just two months after the 2008 regulations took effect, Hilda Solis, the newly-appointed Secretary of Labor, issued a "notice of proposed suspension" of the 2008 regulations (the 2009 Notice). Temporary Employment of H2A Aliens in the United States, 74 Fed. Reg. 11,408 (Mar. 17, 2009). In the 2009 Notice, the Department proposed to suspend the 2008 regulations, during a nine-month period, for further review and reconsideration "in light of issues that have arisen since the publication of the [2008 regulations]." 74 Fed. Reg. at 11,408. The 2009 Notice also stated that during the period that the 2008 regulations would be suspended, the

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Department proposed "to reinstate on an interim basis" the 1987 regulations to avoid a "regulatory vacuum" in the H-2A program. Id.

The Department articulated various reasons in the 2009 Notice to support the proposed suspension and reinstatement, including: (1) a lack of agency resources to implement the 2008 regulations efficiently; (2) delays resulting from processing increased numbers of H-2A applications under the 2008 regulations, which volume was expected to impede the Department’s performance of its statutory duty "to process H2A applications within a strict timeframe"; (3) the Department’s inability "to implement the sequence of operational events" required to process applications under the 2008 regulations; (4) the Department’s inability to develop an "automated review system" for applications, requiring the Department to review them manually; (5) the 2008 regulations were a "complex new regulatory program," the implementation of which was proving disruptive and confusing to the Department and to stakeholders; (6) avoidance of disruption during "the severe economic conditions" facing the country; (7) the Department "may differ" with the policy positions of the prior Administration, on which the 2008 regulations were based; (8) growers "require clear and consistent guidance" to "plan and staff their operations appropriately for the impending growing season"; and (9) continuing to implement the 2008 regulations would not be an efficient use of resources by stakeholders or the Department in the event that the agency soon would issue a different rule. 74 Fed. Reg. at 11,408-11,409.

For agricultural employers who submitted H-2A applications before the proposed suspension, the Department stated that it would process their applications under the 2008 regulations then in effect. 74 Fed. Reg. at 11,409-11,410; Temporary Employment of H-2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,979 (May 29, 2009). The Department allowed a 10-day period to receive comments on the proposed

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9

suspension, citing the need for expediency, and stated that the Department only would consider comments concerning the suspension action itself, and not regarding the merits of either set of regulations (the content restriction):

Please provide written comments only on whether the Department should suspend the [2008 regulations] for further review and consideration of the issues that have arisen since [their] publication. Comments concerning the substance or merits of the [2008 regulations] or the [1987 regulations] will not be considered.

74 Fed. Reg. at 11,408. During this 10-day period, 800 comments were received. 74 Fed. Reg. at 25,973.

On May 29, 2009, after two months of consideration, the Department published a "final rule; suspension of rule" that suspended the 2008 regulations, and reinstated the 1987 regulations, for a nine-month period effective June 29, 2009 (collectively, the 2009 Suspension). 74 Fed. Reg. 25,972 (May 29, 2009). In addition to the reasons set forth in the 2009 Notice, the Department also included as grounds supporting the decision the likely depressive economic effects of the 2008 regulations, and the lack of training by the Department, state agencies, and H-2A employers. 74 Fed. Reg. at 25,97225,974. Although the Department acknowledged that many agricultural employers had planned for the 2009 growing season relying on the terms of the 2008 regulations, the Department partly discounted the possibility that the suspension would cause excessive disruption, noting that employers had operated under the 1987 regulations for several years and were familiar with their terms. 74 Fed. Reg. at 25,980.

Under the 2009 Suspension, agricultural employers hiring H-2A workers would be required to pay the higher wage rate afforded under the directives contained in the 1987 regulations. The Department also published higher AEWRs near the

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NORTH CAROLINA GROWERS’ ASSOCIATION v. UFW

end of May 2009, which were scheduled to take effect one month later.2 See Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging: 2009 AEWRs and Other Provisions, 74 Fed. Reg. 26,016 (May 29, 2009). Additionally, due to the 2009 Suspension, H-2A workers employed on Christmas tree farms again would be classified as "agricultural" employees for purposes of the H-2A program, but as "non-agricultural" employees for purposes of the FLSA, the same classification invalidated by this Court in N.C. Growers’ Ass’n. 74 Fed. Reg. at 25,982.

4. The NCGA Files Suit To Enjoin Suspension

In June 2009, the North Carolina Growers’ Association, Inc., and other growers’ associations, farmers, and related lobbying organizations (collectively, the NCGA), filed a complaint in the district court against the Department and other federal agencies (collectively, the federal defendants). The NCGA sought to enjoin the Department’s 2009 Suspension, arguing that such action violated the APA. The district court granted the NCGA’s summary judgment motion, and issued a preliminary injunction prohibiting implementation of the 2009 Suspension.

As a result of the district court’s injunction, the 2008 regulations continued to govern administration of the H-2A program, and H-2A and U.S. agricultural workers were paid at lower wage rates for nine months based on the 2008 AEWRs and the 2008 regulations. 3 Thousands of agricultural workers and employers were affected by the changes in these regulations.

2This would result in a higher hourly wage both for H-2A workers and for U.S. agricultural workers who worked alongside the H-2A workers.
3For example, under the 2008 AEWR, an H-2A worker in North Carolina would be paid $8.85 per hour rather than $9.34 per hour under the 2009 Suspension. See 74 Fed. Reg. at 26,016 (2009 Suspension AEWR); 73 Fed. Reg. at 10,289 (2008 AEWR).

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5. The 2010 Regulations

In September 2009, the Department issued another notice of proposed rule making in a second attempt to replace the 2008 regulations.4 See Temporary Agricultural Employment of H-2A Aliens, 74 Fed. Reg. 45,906 (Sept. 4, 2009) After issuing notice and receiving comment, the Department published new regulations governing the H-2A program (the 2010 regulations). See Temporary Agricultural Employment of H2A Aliens, 75 Fed. Reg. 6884 (Feb. 12, 2010). The 2010 regulations largely restored the H-2A program to the status quo before 2008, and reinstituted the wages and working conditions established under the 1987 regulations. The 2010 regulations are not at issue in this appeal.

6. The Claims In The NCGA’s Suit

The district court held that the NCGA’s claims against the federal defendants were moot, in light of the Department’s promulgation of the 2010 regulations. In December 2009, the district court permitted the United Farm Workers, the Farm Labor Organizing Committee, AFL-CIO, and representative H-2A workers (collectively, the Farm Workers) to intervene as defendants in this case. The Farm Workers filed a purported class action counterclaim against the NCGA on behalf of H-2A workers and U.S. agricultural workers who had been paid at wage rates based on the lower AEWRs in effect during the preliminary injunction.

The Farm Workers sought the difference between the higher wages that would have been paid under the reinstated 1987 regulations, and the lower wages actually received by the workers under the 2008 regulations as a result of the district court’s preliminary injunction. The Farm Workers sought

4Appeals from the district court’s preliminary injunction order to this Court were later withdrawn in light of the Department’s action promulgating the 2010 regulations.

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payment of this wage differential for the period between June 29, 2009, the date that the reinstatement of the 1987 regulations would have taken effect, and March 14, 2010, the last day before the uncontested 2010 regulations took effect.

The parties filed cross motions for summary judgment on the issue whether the 2009 Suspension was promulgated in compliance with the APA. In its summary judgment decision, the district court held that issuance of the 2009 Suspension, that is, "the suspension of the 2008 Rule and reinstatement of the 1987 Rule[,] constituted ‘rule making’" under the APA and required compliance with the APA’s notice and comment procedures. The court further concluded that the 2009 Suspension violated the APA, because the Department refused to consider comments addressing the substance of either the 2008 regulations or the 1987 regulations. According to the court, these were relevant issues that the Department was required to consider before suspending the 2008 regulations and reinstating the 1987 regulations.

The district court held that the Department’s failure to consider such comments rendered the Department’s action imposing the 2009 Suspension arbitrary and capricious. The court granted the NCGA’s motion for summary judgment, denied the Farm Workers’ motion for partial summary judgment, and dismissed with prejudice the Farm Workers’ counterclaims. The Farm Workers timely appealed.

II.

We review de novo a district court’s decision awarding summary judgment. Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Couch v. Jabe, 679 F.3d 197, 200 (4th Cir. 2012); Fed. R. Civ. P. 56(a).

The APA requires that agencies follow certain procedures before issuing a rule. 5 U.S.C. § 553. When an agency is

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engaged in "rule making," the agency must: (1) publish a general notice of proposed rule making in the Federal Register that includes "the terms or substance of the proposed rule or a description of the subjects and issues involved"; (2) give "interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments"; and (3) "[a]fter consideration of the relevant matter presented . . . incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. § 553(b), (c).

The important purposes of this notice and comment procedure cannot be overstated. The agency benefits from the experience and input of comments by the public, which help "ensure informed agency decisionmaking." Spartan Radiocasting Co. v. FCC , 619 F.2d 314, 321 (4th Cir. 1980). The notice and comment procedure also is designed to encourage public participation in the administrative process. See Chocolate Mfrs. Ass’n v. Block , 755 F.2d 1098, 1103 (4th Cir. 1985). Additionally, the process helps ensure "that the agency maintains a flexible and open-minded attitude towards its own rules," id. (citation omitted), because the opportunity to comment "must be a meaningful opportunity," Prometheus Radio Project v. FCC , 652 F.3d 431, 450 (3d Cir. 2011) (citation omitted).

Under the APA, a reviewing court will overturn an agency action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, . . . [or] without observance of procedure required by law." 5 U.S.C. § 706(2); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 27, 41 (1983) (informal rule making procedures may be set aside if arbitrary, capricious, or not in accordance with law); Almy v. Sebelius, 679 F.3d 297, 302 (4th Cir. 2012) (same). As part of this review process, courts are charged with ensuring that agencies comply with the procedural requirements of the APA. Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979).

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We have recognized that courts best provide oversight of an agency decision "by scrutinizing process and by determining whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Kennecott v. EPA , 780 F.2d 445, 449 (4th Cir. 1985) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). These tasks are "the heart of the judicial inquiry," id. at 449, and fall within courts’ "special areas of competence," Chamber of Commerce of U.S. v. SEC, 443 F.3d 890, 899-900 (D.C. Cir. 2006) (citation omitted). Thus, while our review of an agency’s final decision is narrow, "we must be strict in reviewing an agency’s compliance with procedural rules." Chocolate Mfrs. Ass’n , 755 F.2d at 1103 (quoting BASF Wyandotte Corp. v. Costle , 598 F.2d 637, 641 (1st Cir. 1979)).

III.

We first consider the issue whether the Department’s suspension of the 2008 regulations or its reinstatement of the 1987 regulations qualified as "rule making" under the APA, thereby triggering the statute’s notice and comment requirements. If the contested action did not qualify as "rule making," as the Farm Workers contend, the Department was not required to provide notice and comment and the district court erred in enjoining the 2009 Suspension. However, if the Department did engage in "rule making," as the NCGA contends, the agency was required to comply with regular notice and comment procedures barring an express exception afforded under the APA.

The district court assumed, without deciding, that the Department’s suspension of the 2008 regulations qualified as "rule making." The court held that "[i]n addition to withdrawing a rule, [the Department] effectively formulated a new rule by reinstating the 1987 Rule ." (Emphasis added). The court further held that "rule making" under the APA "explicitly covers rule formulation," and, thus, reinstatement of the 1987

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regulations required compliance with regular notice and comment procedures.

The Farm Workers contend that the district court’s analysis was erroneous in two respects. First, the Farm Workers argue that the act of "reinstating" a rule does not fall within the definition of "rule making." According to the Farm Workers, "reinstating" means restoring something that is not new, while "formulating" means creating something new. Second, the Farm Workers contend that the Department’s reinstatement of regulations that previously had been subject to notice and comment procedures did not require a "second rule making process before reinstatement." We disagree with the Farm Workers’ arguments.

We begin by considering the relevant statutory language. Under the APA, a "rule" is defined as

the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.

5 U.S.C. § 551(4). The APA provides a "broad" definition of the term "rule making," Ohio River Valley Envtl. Coal., Inc. v. Kempthorne, 473 F.3d 94, 102 (4th Cir. 2006), which comprises the "agency process for formulating, amending, or repealing a rule." 5 U.S.C. § 551(5) (emphasis added). The parties do not dispute that the 1987 and 2008 regulations each constitute a "rule" under the APA. Instead, they dispute whether the Department’s action qualified as "formulating" a rule, thereby constituting "rule making." As described above,

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an agency engaging in "rule making" is required under the APA to provide notice of a proposed rule and the opportunity for comment. See 5 U.S.C. § 553.

We are not persuaded by the Farm Workers’ textual argument that, under the APA, the act of "reinstating" a rule does not qualify as "formulating" a rule. This argument is not supported by any precedent, and actually is undermined by a definition of the term "formulating" cited by the Farm Workers, which is "to reduce to or express in or as if in a formula," or to "put into a systematized statement or expression." See Webster’s Third New International Dictionary 894 (1986). Notably absent from this definition is any requirement of originality or novelty in the substance or text of the subject matter expressed. Thus, under this definition of "formulating," it is immaterial whether the rule at issue was newly drafted or was drawn from another source.

When the 2008 regulations took effect on January 17, 2009, they superseded the 1987 regulations for all purposes relevant to this appeal. As a result, the 1987 regulations ceased to have any legal effect, and their reinstatement would have put in place a set of regulations that were new and different "formulations" from the 2008 regulations.

We also find no merit in the Farm Workers’ argument that the Department’s action was not "rule making," but was merely a suspension of regulations as occurred in American Mining Congress v. EPA , 907 F.2d 1179, 1191 (D.C. Cir. 1990) (AMC), and American Federation of Government Employees v. OPM , 821 F.2d 761, 764 (D.C. Cir. 1987) (AFGE). Those cases concerned instances in which Congress, rather than the agency itself, caused the suspension of the regulation at issue. AMC, 907 F.2d at 1183-84; AFGE, 821 F.2d at 763-64. This factor, among others, renders these cases inapposite, because the APA’s focus on promoting public notice and comment is not affected when Congress steps in and com-

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pels agency action. See Chocolate Mfrs. Ass’n , 755 F.2d at 1103.

The Department’s own conduct, however, is highly relevant and shows that the Department viewed the reinstatement of the 1987 regulations as "rule making." The Department published the 2009 Notice (entitled "Notice of proposed suspension of rule"), proposing both to suspend the 2008 regulations and to reinstate the 1987 regulations, and the Department sought and considered comments on such action. 74 Fed. Reg. at 11,408-11,409. The Department later promulgated the 2009 Suspension (entitled "Final rule; suspension of rule"), and explained the basis for its decision. 74 Fed. Reg. at 25,972-25,984. Similar attempts by an agency "to comply with APA notice-and-comment procedures suggest that the agency believed them to be applicable," and support the conclusion that "those procedures were applicable." Manufactured Housing Inst. v. EPA , 467 F.3d 391, 399 (4th Cir. 2006); see also Kempthorne, 473 F.3d at 102.

We therefore conclude that, by reinstating the superseded and void 1987 regulations (albeit temporarily), the Department engaged in the "formulating" and the "repealing" aspects of "rule making" under the APA. See 5 U.S.C. § 551(5). Thus, we hold that the Department’s reinstatement of the 1987 regulations qualified as "rule making" under the "broad language" of that term, and that the Department was required to comply with the APA’s notice and comment procedures. See 5 U.S.C. § 553; Kempthorne, 473 F.3d at 102.

IV.

The Farm Workers contend, nonetheless, that the Department did not violate the APA, because the Department’s action fell within the "good cause" exception to the APA’s notice and comment requirements. These notice and comment requirements do not apply "when the agency for good cause finds (and incorporates the finding and a brief statement of

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reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest" (the good cause exception). 5 U.S.C. § 553(b)(B).

The APA requires that the agency relying on the good cause exception "incorporate[ ] the finding [of good cause] and a brief statement of reasons therefor in the rules issued." 5 U.S.C. § 553(b)(B). This requirement, that an agency articulate its basis for dispensing with normal notice and comment, is not a procedural formality but serves the crucial purpose of ensuring that the exceptions do not "swallow the rule." Cf. Mobil Oil Corp. v. Dep’t of Energy , 610 F.2d 796, 803 (Temp. Emer. Ct. App. 1979) (conclusory statement or mere recital of good cause is not sufficient to qualify as good cause, otherwise, an exception to the notice requirement would be satisfied upon mere invocation of the rule).

Under the first statutory ground for good cause, notice and comment on a rule may be found to be "impracticable" when "the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings." Nat’l Nutritional Foods Ass’n v. Kennedy, 572 F.2d 377, 384-85 (2d Cir. 1978) (Friendly, J.) (quoting S. Rep. No. 752, at 200 (1945)); see also Util. Solid Waste Activities Group v. EPA , 236 F.3d 749, 754-55 (D.C. Cir. 2001) (the "impracticable" basis for good cause applies "when an agency finds that due and timely execution of its functions would be impeded by the notice and comment otherwise required" under the APA) (quoting United States Department of Justice, Attorney General’s Manual on the Administrative Procedure Act 30-31 (1947)). Examples of such circumstances under which good cause existed include an agency determination that new rules were needed "to address threats posing a possible imminent hazard to aircraft, persons, and property within the United States," or were "of life-saving importance to mine workers in the event of a mine explosion," or were necessary to "stave off any imminent

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threat to the environment or safety or national security." Mack Trucks, Inc. v. EPA , 682 F.3d 87, 93 (D.C. Cir. 2012) (citations and internal quotation marks omitted).

The second statutory ground, the "unnecessary" prong of the good cause exception, applies when an administrative rule is "a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public." Id. at 94 (quoting Util. Solid Waste Activities Group , 236 F.3d at 755). Congress intended that rule making be exempted as "unnecessary" when amendments are "minor or merely technical," and of little public interest. Nat’l Nutritional Foods Ass’n, 572 F.2d at 384-85 (quoting S. Rep. No. 752, at 200); see also Attorney General’s Manual at 30-31 (the "unnecessary" prong of the good cause exception refers to "the issuance of a minor rule or amendment in which the public is not particularly interested"). Lastly, the third statutory ground for good cause addresses circumstances when notice and comment on a rule are "contrary to the public interest." 5 U.S.C. § 553(b)(B). This public interest prong of the good cause exception "connotes a situation in which the interest of the public would be defeated by any requirement of advance notice." Util. Solid Waste Activities Group , 236 F.3d at 755 (quoting Attorney General’s Manual at 31). Good cause is found on this basis "only in the rare circumstances when ordinary procedures – generally presumed to serve the public interest – would in fact harm that interest." Mack Trucks, 682 F.3d at 95.

We construe the good cause exception narrowly. United States v. Gould , 568 F.3d 459, 469 (4th Cir. 2009). There is a high bar to invoke the exception because "[t]he legislative history of the [APA] demonstrates that Congress intended the exceptions in § 553(b)(B) to be narrow ones." Nat’l Nutritional Foods Ass’n , 572 F.2d at 384. Indeed, "Congress expected, and the courts have held, that the various exceptions to the notice-and-comment provisions of section 553 will be narrowly construed and only reluctantly countenanced." N.J.

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Dep’t of Envtl. Prot. v. EPA , 626 F.2d 1038, 1045 (D.C. Cir. 1980).

As a result, the circumstances justifying reliance on the good cause exception are "rare," and will be accepted only after a reviewing court "examine[s] closely" the proffered reason for an agency’s deviation from public notice and comment. Council of the S. Mountains, Inc. v. Donovan , 653 F.2d 573, 580 (D.C. Cir. 1981) (citation omitted). The good cause exception applies only in "emergency situations," or in cases when delay "could result in serious harm." Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004); see also Natural Res. Def. Council, Inc. v. Evans , 316 F.3d 904, 911 (9th Cir. 2003) ("[N]otice and comment procedures should be waived only when delay would do real harm.") (citation and internal quotation marks omitted); Util. Solid Waste Activities Group, 236 F.3d at 754 (good cause exception "should be limited to emergency situations") (citation omitted).

We consider an explanation for good cause that the agency has advanced at the time of the rule making. See Gould, 568 F.3d at 469-70; see also United States v. Garner , 767 F.2d 104, 116-17 (5th Cir. 1985) (agency action must be upheld, "if at all, on the basis articulated by the agency itself" (quoting State Farm, 463 U.S. at 50)). Post-hoc explanations that an agency did not have to comply with regular notice and comment procedures are viewed with skepticism. See, e.g., United States v. Johnson , 632 F.3d 912, 928 (5th Cir. 2011); Buschmann v. Schweiker , 676 F.2d 352, 356-58 (9th Cir. 1982). And, manifestly, we "may not supply a reasoned basis for the agency’s action that the agency itself has not given." State Farm, 463 U.S. at 43.

The present record reveals that the Department did not expressly invoke the good cause exception when reinstating the 1987 regulations. See 5 U.S.C. § 553(b)(B). Indeed, in undertaking its reinstatement of the 1987 regulations, the Department quoted the notice and comment requirements of

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§ 553(b) and (c), but omitted the text of the good cause exception in subsection (b)(B). See 74 Fed. Reg. at 25,978. Moreover, nowhere did the Department state that allowing for notice and substantive comment on reinstatement of the 1987 regulations would be "impracticable," "unnecessary," or "contrary to the public interest," the only grounds for good cause provided by the statute. 5 U.S.C. § 553(b)(B).

We cannot lightly accept arguments that an agency, while failing to refer to the good cause exception, nevertheless implicitly relied on the exception. The statutory requirements in § 553(b)(B) are clear, and they constitute an important part of the APA’s procedural safeguards related to agency rule making. See Buschmann, 676 F.2d at 356-58. Although we do not impose a rigid requirement that an agency must explicitly invoke the good cause exception, the contemporaneous agency record must manifest plainly the agency’s reliance on the exception in its decision to depart from the required notice and comment procedures. See Nat’l Customs Brokers & Forwarders Ass’n of Am., Inc. v. United States , 59 F.3d 1219, 1224 (Fed. Cir. 1995) (excusing agency’s failure to "expressly cite section 553(b)(B)," when the agency "expressly noted that the interim regulations were not subject to the notice and public procedure requirements of 5 U.S.C. 553," and otherwise made clear its reliance on the exception (citation omitted)).

The Department did not plainly manifest its reliance on the good cause exception in this case. Rather, the record reflects the Department’s position that the APA’s notice and comment provisions were applicable, but that the agency had satisfied such obligations.

The Department actually provided notice and sought comment on the issue "whether to suspend the [2008 regulations] and reinstate on an interim basis the [1987 regulations]." 74 Fed. Reg. at 11,409. The Department stated the reasons why it "believe[d] that the 10-day comment period for this rule-

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making [was] reasonable." 74 Fed. Reg. at 25,978. The Department also stated that "comments on the merits of the [2008 and 1987 regulations] would be appropriate when the merits of the program are actually at issue," apparently referring to a time after the period of suspension if the Department decided to engage in further rule making. Id. at 25,979. The Department did not justify its content restriction on the basis of urgency or exigency, but rather on its stated judgment that the merits of either program were not actually "at issue" because the 1987 regulations were reinstated only as "a temporary measure."5 Id. at 25,979.

The 2009 Notice and Suspension therefore demonstrate that the Department attempted to justify its suspension of the 2008 regulations and its reinstatement of the 1987 regulations on the basis that such action complied with the APA’s regular notice and comment procedure. Accordingly, we do not accept the proposition that "good cause" was invoked by the rationale offered by the Department in support of the proposed rule making. Such a conclusion would undermine the good cause exception, by permitting a party to invoke the exception only when challenged.

We hold that the language of the 2009 Notice and Suspension fails to show that the Department invoked the good cause

5The Department also stated that the suspension of the 2008 regulations and the reinstatement of the 1987 regulations would take effect after 30 days, pursuant to a separate notice and comment procedural rule set forth in 5 U.S.C. § 553(d). 74 Fed. Reg. at 25,978-25,979. The fact that the Department provided 30 days’ notice before the effective date of the suspension and reinstatement, but did not attempt to argue that the agency had "good cause" to dispense with this procedural requirement under the separate good cause exception found in § 553(d)(3), further demonstrates that the Department did not rely upon the good cause exception in any aspect of the notice and comment proceedings. See 5 U.S.C. § 553(d)(3) (providing, in relevant part, that "the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except . . . as otherwise provided by the agency for good cause found and published with the rule").

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exception, either explicitly or implicitly. Instead, the record plainly reflects that the Department concluded that the APA’s notice and comment procedures were applicable, but that it had complied with such requirements. Id. at 25,978-25,979.

V.

Having determined that the Department’s reinstatement of the 1987 regulations qualified as "rule making" under the APA, and that the Department did not invoke the APA’s good cause exception, we turn to consider the issue whether the agency action complied with the notice and comment provisions of the APA. We need not address this issue at length, because the record clearly demonstrates that the Department did not satisfy its notice and comment obligations.

The district court focused on the "content restriction" in its analysis whether the Department complied with the APA’s notice and comment requirements. As recited above, the content restriction provided that "[c]omments concerning the substance or merits of the [2008 regulations] or the [1987 regulations] will not be considered." 74 Fed. Reg. at 11,408. The court noted that the Department "refused to consider comments that it received as to those rules’ substance and merits." According to the court, such comments were "relevant and important" to the Department’s stated basis for its decision to suspend the 2008 regulations, namely, the severe economic circumstances facing the country. The court further explained that the Department’s refusal to consider such comments was a failure to "give interested persons an opportunity to participate in the rule making," and a "failure to consider important aspects of the problem."

The Farm Workers, however, argue that the 10-day comment period was reasonable, and was adequate to provide notice and the opportunity for public comment. They also point to the fact that 800 comments were received, contending that this volume of response indicates that the Department

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provided adequate opportunity for comment. According to the Farm Workers, the Department adequately explained its action and "responded to the public’s comments with reasoned explanations." Thus, the Farm Workers assert that the district court improperly attempted to craft additional procedural requirements, beyond those mandated by the APA, in concluding that the content restriction prevented the Department from receiving comments on matters "relevant and important" to the "rule making." We disagree with the Farm Workers’ arguments.

The notice and comment provisions of the APA require, among other things, that the agency give "interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," and that the agency shall explain its decision, "[a]fter consideration of the relevant matter presented." 5 U.S.C. § 553(b), (c). In addition, the Supreme Court has emphasized that agency action "normally" will be deemed arbitrary and capricious when the agency "entirely failed to consider an important aspect of the problem." State Farm, 463 U.S. at 43. We likewise have explained that during notice and comment proceedings, the agency is obligated to identify and respond to relevant, significant issues raised during those proceedings. S.C. ex rel. Tindal v. Block, 717 F.2d 874, 885-86 (4th Cir. 1983).

By the very terms of the 2009 Notice, the Department stated that it would not receive or consider comments that were not only "relevant and important," but were integral to the proposed agency action and the conditions that such action sought to alleviate. In the 2009 Notice, the Department stated that it proposed to suspend the 2008 regulations and reinstate the 1987 regulations, because of difficulties in operating the H-2A program under the 2008 regulations, including a lack of resources, inability to implement operations, and processing delays. 74 Fed. Reg. at 11,409. These reasons for the 2009 Suspension were significant, substantive matters, which raised questions whether the review process provided

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in the 2008 regulations was more or less efficient than the review process provided in the 1987 regulations.

We therefore agree with the district court that, as a result of the Department’s content restriction, the Department refused to receive comments on and to consider or explain "relevant and significant issues." See 5 U.S.C. § 553(b), (c); Tindal, 717 F.2d at 885. Moreover, the content restriction was so severe in scope, by preventing any discussion of the "substance or merits" of either set of regulations, that the opportunity for comment cannot be said to have been "a meaningful opportunity." Prometheus Radio Project , 652 F.3d at 450.

Our conclusion that the Department did not provide a meaningful opportunity for comment further is supported by the exceedingly short duration of the comment period. Although the APA has not prescribed a minimum number of days necessary to allow for adequate comment, based on the important interests underlying these requirements, Chocolate Mfrs. Ass’n, 755 F.2d at 1103, the instances actually warranting a 10-day comment period will be rare. Such instances are generally characterized by the presence of exigent circumstances in which agency action was required in a mere matter of days. See, e.g., Omnipoint Corp. v. FCC, 78 F.3d 620, 62930 (D.C. Cir. 1996) (upholding 15-day comment period given the "urgent necessity for rapid administrative action" evidenced by "congressional mandate [to act] without administrative or judicial delays" (citation omitted)); Northwest Airlines, Inc. v. Goldschmidt , 645 F.2d 1309, 1321 (8th Cir. 1981) (upholding 7-day comment period and invocation of the good cause exception, when agency needed to resolve expeditiously dispute among airlines about aircraft landing "time slots," or risk widespread flight disruption).

We also observe that when the Department earlier engaged in rule making related to the 2008 regulations, the agency received about 11,000 comments over a 60-day comment period. See 73 Fed. Reg. at 77,111; 73 Fed. Reg. at 16,243.

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In this context, the 800 comments received over the 10-day comment period allowed here do not support the Farm Workers’ argument that the Department provided adequate opportunity for comment.

Accordingly, because the Department did not provide a meaningful opportunity for comment, and did not solicit or receive relevant comments regarding the substance or merits of either set of regulations, we have no difficulty in concluding that the Department "ignored important aspects of the problem." Kempthorne, 473 F.3d at 103. Therefore, we hold that the Department’s reinstatement of the 1987 regulations was arbitrary and capricious in that the Department’s action did not follow procedures required by law. See 5 U.S.C. § 706(2); see also Mack Trucks, 682 F.3d 95-96 (vacating agency interim rule when good cause exception did not apply, and APA notice and comment procedures were not followed); Buschmann, 676 F.2d at 358 (same); Kollett v. Harris , 619 F.2d 134, 144-46 (1st Cir. 1980) (holding "invalid" "procedurally defective" interim regulations that were issued without notice and comment, and in the absence of good cause).

VI.

Under the terms of the 2009 Notice and Suspension, the Department also proposed that H-2A workers employed on Christmas tree farms be defined as "agricultural" workers for purposes of the H-2A program, but defined as "nonagricultural" workers under the FLSA. 74 Fed. Reg. at 25,982. As a result of this distinction, Christmas tree workers would be entitled to various benefits under the H-2A program, and overtime pay benefits under the FLSA. The Farm Workers contend that the district court improperly applied the APA’s notice and comment requirements to this determination, which was merely interpretive in character and construed the term "agriculture," within the meaning of the FLSA. Thus, the Farm Workers contend that the 2009 Notice and Suspension lawfully returned Christmas tree farmers to a classifica-

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27

tion they had enjoyed before our N.C. Growers’ Ass’n decision. We disagree with the Farm Workers’ arguments.

"Interpretative rules" are not subject to the APA’s notice and comment requirements. 5 U.S.C. § 553(b)(A). However, interpretative rules only are entitled to deference as articulated in Skidmore v. Swift & Co. , 323 U.S. 134 (1944). See S. Utah Wilderness Alliance v. Dabney , 222 F.3d 819, 829-30 (10th Cir. 2000); Watkins v. Cantrell , 736 F.2d 933, 943 (4th Cir. 1984). In our N.C. Growers’ Ass’n decision, applying such Skidmore deference, we considered the Department’s similar classification of Christmas tree workers under the FLSA. 377 F.3d at 353-54. And, in N.C. Growers’ Ass’n , we concluded that the Department’s interpretation of the FLSA lacked any statutory support and did not have "the power to persuade." Id. (citing Skidmore, 323 U.S. at 140).

We noted in N.C. Growers’ Ass’n that the Department’s

interpretation was not the product of "notice and comment

rulemaking," and thus "lack[ed] the thoroughness of such

rules." 377 F.3d at 354. The interpretation of the FLSA set

forth in the 2009 Suspension fares no better, because the 2009

Suspension likewise was not subject to notice and comment.

Accordingly, we adhere to our decision reached in

N.C.

Growers’ Ass’n.

VII.

In sum, we hold that the Department’s reinstatement of the 1987 regulations for the H-2A program qualified as "rule making" under the APA. We further hold that the Department did not invoke the "good cause" exception of the APA and, therefore, was required to satisfy the APA’s notice and comment requirements. Because the Department did not comply with those statutory requirements, the Department’s action was arbitrary and capricious, in that the Department failed to follow procedures required by law. Finally, we hold that the Department’s action did not validly extend the FLSA’s over-

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time pay provisions to Christmas tree farmers, and we remain bound by our decision in N.C. Growers’ Ass’n.

For these reasons, we affirm the district court’s award of summary judgment to the NCGA.

AFFIRMED

WILKINSON, Circuit Judge, concurring:

The different sets of regulations at issue in this case obviously reflect a political back-and-forth between employers seeking to more easily hire foreign agricultural workers through the H-2A program and those representing domestic agricultural workers, whose wages and employment prospects could be adversely affected by guest workers from abroad. The 1987 regulations, 54 Fed. Reg. 28,037; 52 Fed. Reg. 20,496, embodied one set of priorities. The 2008 regulations, 73 Fed. Reg. 77,110, embodied another and very different pro-employer set of priorities. The 2009 Suspension, 74 Fed. Reg. 25,972, and 2010 regulations, 75 Fed. Reg. 6884, then signaled a return, in the main, to the earlier 1987 emphasis on worker wage protection.

There is nothing necessarily wrong with this sort of seesaw. No one expects agency views to be frozen in time or to be immune from electoral mandates that will predictably result in alterations and modifications of agency rules and regulations.

Changes in course, however, cannot be solely a matter of political winds and currents. The Administrative Procedure Act requires that the pivot from one administration’s priorities to those of the next be accomplished with at least some fidelity to law and legal process. Otherwise, government becomes a matter of the whim and caprice of the bureaucracy, and regulated entities will have no assurance that business planning predicated on today’s rules will not be arbitrarily upset tomor-

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29

row. Thus, the APA contemplates what is essentially a hybrid of politics and law—change yes, but only with a measure of deliberation and, hopefully, some fair grounding in statutory text and evidence.

I readily concur in Judge Keenan’s fine opinion because it demonstrates, as did the district court’s decision, that the very rudiments of process were absent here. It quite defies belief that the 2009 Notice of Proposed Suspension of Rule deemed comments on the merits of the regulations to be suspended or the regulations to be reinstated out of bounds. See 74 Fed. Reg. 11,408. In other words, the very agency actions that would most affect those subject to the varying sets of regulations were ruled off limits to discussion.

This all risks giving the impression that the agency had already made up its mind and that the comment period was, at best, for show and provided only in an effort to do the minimum necessary to squeak by judicial review. The confusion was further compounded when the 2009 Notice invited comments on whether the Department should suspend the 2008 regulations, but then stated that comments concerning the "substance or merits" of those very same regulations "will not be considered." Id. How in the world was a prospective commenter to know what could and could not be commented on, or what the agency would or would not deem worthy of its attention? The situation was further worsened by the highly abbreviated comment period allowed for what was, in reality, a complicated matter involving widespread real-world impacts on the different participants in the agricultural community and the difficulties and problems involved with the various regulations’ implementation.

It is not a matter of tying an agency’s hands in the face of a fresh electoral mandate. After all, the Department was able to achieve its objectives with the 2010 regulations. To have approved the process at issue in this case, however, would have been to generate a blueprint for agency unaccountability,

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at odds with the very idea that government at all levels is subject to the written law.

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 AO 133 (Rev. 12109) Bill of Costs

UNITED STATES DISTRICT COURT

for the

Middle District ofNorth Carolina

NCGA, Inc., et al.
v. Hilda Solis, et al.

) ) ) Case No. : 09-411 ) )

BILL OF COSTS

Judgment having been entered in the above entitled action on the Clerk is requested to tax the fol lowing as costs:

10/31/2011
Date

against Defendants and Intervenors

Fees of the Clerk . .. ... .. ....... . ... ...... .......... . ...... . .. .......... .......... . Fees for service of summons and subpoena ....... . ... . . . ......... .. . . .. . .......... . . . .. .

$- - - - -350-.0034.74

Fees for printed or electronically recorded transcripts necessarily obtained for use in the case ..... .

Fees and disbursements for printing ...... ....... .......... ....... . . . ..... ............. . Fees for witnesses (itemize ou page two) ... . .. ............. . . .. .... . .......... ... . .....•...

0 .0 0

Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case................ .. . . .. . . . ... . ....... . . ..... .. . . . .

Docket fees under 28 U.S.C. 1923 ...... . . . . . ............ . ... .. ... .. . ...... .......... . .

Costs as shown on Mandate of Court of Appeals . . . ............ . ... . ... ...... ............ .

Compensation ofcourt-appointed experts .. .... .................... . .. ... .............. .

Compensation of interpreters and costs ofspecial interpretation services under 28 U.S.C. 1828 .... .

Other costs (please itemize) ................ ... .... . ....... .. .. . . . ..... ... .............. . TOTAL

$· - - - -3-84-.74-

SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.

Declaration

I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the

services for which fees have been charged were actually and necessarily performed. A copy of this bill has been served on all parties

in the following manner:
IZJ Electronic service

D First class mail, postage prepaid

D Other:

s/ Attorney: /s/ W. R. Loftis. Jr. and /s/ Robin E. Shea

Name of Attorney: W. R. Loftis Jr. and Robin E. Shea

For:

Plaintiffs

Name ofClaiming Party

Date:

Taxation of Costs

Costs are taxed in the amount of -$-38-4.7-4 - - - - - - - - - - - - - - - - - - - - and included in the j udgment.

/s/ John S. Brubaker
Clerk ofCoun

By:

-----~~~~------­
Deputy Clerk

January 17, 2013
Dnte

Case 1:09-cv-00411-WO-LPA Document 157 Filed 01/17/13 Page 1 of 1

 
 18BB,CLOSED,MEDIATION
U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:09−cv−00411−WO−LPA

NORTH CAROLINA GROWERS' ASSOCIATION, INC. et al v. SOLIS et al Assigned to: CHIEF JUDGE WILLIAM L. OSTEEN JR. Referred to: MAG/JUDGE L. PATRICK AULD Related Case: 1:13−cv−00468−WO−LPA
Case in other court: USCA, 09−01878
USCA, 09−02356
11−02235 Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 06/09/2009 Date Terminated: 02/07/2012 Jury Demand: None Nature of Suit: 790 Labor: Other Jurisdiction: U.S. Government Defendant

NORTH CAROLINA GROWERS' ASSOCIATION, INC.

represented by ROBIN E. SHEA CONSTANGY BROOKS &SMITH, LLP 100 N. CHERRY ST., STE. 300 WINSTON−SALEM, NC 27101 336−721−1001 Fax: 336−748−9112 Email: rshea@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM RANDOLPH LOFTIS , JR. CONSTANGY BROOKS &SMITH, LLP 100 N. CHERRY ST., STE. 300 WINSTON−SALEM, NC 27101 336−721−1001 Fax: 336−748−9112 Email: rloftis@constangy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
NATIONAL CHRISTMAS TREE ASSOCIATION

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff FLORIDA FRUIT &VEGETABLE

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

represented by

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 1 of 71

VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.
Plaintiff SNAKE RIVER FARMERS ASSOCIATION
Plaintiff NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
Plaintiff NORTH CAROLINA CHRISTMAS TREE ASSOCIATION
Plaintiff NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION
Plaintiff FLORIDA CITRUS MUTUAL

ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 2 of 71

Plaintiff NORTH CAROLINA AGRIBUSINESS COUNCIL, INC
Plaintiff MAINE FOREST PRODUCTS COUNCIL
Plaintiff ALTA CITRUS, LLC
Plaintiff EVERGLADES HARVESTING &HAULING, INC.
Plaintiff DESOTO FRUIT &HARVESTING, INC
Plaintiff FOREST RESOURCES ASSOCIATION

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 3 of 71

Plaintiff TITAN PEACH FARMS, INC.
Plaintiff H−2A USA, INC.
Plaintiff OVERLOOK HARVESTING COMPANY, LLC
V. Defendant HILDA L. SOLIS In her official capacity as United States Secretary of Labor

LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GEOFFREY FORNEY U. S. DEPARTMENT OF JUSTICE 450 FIFTH ST., NW WASHINGTON, DC 20001 202−532−4329 Fax: 202−532−4393 Email: geoff.forney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
GILL P. BECK U. S. ATTORNEY'S OFFICE U. S. COURTHOUSE 100 OTIS ST. ASHEVILLE, NC 28801 Email: Gill.Beck@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 4 of 71

Defendant UNITED STATES DEPARTMENT OF LABOR
Defendant JANET NAPOLITANO In her official capacity as United States Secretary of Homeland Security
Defendant UNITED STATES DEPARTMENT OF HOMELAND SECURITY
V. Intervenor Defendant UNITED FARM WORKERS

represented by GEOFFREY FORNEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GILL P. BECK (See above for address) ATTORNEY TO BE NOTICED
represented by GEOFFREY FORNEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GILL P. BECK (See above for address) ATTORNEY TO BE NOTICED
represented by GEOFFREY FORNEY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
GILL P. BECK (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON FARMWORKER JUSTICE 1126 16TH ST., NW STE. 270 WASHINGTON, DC 20036 312−546−4137 Fax: 312−261−9977 Email: marni.willenson@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS LAW OFFICES OF ROBERT J. WILLIS P.O. Box 1269 RALEIGH, NC 27602−1269 919−821−9031 Fax: 919−821−1763 Email: rwillis@rjwillis−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER SOUTHERN POVERTY LAW CENTER 400 WASHINGTON AVE. MONTGOMERY, AL 36104 334−956−8326 Fax: 334−956−8481 ATTORNEY TO BE NOTICED

Intervenor Defendant JAMES CEASE
Intervenor Defendant MARIO CENTENO−RODRIGUEZ

BRUCE N. GOLDSTEIN FARMWORKER JUSTICE 1126 16TH ST., NW STE. 270 WASHINGTON, DC 20036 202−293−5420 Fax: 202−293−5427 Email: bgoldstein@farmworkerjustice.org ATTORNEY TO BE NOTICED
GREGORY S. SCHELL MIGRANT FARMWORKER JUSTICE PROJECT FLORIDA LEGAL SERVICES, INC. 508 LUCERNE AVENEUE LAKE WORTH, FL 33460−3819 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL MIGRANT FARMWORKER JUSTICE PROGRAM ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED

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Intervenor Defendant JUAN CISNEROS−IBARRA
Intervenor Defendant LUIS ENRIQUE CISNEROS−IBARRA
Intervenor Defendant REYMUNDO GUTIERREZ

represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address)

Intervenor Defendant CARLOS LUIS GUZMAN−CENTENO
Intervenor Defendant JOSE RAUL GUZMAN−CENTENO
Intervenor Defendant ABELARDO HERNANDEZ−AGUAS

ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED

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Intervenor Defendant GREGORIO HUERTAS−SAMANO
Intervenor Defendant PEDRO IBARRA−AVILA
Intervenor Defendant ATANACIO LUGO−RINCON

BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY

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Intervenor Defendant OBDULA MALDONADO−ABELLANEDA
Intervenor Defendant MIGUEL ANGEL OLGUIN−HERNANDEZ
Intervenor Defendant ARTURO OLGUIN−MONROY

ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address)

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Intervenor Defendant OMERA RODRIGUEZ−GUZMAN
Intervenor Defendant DESIDERIO TOVAR−ZAPATA

LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address)

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Intervenor Defendant ALEJANDRO TREJO−LEON
Counter Claimant JUAN CISNEROS−IBARRA
Counter Claimant ALEJANDRO TREJO−LEON
Counter Claimant PEDRO IBARRA−AVILA

ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 12 of 71

Counter Claimant JAMES CEASE
Counter Claimant MARIO CENTENO−RODRIGUEZ
Counter Claimant DESIDERIO TOVAR−ZAPATA
Counter Claimant GREGORIO HUERTAS−SAMANO

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 13 of 71

Counter Claimant ABELARDO HERNANDEZ−AGUAS
Counter Claimant ARTURO OLGUIN−MONROY
Counter Claimant OMERA RODRIGUEZ−GUZMAN
Counter Claimant ATANACIO LUGO−RINCON

ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 14 of 71

Counter Claimant LUIS ENRIQUE CISNEROS−IBARRA
Counter Claimant UNITED FARM WORKERS
Counter Claimant MIGUEL ANGEL OLGUIN−HERNANDEZ
Counter Claimant OBDULA MALDONADO−ABELLANEDA

BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 15 of 71

Counter Claimant JOSE RAUL GUZMAN−CENTENO
Counter Claimant REYMUNDO GUTIERREZ
Counter Claimant CARLOS LUIS GUZMAN−CENTENO
V. Counter Defendant ALTA CITRUS, LLC
Counter Defendant DESOTO FRUIT &HARVESTING, INC

ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 16 of 71

Counter Defendant EVERGLADES HARVESTING &HAULING, INC.
Counter Defendant FLORIDA CITRUS MUTUAL
Counter Defendant FLORIDA FRUIT &VEGETABLE
Counter Defendant FOREST RESOURCES ASSOCIATION
Counter Defendant MAINE FOREST PRODUCTS COUNCIL
Counter Defendant

WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 17 of 71

NATIONAL CHRISTMAS TREE ASSOCIATION
Counter Defendant NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
Counter Defendant NORTH CAROLINA AGRIBUSINESS COUNCIL, INC
Counter Defendant NORTH CAROLINA CHRISTMAS TREE ASSOCIATION
Counter Defendant NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION
Counter Defendant OVERLOOK HARVESTING COMPANY, LLC

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 18 of 71

Counter Defendant SNAKE RIVER FARMERS ASSOCIATION
Counter Defendant TITAN PEACH FARMS, INC.
Counter Defendant VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.
Counter Claimant ALEJANDRO TREJO−LEON
Counter Claimant PEDRO IBARRA−AVILA

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 19 of 71

Counter Claimant JAMES CEASE
Counter Claimant MARIO CENTENO−RODRIGUEZ
Counter Claimant ABELARDO HERNANDEZ−AGUAS
Counter Claimant OMERA RODRIGUEZ−GUZMAN

BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 20 of 71

Counter Claimant LUIS ENRIQUE CISNEROS−IBARRA
Counter Claimant JOSE RAUL GUZMAN−CENTENO
Counter Claimant JUAN CISNEROS−IBARRA
Counter Claimant DESIDERIO TOVAR−ZAPATA

ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 21 of 71

Counter Claimant GREGORIO HUERTAS−SAMANO
Counter Claimant ARTURO OLGUIN−MONROY
Counter Claimant ATANACIO LUGO−RINCON
Counter Claimant UNITED FARM WORKERS
Counter Claimant

represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 22 of 71

MIGUEL ANGEL OLGUIN−HERNANDEZ
Counter Claimant OBDULA MALDONADO−ABELLANEDA
Counter Claimant REYMUNDO GUTIERREZ
Counter Claimant CARLOS LUIS GUZMAN−CENTENO
V. Counter Defendant ALTA CITRUS, LLC

MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 23 of 71

Counter Defendant DESOTO FRUIT &HARVESTING, INC
Counter Defendant EVERGLADES HARVESTING &HAULING, INC.
Counter Defendant FLORIDA CITRUS MUTUAL
Counter Defendant FLORIDA FRUIT &VEGETABLE
Counter Defendant FOREST RESOURCES ASSOCIATION
Counter Defendant

WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 24 of 71

H−2A USA, INC.
Counter Defendant MAINE FOREST PRODUCTS COUNCIL
Counter Defendant NATIONAL CHRISTMAS TREE ASSOCIATION
Counter Defendant NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
Counter Defendant NORTH CAROLINA AGRIBUSINESS COUNCIL, INC
Counter Defendant NORTH CAROLINA CHRISTMAS TREE ASSOCIATION

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 25 of 71

Counter Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.
Counter Defendant NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION
Counter Defendant OVERLOOK HARVESTING COMPANY, LLC
Counter Defendant SNAKE RIVER FARMERS ASSOCIATION
Counter Defendant TITAN PEACH FARMS, INC.
Counter Defendant VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 26 of 71

Counter Claimant JAMES CEASE
Counter Claimant MARIO CENTENO−RODRIGUEZ
Counter Claimant JUAN CISNEROS−IBARRA
Counter Claimant LUIS ENRIQUE CISNEROS−IBARRA

LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 27 of 71

Counter Claimant REYMUNDO GUTIERREZ
Counter Claimant CARLOS LUIS GUZMAN−CENTENO
Counter Claimant JOSE RAUL GUZMAN−CENTENO
Counter Claimant ABELARDO HERNANDEZ−AGUAS
Counter Claimant

ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 28 of 71

GREGORIO HUERTAS−SAMANO
Counter Claimant PEDRO IBARRA−AVILA
Counter Claimant ATANACIO LUGO−RINCON
Counter Claimant OBDULA MALDONADO−ABELLANEDA
Counter Claimant MIGUEL ANGEL OLGUIN−HERNANDEZ

represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 29 of 71

Counter Claimant ARTURO OLGUIN−MONROY
Counter Claimant OMERA RODRIGUEZ−GUZMAN
Counter Claimant DESIDERIO TOVAR−ZAPATA
Counter Claimant ALEJANDRO TREJO−LEON

LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 30 of 71

Counter Claimant UNITED FARM WORKERS
V. Counter Defendant ALTA CITRUS, LLC
Counter Defendant DESOTO FRUIT &HARVESTING, INC
Counter Defendant EVERGLADES HARVESTING &HAULING, INC.
Counter Defendant

ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 31 of 71

FLORIDA CITRUS MUTUAL
Counter Defendant FLORIDA FRUIT &VEGETABLE
Counter Defendant FOREST RESOURCES ASSOCIATION
Counter Defendant H−2A USA, INC.
Counter Defendant MAINE FOREST PRODUCTS COUNCIL
Counter Defendant NATIONAL CHRISTMAS TREE ASSOCIATION

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 32 of 71

Counter Defendant NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
Counter Defendant NORTH CAROLINA AGRIBUSINESS COUNCIL, INC
Counter Defendant NORTH CAROLINA CHRISTMAS TREE ASSOCIATION
Counter Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.
Counter Defendant NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION
Counter Defendant OVERLOOK HARVESTING COMPANY, LLC

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 33 of 71

Counter Defendant SNAKE RIVER FARMERS ASSOCIATION
Counter Defendant TITAN PEACH FARMS, INC.
Counter Defendant VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.
Counter Claimant JAMES CEASE

LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 34 of 71

Counter Claimant MARIO CENTENO−RODRIGUEZ
Counter Claimant JUAN CISNEROS−IBARRA
Counter Claimant LUIS ENRIQUE CISNEROS−IBARRA

ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 35 of 71

Counter Claimant REYMUNDO GUTIERREZ
Counter Claimant CARLOS LUIS GUZMAN−CENTENO
Counter Claimant JOSE RAUL GUZMAN−CENTENO

BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 36 of 71

Counter Claimant ABELARDO HERNANDEZ−AGUAS
Counter Claimant GREGORIO HUERTAS−SAMANO
Counter Claimant PEDRO IBARRA−AVILA

ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 37 of 71

Counter Claimant ATANACIO LUGO−RINCON
Counter Claimant OBDULA MALDONADO−ABELLANEDA
Counter Claimant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 38 of 71

MIGUEL ANGEL OLGUIN−HERNANDEZ
Counter Claimant ARTURO OLGUIN−MONROY
Counter Claimant OMERA RODRIGUEZ−GUZMAN

MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 39 of 71

Counter Claimant DESIDERIO TOVAR−ZAPATA
Counter Claimant ALEJANDRO TREJO−LEON
Counter Claimant UNITED FARM WORKERS

GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address) ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by MARNI WILLENSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT JAMES WILLIS (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANDREW H. TURNER (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 40 of 71

V. Counter Defendant ALTA CITRUS, LLC
Counter Defendant DESOTO FRUIT &HARVESTING, INC
Counter Defendant EVERGLADES HARVESTING &HAULING, INC.
Counter Defendant FLORIDA CITRUS MUTUAL
Counter Defendant FLORIDA FRUIT &VEGETABLE

ATTORNEY TO BE NOTICED
BRUCE N. GOLDSTEIN (See above for address) ATTORNEY TO BE NOTICED
GREGORY S. SCHELL (See above for address) ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 41 of 71

Counter Defendant FOREST RESOURCES ASSOCIATION
Counter Defendant H−2A USA, INC.
Counter Defendant MAINE FOREST PRODUCTS COUNCIL
Counter Defendant NATIONAL CHRISTMAS TREE ASSOCIATION
Counter Defendant NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS
Counter Defendant

WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 42 of 71

NORTH CAROLINA AGRIBUSINESS COUNCIL, INC
Counter Defendant NORTH CAROLINA CHRISTMAS TREE ASSOCIATION
Counter Defendant NORTH CAROLINA GROWERS' ASSOCIATION, INC.
Counter Defendant NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION
Counter Defendant OVERLOOK HARVESTING COMPANY, LLC
Counter Defendant SNAKE RIVER FARMERS ASSOCIATION

represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address)

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 43 of 71

Counter Defendant TITAN PEACH FARMS, INC.
Counter Defendant VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ROBIN E. SHEA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM RANDOLPH LOFTIS , JR. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/09/2009
06/09/2009
06/09/2009

# Docket Text
1 COMPLAINT against HILDA L SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350 receipt number 04180000000000616697.), filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL.(LOFTIS, WILLIAM) (Entered: 06/09/2009)
2 MOTION for Preliminary Injunction by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Responses due by 7/2/2009. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
3 MEMORANDUM re 2 MOTION for Preliminary Injunction filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA

Case: 1:09-cv-00411-WO-LPA document<docnum> filed <datefiled> 44 of 71

06/09/2009
06/09/2009 06/09/2009 06/09/2009 06/09/2009 06/09/2009 06/09/2009 06/09/2009
06/09/2009

GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
4 APPENDIX re 3 Memorandum by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit 1 − Swanton Aff., # 2 Exhibit 2 − Wicker Aff, # 3 Exhibit 3 − Shea Aff., # 4 Exhibit 4 − Maciborski Aff., # 5 Exhibit 5 − Cases)(LOFTIS, WILLIAM) (Additional attachment(s) added on 6/10/2009: # 6 Corrected Exhibit−Affidavit of Robin E. Shea) (Taylor, Abby). (Entered: 06/09/2009)
5 Summons Issued as to HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, US ATTORNEY GENERAL, US ATTONEY. (Attachments: # 1 Additional summons, # 2 Additional summons, # 3 Additional summons, # 4 Additional summons, # 5 Additional summons) (Taylor, Abby). (Entered: 06/09/2009)
6 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff ALTA CITRUS, LLC. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
7 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff FLORIDA CITRUS MUTUAL. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
8 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff FLORIDA FRUIT &VEGETABLE. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
9 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Taylor, Abby) (Entered: 06/09/2009)
10 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
11 MOTION to Expedite Hearing by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Responses due by 7/2/2009. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
12 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NATIONAL CHRISTMAS TREE ASSOCIATION. (LOFTIS,

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WILLIAM) (Entered: 06/09/2009)
13 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff TITAN PEACH FARMS, INC. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
14 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NORTH CAROLINA AGRIBUSINESS COUNCIL, INC. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
15 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NORTH CAROLINA GROWERS' ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
16 NOTICE of Filing Affidavit in Support re 3 Memorandum by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Affidavit C. Stanford Eury, Jr.)(LOFTIS, WILLIAM) (Entered: 06/09/2009)
17 NOTICE of Appearance by attorney ROBIN E. SHEA on behalf of Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL (SHEA, ROBIN) (Entered: 06/09/2009)
18 AMENDED DOCUMENT Certificate of Service for Pldg. # 1 through Pldg. # 17 by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (LOFTIS, WILLIAM) (Entered: 06/09/2009)
19 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff OVERLOOK HARVESTING COMPANY, LLC. (LOFTIS, WILLIAM) (Entered: 06/10/2009)
20 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff EVERGLADES HARVESTING &HAULING, INC. (LOFTIS, WILLIAM) (Entered: 06/10/2009)
21 NOTICE of Appearance by attorney GEOFFREY FORNEY on behalf of Defendants HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR,

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06/11/2009
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JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (FORNEY, GEOFFREY) (Entered: 06/10/2009)
22 NOTICE re 3 Memorandum by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Affidavit of Pam Helmsing)(LOFTIS, WILLIAM) (Entered: 06/11/2009)
23 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff H−2A USA, INC. (LOFTIS, WILLIAM) (Entered: 06/11/2009)
24 NOTICE of Appearance by attorney GILL P. BECK on behalf of Defendants HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (BECK, GILL) (Entered: 06/11/2009)
Telephone/Electronic Notice on 6/11/2009 to the following: Attorneys Shea, Loftis and Forney re: scheduling of telephone conference with Judge Osteen, Jr. on 6/11/09 @ 2:00 p.m. Counsel for plaintiff to initiate the telephone call. (Williamson, Wanda) (Entered: 06/11/2009)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Telephone Conference held on 6/11/2009. Hearing re: 2 Motion for Preliminary Injunction set for 6/22/2009 @ 9:30 a.m. before JUDGE WILLIAM L. OSTEEN, JR. in G−3. (Williamson, Wanda) (Entered: 06/11/2009)
25 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 06/11/09, that a hearing and oral argument be held on June 22, 2009 at 9:30 a.m. in Greensboro, North Carolina, Courtroom 3, on Plaintiffs' Motion for Preliminary Injunction. FURTHER that Defendants have until June 18, 2009 at 5:00 p.m. to file any written responses (including briefs or affidavits as appropriate) to Plaintiffs' Motion for Preliminary Injunction. Plaintiffs may file a reply to Defendants' responses on or before June 19, 2009 at 5:00 p.m. The court further directs Plaintiffs and Defendants to prepare and file their findings of fact and conclusions of law on or before June 19, 2009 at 5:00 p.m. and to e−mail their respective proposed orders as done in the normal course of business. (Law, Trina) (Entered: 06/11/2009)
Set Hearing: Preliminary Injunction Hearing set for 6/22/2009 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Law, Trina) (Entered: 06/11/2009)
Set Deadlines re 2 MOTION for Preliminary Injunction: Responses due by 6/18/2009. Replies due by 6/19/2009. (Law, Trina) (Entered: 06/11/2009)
26 AFFIDAVIT OF SERVICE ON GOVERNMENT on certified mail as to UNITED STATES DEPARTMENT OF LABOR served on 6/10/2009, answer due 8/10/2009; UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 6/10/2009, answer due 8/10/2009. on certified mail as to Victoria Morgan (Attachments: # 1 Exhibit A − Certified Mail Receipt)(LOFTIS, WILLIAM) (Entered: 06/12/2009)
27 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NORTH CAROLINA CHRISTMAS TREE ASSOCIATION. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
28 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff FOREST RESOURCES ASSOCIATION. (LOFTIS, WILLIAM)

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06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/15/2009 06/18/2009 06/18/2009 06/18/2009
06/18/2009
06/18/2009

(Entered: 06/12/2009)
29 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff SNAKE RIVER FARMERS ASSOCIATION. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
30 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
31 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff MAINE FOREST PRODUCTS COUNCIL. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
32 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff DESOTO FRUIT &HARVESTING, INC. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
33 CORPORATE DISCLOSURE STATEMENT filed pursuant to FRCP 7.1(a) by Plaintiff NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION. (LOFTIS, WILLIAM) (Entered: 06/12/2009)
34 AFFIDAVIT OF SERVICE ON GOVERNMENT on certified mail as to HILDA L. SOLIS served on 6/12/2009, answer due 8/11/2009 on certified mail as to Waterloo. (Attachments: # 1 Exhibit A − Certified Mail receipt)(LOFTIS, WILLIAM) (Entered: 06/15/2009)
35 AFFIDAVIT OF SERVICE ON GOVERNMENT on Certified Mail as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 6/12/2009, answer due 8/10/2009. on Certified Mail as to Jonathan P (last name illegible) (Attachments: # 1 Exhibit A − Certified Mail Receipt)(LOFTIS, WILLIAM) (Entered: 06/18/2009)
36 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction, 3 Memorandum filed by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Replies due by 6/19/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(FORNEY, GEOFFREY) (Entered: 06/18/2009)
37 MOTION to Intervene as Parties Defendant by United Farm Workers, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. Responses due by 7/13/2009 (Attachments: # 1 Affidavit UFW)(WILLIS, ROBERT) (Entered: 06/18/2009)
38 MEMORANDUM re 37 MOTION to Intervene as Parties Defendant in Support filed by United Farm Workers, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Affidavit UFW)(WILLIS, ROBERT) (Entered: 06/18/2009)
39 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by United Farm Workers, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA,

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06/19/2009 06/19/2009 06/19/2009
06/19/2009
06/19/2009

REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. Replies due by 7/6/2009. (Attachments: # 1 Exhibit 1 − UFW v Chao First Amended Complaint, # 2 Exhibit 2 − FW Comment, # 3 Exhibit 3 − Tri−County v Brock, # 4 Exhibit 4 − VAGA v Donovan, # 5 Exhibit 5 − NAACP v Donovan)(WILLIS, ROBERT) (Entered: 06/18/2009)
40 AFFIDAVIT OF SERVICE ON GOVERNMENT filed by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Exhibit A − Certified Mail Receipt) (LOFTIS, WILLIAM) (Entered: 06/19/2009)
41 Proposed Findings of Fact and Conclusions of Law by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(FORNEY, GEOFFREY) (Entered: 06/19/2009)
42 RESPONSE in Opposition re 37 MOTION to Intervene as Parties Defendant filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Replies due by 7/9/2009. (LOFTIS, WILLIAM) (Entered: 06/19/2009)
43 APPENDIX re 42 Response in Opposition to Motion by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit A − Second Aff. Eury)(LOFTIS, WILLIAM) (Entered: 06/19/2009)
44 REPLY to Response to 2 MOTION for Preliminary Injunction filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA

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06/19/2009 06/19/2009 06/19/2009 06/19/2009 06/22/2009

AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (LOFTIS, WILLIAM) (Entered: 06/19/2009)
45 APPENDIX re 44 Reply to Response to Motion by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit A − First Amended Complaint, # 2 Exhibit B − Federal Defendants' Answer)(LOFTIS, WILLIAM) (Entered: 06/19/2009)
46 Proposed Findings of Fact and Conclusions of Law by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Text of Proposed Order)(LOFTIS, WILLIAM) (Entered: 06/19/2009)
47 MOTION to Participate in Oral Argument in June 22 Hearing on Plaintiffs' Motion for Preliminary Injuction re 2 MOTION for Preliminary Injunction by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. Responses due by 7/13/2009. (Attachments: # 1 Text of Proposed Order)(WILLIS, ROBERT) (Entered: 06/19/2009)
48 Proposed Findings of Fact and Conclusions of Law by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON.(WILLIS, ROBERT) (Entered: 06/19/2009)
50 NOTICE of Appearance by attorney MARNI WILLENSON on behalf of Intervenor Defendants UNITED FARM WORKERS, MARIO CENTENO−RODRIGUEZ, LUIS ENRIQUE CISNEROS−IBARRA, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO,

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06/22/2009 06/22/2009 06/23/2009
06/23/2009 06/23/2009
06/24/2009 06/26/2009

ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (WILLENSON, MARNI) (Entered: 06/22/2009)
ORAL ORDER granting 37 Motion to Intervene for the purpose of the Preliminary Injunction Hearing only; granting 47 Motion to Participate in Oral Argument in June 22 Hearing by JUDGE WILLIAM L. OSTEEN JR. on 6/22/2009. (Williamson, Wanda) (Entered: 06/22/2009)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Motion Hearing held on 6/22/2009 re 2 MOTION for Preliminary Injunction. The following counsel was present: Attorneys William Loftis and Robin Shea for the plaintiff. AUSA Gill Beck and Geoffrey Forney for the defendant, and Attorneys Robert Willis and Marni Willenson for the Intervenor−Defendants. The parties may file supplemental briefs by 10:30 a.m. on 6/23/2009 as stated on the record. Matter remain under advisement(Court Reporter Joe Armstrong.) (Williamson, Wanda). (Entered: 06/22/2009)
52 Supplemental BRIEF (Irreparable Harm Issue) filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit 1 − Illinois Bell v. Hurley, # 2 Exhibit 2 − Hollywood Healthcare v. Deltec)(LOFTIS, WILLIAM) (Entered: 06/23/2009)
53 Supplemental BRIEF by Federal Defendants HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (FORNEY, GEOFFREY) (Entered: 06/23/2009)
54 Amended Supplemental BRIEF re 51 Brief filed by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Exhibit E − Affidavit Eury 2−25−2003, # 2 Exhibit F − Affidavit Eury 3−6−2003, # 3 Exhibit G − UFW's Motion for Partial Summary Judgment, # 4 Exhibit H − UFWs Motion to Expedite)(WILLIS, ROBERT) (Entered: 06/23/2009)
55 AFFIDAVIT OF SERVICE ON GOVERNMENT as to JANET NAPOLITANO served on 6/18/2009, answer due 8/17/2009 as to Janet Napolitano. (Attachments: # 1 Exhibit A − Certified Mail Receipt)(LOFTIS, WILLIAM) (Entered: 06/24/2009)
56 NOTICE of Appearance by attorney BRUCE N. GOLDSTEIN on behalf of Intervenor Defendants UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA

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06/29/2009 06/29/2009
07/01/2009 07/06/2009 07/07/2009 07/07/2009 07/09/2009
07/27/2009

MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON (GOLDSTEIN, BRUCE) (Entered: 06/26/2009)
57 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 6/29/09, Re: Plaintiffs' Motion for Preliminary Injunction. For the reasons set forth in the memorandum opinion, IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction (Doc. 2 ) is GRANTED. (Welch, Kelly) Modified on 6/30/2009 to edit text (Welch, Kelly). (Entered: 06/29/2009)
58 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 06/29/09, for the reasons stated in the Memorandum Opinion filed simultaneously with this Order, Plaintiffs' Motion for Preliminary Injunction (Doc. 2 ) is GRANTED. FURTHER that Defendants Department of Labor ("DOL"), Hilda L. Solis, in her official capacity as the Secretary of the DOL, the Department Homeland Security ("DHS"), and Janet Napolitano, in her official capacity as the Secretary of DHS, are temporarily enjoined from implementing and enforcing the Temporary Employment of H−2A Aliens in the United States, 74 Fed. Reg. 25,972, 25,972 (May 29, 2009). This temporary injunction shall remain in effect until the completion of a trial on the merits of this case, the creation of a new H−2A Rule in accordance with the Administrative Procedures Act, 5 U.S.C. § 551 et seq., or further order of this court. (Law, Trina) (Entered: 06/30/2009)
59 AMENDED MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 07/01/09, Re: Plaintiffs' Motion for Preliminary Injunction. For the reasons set forth in the memorandum opinion, IT IS ORDERED that Plaintiffs' Motion for Preliminary Injunction (Doc. 2 ) is GRANTED. (See Page 17, Line 1 for Change in Wording). (Law, Trina) (Entered: 07/01/2009)
60 AFFIDAVIT OF SERVICE ON GOVERNMENT as to as to USDOL. (Attachments: # 1 Exhibit A − Certified Mail Receipt)(LOFTIS, WILLIAM) (Entered: 07/06/2009)
61 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 07/07/09, that Plaintiffs and Defendants shall have until July, 27, 2009 to file any additional responses to these two motions. FURTHER that Applicant Defendants shall have until August 6, 2009 to file any reply. The court will issue a final ruling on Applicant Defendants' motions following its consideration of any additional pleadings filed pursuant with this order. (Law, Trina) (Entered: 07/07/2009)
Set Deadlines: Plaintiffs' and Defendants' Responses due by 7/27/2009. Defendants' Replies due by 8/6/2009. (Law, Trina) (Entered: 07/07/2009)
62 NOTICE of Filings Affidavits In Support of Its Motion to Intervene as Parties Defendant (doc. no. 37 ) by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Affidavit Jose Raul Guzman−Centeno, # 2 Affidavit Carlos Luis Guzman−Avila, # 3 Affidavit Juan Luis Guzman−Centeno) (WILLIS, ROBERT) Modified on 7/10/2009 to edit text to accurately reflect title of document. (Lloyd, Donna) (Entered: 07/09/2009)
63 RESPONSE in Opposition re 61 Order, Plaintiffs' Supplemental Brief in Opposition to Motion to Intervene filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE

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07/27/2009
07/27/2009
08/04/2009 08/04/2009 08/05/2009 08/06/2009
08/06/2009

ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Replies due by 8/13/2009. (LOFTIS, WILLIAM) (Entered: 07/27/2009)
64 APPENDIX re 63 Response in Opposition to Motion by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit 1 − Nat. Union v. Reichhold, # 2 Exhibit 2 − Torpharm v. Novopharm, # 3 Exhibit 3 − Dec. Eury)(LOFTIS, WILLIAM) (Entered: 07/27/2009)
65 RESPONSE re 38 Memorandum, 37 MOTION to Intervene as Parties Defendant filed by JOSE RAUL GUZMAN−CENTENO, JAMES CEASE, LUIS ENRIQUE CISNEROS−IBARRA, MIGUEL ANGEL OLGUIN−HERNANDEZ, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, UNITED FARM WORKERS, JUAN CISNEROS−IBARRA, ALEJANDRO TREJO−LEON, REYMUNDO GUTIERREZ, DESIDERIO TOVAR−ZAPATA, OMERA RODRIGUEZ−GUZMAN, ABELARDO HERNANDEZ−AGUAS, ATANACIO LUGO−RINCON, ARTURO OLGUIN−MONROY, MARIO CENTENO−RODRIGUEZ, CARLOS LUIS GUZMAN−CENTENO, OBDULA MALDONADO−ABELLANEDA filed by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Replies due by 8/13/2009. (FORNEY, GEOFFREY) (Entered: 07/27/2009)
66 NOTICE OF APPEAL by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (FORNEY, GEOFFREY) (Entered: 08/04/2009)
67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Responses due by 8/27/2009. (Attachments: # 1 Text of Proposed Order)(FORNEY, GEOFFREY) (Entered: 08/04/2009)
68 Electronic Transmission of Notice of Appeal to US Court of Appeals re 66 Notice of Appeal. (Law, Trina) (Entered: 08/05/2009)
TEXT ORDER entered by JUDGE WILLIAM L. OSTEEN JR. on 8/6/09. On June 29, 2009, this court issued a Memorandum Opinion and Order, preliminary enjoining Defendants from reinstating a H−2A regulation. (Docs. 57, 58.) On August 4, 2009, Defendants appealed the courts June 29, 2009 order. (Doc. 66.) Contemporaneous with filing its Notice of Appeal, Defendants filed a Motion to Stay that order pending appeal. (Doc. 67.) So as to expeditiously resolve Defendants motion, and in light of the similarity between the issues and arguments raised in Defendants motion and the June 29, 2009 Memorandum Opinion and Order, IT IS ORDERED that Plaintiffs file a response brief to Defendants motion (Doc. 67) on or before August 13, 2009. If Defendants wish to file a reply brief, they must do so on or before August 20, 2009.(McCarty, Dianne) (Entered: 08/06/2009)
69 REPLY to Response to 37 MOTION to Intervene as Parties Defendant filed by UNITED FARM WORKERS, JAMES CEASE, MARIO

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08/06/2009
08/06/2009 08/06/2009 08/07/2009 08/10/2009 08/13/2009
08/13/2009

CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (WILLIS, ROBERT) (Entered: 08/06/2009)
70 NOTICE of Filing Exhibits re 69 Reply to Response to Motion by UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Exhibit NCGA Intervention Br., # 2 Exhibit Declaration of Lori Elmer, # 3 Exhibit 1 to Declaration of Lori Elmer, # 4 Exhibit Declaration of Jack Holtzman, # 5 Exhibit 1 to Declaration of Jack Holtzman)(WILLIS, ROBERT) (Entered: 08/06/2009)
Set Response &Reply Deadlines re 67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum: Response by Plaintiffs due by 8/13/2009. Reply by Defendants due by 8/20/2009. (Law, Trina) (Entered: 08/07/2009)
73 NOTICE of Docketing Appeal from USCA re 66 Notice of Appeal filed by UNITED STATES DEPARTMENT OF LABOR, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JANET NAPOLITANO. USCA Case Number: 09−1878. USCA Case Manager: Jeffrey S. Neal. (Law, Trina) (Entered: 08/11/2009)
71 MOTION for Clarification of Court's Order by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. Responses due by 8/31/2009. (Attachments: # 1 Text of Proposed Order) (FORNEY, GEOFFREY) (Entered: 08/07/2009)
72 ANSWER to 1 Complaint by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (FORNEY, GEOFFREY) (Entered: 08/10/2009)
74 RESPONSE in Opposition re 67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Replies due by 8/31/2009. (LOFTIS, WILLIAM) (Entered: 08/13/2009)
75 APPENDIX re 74 Response in Opposition to Motion by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA

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08/20/2009 08/25/2009 08/25/2009
08/28/2009
08/28/2009 09/10/2009

GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Tab 1)(LOFTIS, WILLIAM) (Entered: 08/13/2009)
76 REPLY to Response to 67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum filed by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR. (FORNEY, GEOFFREY) (Entered: 08/20/2009)
***Motions Submitted: 67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum to JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 08/25/2009)
77 MOTION for Leave to File Surreply by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Responses due by 9/17/2009. (Attachments: # 1 Exhibit A − Plaintiffs' Surreply)(LOFTIS, WILLIAM) (Entered: 08/25/2009)
78 MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Clarification of Court's Order by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Responses due by 9/21/2009. (Attachments: # 1 Text of Proposed Order)(SHEA, ROBIN) (Entered: 08/28/2009)
***Motions Submitted: 78 MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Clarification of Court's Order MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Clarification of Court's Order MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Clarification of Court's Order MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Clarification of Court's Order to JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 08/28/2009)
79 RESPONSE re 71 MOTION for Clarification of Court's Order filed by UNITED STATES DEPARTMENT OF LABOR, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JANET NAPOLITANO filed by NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL

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09/10/2009
09/10/2009
09/11/2009 09/16/2009 09/16/2009 09/21/2009

EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. Replies due by 9/28/2009. (SHEA, ROBIN) (Entered: 09/10/2009)
80 APPENDIX re 79 Response to Motion by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit 1 Wicker Affidavit, # 2 Exhibit 2 − WH−92, # 3 Exhibit 3 − WH− 531, # 4 Exhibit 4 RES Dec. (Part 1 of 8), # 5 Exhibit 4 RES Aff. (Part 2 of 8), # 6 Exhibit 4 RES Aff (part 3 of 8), # 7 Exhibit 4 RES Aff (part 4 of 8))(SHEA, ROBIN) Modified on 9/14/2009 ((pleading located in expandable file). Williamson, Wanda). (Entered: 09/10/2009)
81 Additional Attachments re 80 APPENDIX by Plaintiffs NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, MAINE FOREST PRODUCTS COUNCIL, ALTA CITRUS, LLC, EVERGLADES HARVESTING &HAULING, INC., DESOTO FRUIT &HARVESTING, INC, FOREST RESOURCES ASSOCIATION, TITAN PEACH FARMS, INC., H−2A USA, INC., OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA FRUIT &VEGETABLE, VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, FLORIDA CITRUS MUTUAL. (Attachments: # 1 Exhibit 4 RES Dec (part 6 of 8), # 2 Exhibit 4 RES Dec (part 7 of 8), # 3 Exhibit 4 RES Dec (part 8 of 8), # 4 Exhibit 5 − Executive Order, # 5 Exhibit 6 − Unpublished case)(SHEA, ROBIN) Modified on 9/14/2009 (pleading located in expandable file) (Williamson, Wanda). (Entered: 09/10/2009)
82 NOTICE of Hearing: Status Conference as to Motion to Stay and Motion for Clarification of Court Order set for 9/18/2009 12:45 PM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Powell, Gloria) (Entered: 09/11/2009)
Telephone Notice to Attorneys William Loftis and Geoff Forney re: telephone conference scheduled for 9/17/2009 @ 10:00 a.m. Attorney Loftis will initiate the call. (Williamson, Wanda) (Entered: 09/16/2009)
83 REPLY to Response to 71 MOTION for Clarification of Court's Order NOTICE OF FILING OF EXHIBIT filed by Intervenor Defendants UNITED FARM WORKERS, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON. (Attachments: # 1 Affidavit Sworn Declaration of Frank Velasquez, # 2 Supplement Collective Bargaining Agreement)(WILLIS, ROBERT) (Entered: 09/16/2009)
TEXT ORDER entered by JUDGE WILLIAM L. OSTEEN JR. on 9/21/2009. On September 11, 2009, this court scheduled a status conference regarding Defendants

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09/21/2009 09/21/2009 09/30/2009 10/08/2009 10/09/2009
10/14/2009 10/29/2009

Motion to Stay (Doc. 67) and Motion for Clarification (Doc. 71). (Doc. 82.) On September 17, 2009, one day before the status conference was scheduled to take place, the court held a telephone conference with attorneys representing Plaintiffs, Defendants and Applicant Defendants. During the telephone conference, Plaintiffs and Defendants jointly requested that the court continue the status conference and delay ruling on Defendants motions for three weeks. The parties maintained that these actions by the court are necessary to allow them a full opportunity to complete settlement discussions that have been conducted in accordance with Fourth Circuit local rules. Applicant Defendants participated in the telephone conference and advised the court that they did not object to the parties joint request. For good cause shown, it is ORDERED that the status conference regarding Defendants Motion to Stay (Doc. 67) and Motion for Clarification (Doc. 71) is continued to October 9, 2009 at 1:00 p.m. In light of the parties joint request and the absence of an objection from Applicant Defendants, the court will reserve ruling on Defendants motions (Docs. 67, 71) until that date.(McCarty, Dianne) (Entered: 09/21/2009)
84 REPLY to Response to 71 MOTION for Clarification of Court's Order filed by HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, JANET NAPOLITANO, UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (FORNEY, GEOFFREY) Modified on 9/22/2009 to edit duplicate text. (Lloyd, Donna) (Entered: 09/21/2009)
Set Deadlines/Hearings: Motion Hearing set for 10/9/2009 01:00 PM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 09/22/2009)
85 NOTICE of Change of Address by MARNI WILLENSON. (WILLENSON, MARNI) (Entered: 09/30/2009)
Telephone Notice to Attorneys Randy Loftis and Geoff Forney and Gill Beck re: Motion Hearing set for 10/9/2009 04:00 PM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) . (Entered: 10/08/2009)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: The following counsel was present: Attorneys William Loftis and Robin Shea for the plaintiffs and Attorneys Geoffrey Forney and Gill Beck appeared on behalf of the defendants. Attorney Robert Willis appeared for the intervenor−defendants.Motion Hearing held on 10/9/2009 re 67 MOTION to Stay Grant of Preliminary Injunction and Supporting Memorandum filed by UNITED STATES DEPARTMENT OF LABOR, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JANET NAPOLITANO, 71 MOTION for Clarification of Court's Order filed by UNITED STATES DEPARTMENT OF LABOR, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JANET NAPOLITANO. The motions are Denied for reasons stated on the record. A written order will be entered. (Court Reporter Joe Armstrong.) (Williamson, Wanda) (Entered: 10/09/2009)
86 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 10/14/09, for the reasons set forth in the record at a hearing on these motions held October 9, 2009, Defendant's Motion for Clarification (Doc. 71 ) is DENIED. FURTHER that Defendant's Motion to Stay (Doc. 67 ) is DENIED. (Law, Trina) (Entered: 10/14/2009)
87 TRANSCRIPT filed.
NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.

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11/20/2009 12/03/2009 12/04/2009
12/04/2009 12/07/2009
12/09/2009
12/09/2009 12/17/2009

re Motion Hearing held June 22,2009, (Preliminary Injunction) Court Reporter J. Armstrong, Telephone number (336) 332−6034. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Request Redaction due by 11/12/2009, Redaction Request due 11/19/2009. Redacted Transcript Deadline set for 11/30/2009. Release of Transcript Restriction set for 1/27/2010. (Armstrong, Joe) (Entered: 10/29/2009)
88 ORDER of USCA as to 66 Notice of Appeal that upon review of submissions relative to the motion for stay pending appeal, the Court denies the motion. USCA Case Number: 09−1878. (Law, Trina) (Entered: 11/20/2009)
89 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 12/3/09, that Applicant Intervenors Motion to Intervene as Parties Defendant (Doc. 37 ) is GRANTED. (Law, Trina) (Entered: 12/03/2009)
90 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 12/4/09, that Plaintiff's Motion for Leave to File Surreply (Doc. 77 ) and Plaintiffs' Response to Defendant's Motion for Clarification of Court's Order and Plaintiff's Request for Extension of Time to File Substantive Response (Doc. 78 ) are DENIED without prejudice as MOOT. Accordingly, the court sets this matter for a status conference on the 18th day of December 2009 at 9:30 a.m. in Greensboro Courtroom 3 to address these issues. If more convenient for the parties, the court will permit counsel to attend in person or by a telephone. Counsel should notify the case manager of their preference on or before the close of business on December 14, 2009. (Law, Trina) (Entered: 12/04/2009)
Set Hearing: Status Conference set for 12/18/2009, 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Law, Trina) (Entered: 12/04/2009)
91 NOTICE OF APPEAL as to 57 Memorandum Opinion and Order, 59 Memorandum Opinion and Order by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Filing fee $ 455, receipt number 0418−689979. (WILLIS, ROBERT) (Entered: 12/07/2009)
92 NOTICE of Docketing Appeal from USCA re 91 Notice of Appeal filed by JOSE RAUL GUZMAN−CENTENO, JAMES CEASE, LUIS ENRIQUE CISNEROS−IBARRA, MIGUEL ANGEL OLGUIN−HERNANDEZ, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, UNITED FARM WORKERS, JUAN CISNEROS−IBARRA, ALEJANDRO TREJO−LEON, REYMUNDO GUTIERREZ, DESIDERIO TOVAR−ZAPATA, OMERA RODRIGUEZ−GUZMAN, ABELARDO HERNANDEZ−AGUAS, ATANACIO LUGO−RINCON, ARTURO OLGUIN−MONROY, MARIO CENTENO−RODRIGUEZ, CARLOS LUIS GUZMAN−CENTENO, OBDULA MALDONADO−ABELLANEDA. USCA Case Number: 09−2356. (Law, Trina) (Entered: 12/09/2009)
ELECTRONIC NOTICE to all parties re: Telephone/Status Conference is scheduled for 12/18/2009 @ 9:30 a.m. before Judge William L. Osteen, Jr. The parties prefer to participate by telephone (see 90 order). (Williamson, Wanda). (Entered: 12/09/2009)
93 DEFENDANT−INTERVENORS ANSWER to 1 Complaint, AFFIRMATIVE DEFENSES, Counterclaim against by JUAN CISNEROS−IBARRA, ALEJANDRO TREJO−LEON, PEDRO IBARRA−AVILA, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, DESIDERIO TOVAR−ZAPATA, GREGORIO HUERTAS−SAMANO, ABELARDO HERNANDEZ−AGUAS, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN,

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ATANACIO LUGO−RINCON, LUIS ENRIQUE CISNEROS−IBARRA, UNITED FARM WORKERS, MIGUEL ANGEL OLGUIN−HERNANDEZ, OBDULA MALDONADO−ABELLANEDA, JOSE RAUL GUZMAN−CENTENO, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO. (WILLIS, ROBERT) (Entered: 12/17/2009)
94 MOTION for Notice of Wage Dispute to H−2A Employers by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Responses due by 1/10/2010. (WILLIS, ROBERT) (Entered: 12/17/2009)
95 MEMORANDUM re 94 MOTION for Notice of Wage Dispute to H−2A Employers filed by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 12/17/2009)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.Telephone Conference held on 12/18/2009. On December 18, 2009, this court held a status conference by telephone. Randy Loftis, Robin Shea, Geoffrey Forney and Robert Willis present. This court will take no further action in this case until the pending motion (Doc. 94) is ripe for hearing and any responses have been filed to the answer and counterclaims filed by the United Farm Workers. (Doc. 93). At that time, this court will set the matter for a hearing and/or status conference. No discovery will be conducted until the status conference or hearing is held. The Clerk is directed not to set this matter for an initial pretrial conference until further notice of the court. If the parties require any change or modification to the procedure set out herein, they are directed to either file an appropriate motion or request a further conference with the court. (McCarty, Dianne) (Entered: 12/18/2009)
96 RESPONSE in Opposition re 94 MOTION for Notice of Wage Dispute to H−2A Employers filed by JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR. Replies due by 1/21/2010. (Attachments: # 1 Text of Proposed Order)(FORNEY, GEOFFREY) (Entered: 01/07/2010)
97 RESPONSE re 94 MOTION for Notice of Wage Dispute to H−2A Employers filed by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. Replies due by 1/28/2010. (LOFTIS, WILLIAM) (Entered: 01/11/2010)
98 Transcript of Proceedings held on 10/09/09, before Judge William L. Osteen, Jr.. Court Reporter J. Armstrong, Telephone number (336) 332−6034. Transcript may

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be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.<P> Redaction Request due 2/5/2010. Redacted Transcript Deadline set for 2/16/2010. Release of Transcript Restriction set for 4/15/2010. (Armstrong, Joe) (Entered: 01/15/2010)
99 ANSWER to Complaint by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 01/19/2010)
Motions Submitted: 94 MOTION for Notice of Wage Dispute to H−2A Employers to JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 02/04/2010)
100 ANSWER to 1 Complaint Amended AFFIRMATIVE DEFENSES, Counterclaim Amended by ALEJANDRO TREJO−LEON, PEDRO IBARRA−AVILA, JAMES CEASE, MARIO CENTENO−RODRIGUEZ, ABELARDO HERNANDEZ−AGUAS, OMERA RODRIGUEZ−GUZMAN, LUIS ENRIQUE CISNEROS−IBARRA, JOSE RAUL GUZMAN−CENTENO, JUAN CISNEROS−IBARRA, DESIDERIO TOVAR−ZAPATA, GREGORIO HUERTAS−SAMANO, ARTURO OLGUIN−MONROY, ATANACIO LUGO−RINCON, UNITED FARM WORKERS, MIGUEL ANGEL OLGUIN−HERNANDEZ, OBDULA MALDONADO−ABELLANEDA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO. (WILLIS, ROBERT) (Entered: 02/08/2010)
101 STATUS REPORT by JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR. (FORNEY, GEOFFREY) (Entered: 02/16/2010)
102 ANSWER to AMENDED COUNTERCLAIMS. by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. (LOFTIS, WILLIAM) (Entered: 02/25/2010)
103 Consent MOTION for Extension of Time To File Motion FOR CLASS CERTIFICATION by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS,

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GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Responses due by 3/22/2010. (Attachments: # 1 Text of Proposed Order)(WILLIS, ROBERT) (Entered: 02/26/2010)
Motions Referred: 103 Consent MOTION for Extension of Time To FILE MOTION FOR CLASS CERTIFICATION to MAG/JUDGE WALLACE W. DIXON. (Williamson, Wanda) (Entered: 03/09/2010)
104 ORDER signed by MAG/JUDGE WALLACE W. DIXON on 3/10/10, granting 103 Consent Motion for Extension of Time, that the time period within which defendant−intervenors shall have to file a separate motion for a determination under Rule 23(c)(1)(A), Fed.R.Civ.P., as to whether any of the counterclaims alleged by the defendant−intervenors may be maintained as a plaintiff or defendant class action is extended to the date falling 30 days after the date on which the Court conducts the initial case management meeting pursuant to Rules 16 and 26(f), Fed.R.Civ.P., and Local Rule 26.1, MDNC. (Law, Trina) (Entered: 03/10/2010)
105 NOTICE of Appearance by attorney ROBERT JAMES WILLIS on behalf of Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 03/12/2010)
106 NOTICE of Appearance by attorney ROBERT JAMES WILLIS on behalf of Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 03/12/2010)
107 MANDATE of USCA as to 66 Notice of Appeal, that this Court's order dismissing this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure takes effect today. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. USCA Case Number: 09−1878. (Law, Trina) (Entered: 03/18/2010)
108 NOTICE of Hearing: Status Conference/Motion Hearing set for 4/9/2010 09:30 AM in Greensboro Courtroom #3 before JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 03/26/2010)
109 ORDER of USCA as to 91 Notice of Appeal, that upon consideration of the motion to dismiss this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, and there appearing no opposition, the Court grants the motion. USCA Case Number: 09−2356. (Law, Trina) (Entered: 03/31/2010)
110 MANDATE of USCA as to 91 Notice of Appeal, that this Court's order dismissing this appeal pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure takes effect today. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. USCA Case Number: 09−2356. (Law, Trina) (Entered: 03/31/2010)

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111 ORDER denying 94 Motion for wage dispute. As the case appears ripe to proceed with a Fed R. Civ. P. 26(f) conference (LR 16.1), the court directs that this case be calendared for a conference. Signed by JUDGE WILLIAM L. OSTEEN JR. on 4/9/10. (Wilson, JoAnne) (Entered: 04/09/2010)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Status Conference held on 4/9/2010. Attorney William Loftis and Robin Shea appeared on behalf of the plaintiff. AUSA Geoffrey Forney, AUSA Gill Beck appeared on behalf of the defendant. Attorney Robert Willis and Gregory Schell appeared on behalf of Intervenor−Defendants. 94 Motion for Wage Dispute−DENIED. Court directs case be calendered for an Initial Pretrial Conference. (Court Reporter Joe Armstrong.) (Williamson, Wanda) (Entered: 04/09/2010)
112 NOTICE of Initial Pretrial Conference Hearing: Initial Pretrial Conference Hearing set for 5/19/2010 09:30 AM in Durham Courtroom #1 before MAG/JUDGE WALLACE W. DIXON. (Garrett, Kim) (Entered: 04/12/2010)
113 Rule 26(f) Report (Joint) filed by all parties by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (Attachments: # 1 Appendix A − Tolling Agreement, # 2 Supplement Second Amended Answer and Counterclaims, # 3 Text of Proposed Order)(WILLIS, ROBERT) (Entered: 05/13/2010)
Motions Referred: 113 Rule 26(f) Report (Joint) filed by all parties to MAG/JUDGE WALLACE W. DIXON− (Garrett, Kim) (Entered: 05/14/2010)
114 AMENDED Rule 26(f) Report (Joint) filed by all parties by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (Attachments: # 1 Appendix A − Tolling Agreement, # 2 Supplement Second Amended Answer and Counterclaims, # 3 Text of Proposed Order)(WILLIS, ROBERT) (Entered: 05/17/2010)
Motions Referred: 114 Rule 26(f) Report (Joint) filed by all parties to MAG/JUDGE WALLACE W. DIXON− (Garrett, Kim) (Entered: 05/17/2010)
ORDER approving 114 RULE 26F REPORT (JOINT). This approval notwithstanding, the court is not accepting the parties' proposal that discovery be stayed. A stay will be entered, if at all, only upon a separate motion showing good cause. Signed by MAG/JUDGE WALLACE W. DIXON on 5/18/2010. Discovery shall be placed on the exceptional case−management track. Mediation shall be conducted within 75 days after the motion for class certification by the defendant intervenors is decided by the Court. The parties agree that the mediator shall be: Jonathan Harkavy. The defendants should be allowed until June 30, 2010 to join additional parties under the Federal Rules of Civil Procedure or to amend pleadings. The plaintiffs shall have until and including the date falling 75 days after this Joint Rule 26(f) Report is approved to file a motion (s) to join additional parties under the Federal Rules of Civil Procedure or to amend pleadings. The parties have not been able to agree on consent to a magistrate judge. Trial of the action is expected to take approximately 5 days. A jury trial has been demanded. (DIXON, WALLACE) Modified on 5/18/2010 to supplement text (Law, Trina). (Entered: 05/18/2010)

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Set Scheduling Order Deadlines: Defendants' Amended Pleadings due by 6/30/2010. Defendants' Joinder of Parties due by 6/30/2010. Plaintiffs' Amended Pleadings due by 8/1/2010. Plaintiffs' Joinder of Parties due by 8/1/2010. (Law, Trina) (Entered: 05/18/2010)
115 Second Amended ANSWER to 1 Complaint by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 05/18/2010)
116 Joint MOTION to Stay Discovery by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Responses due by 6/11/2010. (WILLIS, ROBERT) (Entered: 05/18/2010)
117 MEMORANDUM re 116 Joint Motion to Stay Discovery filed by Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 05/18/2010)
118 NOTICE of Appearance by attorney ROBERT JAMES WILLIS on behalf of Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 05/20/2010)
CASE REFERRED to Mediation pursuant to Local Rule 83.9b of the Rules of Practice and Procedure of this Court. (Gammon, Cheryl) (Entered: 05/24/2010)
MEDIATION SCHEDULING ORDER ; Mediation shall be conducted within 75 days after the motion for class certification by the defendant intervenors is decided by the Court. (Gammon, Cheryl) (Entered: 05/24/2010)
119 NOTICE of Special Appearance as to attorney GREGORY S. SCHELL by attorney ROBERT JAMES WILLIS on behalf of Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ,

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ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS (WILLIS, ROBERT) Modified on 5/25/2010 to edit text (Law, Trina). (Entered: 05/24/2010)
120 ORDER Appointing JONATHAN R. HARKAVY as the mediator pursuant to LR 83.9d(a). Signed by John S. Brubaker, Clerk of Court. (Gammon, Cheryl) (Entered: 05/25/2010)
121 Third Amended ANSWER with Counterclaim to 1 Complaint by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. (WILLIS, ROBERT) (Entered: 06/10/2010)
122 ANSWER to Defendant−Intervenors' 121 Third Amended Counterclaims by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. (SHEA, ROBIN) (Entered: 06/24/2010)
123 NOTICE by JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR (Notice of Paper Filing −− Administrative Record) (FORNEY, GEOFFREY) (Entered: 07/08/2010)
124 MOTION for Summary Judgment by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. Responses due by 10/4/2010 (LOFTIS, WILLIAM) (Entered: 08/31/2010)
125 MEMORANDUM re 124 MOTION for Summary Judgment filed by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. (LOFTIS, WILLIAM) (Entered: 08/31/2010)

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09/30/2010 10/04/2010 10/15/2010
10/18/2010 10/19/2010 10/20/2010
12/10/2010 12/13/2010 12/14/2010 12/14/2010

126 RESPONSE in Opposition re 124 MOTION for Summary Judgment filed by JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR. Replies due by 10/18/2010. (Attachments: # 1 Text of Proposed Order)(FORNEY, GEOFFREY) (Entered: 09/30/2010)
127 RESPONSE in Opposition re 124 MOTION for Summary Judgment filed by UNITED FARM WORKERS. Replies due by 10/21/2010. (Attachments: # 1 Exhibit Unpublished Decision, # 2 Exhibit Unpublished Decision, # 3 Exhibit Unpublished Decision)(TURNER, ANDREW) (Entered: 10/04/2010)
128 REPLY, filed by Plaintiffs ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., to Response to 124 MOTION for Summary Judgment. (LOFTIS, WILLIAM) Modified on 10/18/2010 to edit duplicate text. (Lloyd, Donna) (Entered: 10/15/2010)
Motion(s) Referred: 116 Joint MOTION to Stay Discovery to Judge MAG/JUDGE WALLACE W. DIXON. (Williamson, Wanda) (Entered: 10/18/2010)
129 ORDER signed by MAG/JUDGE WALLACE W. DIXON on 10/19/2010, that upon consideration of the parties' joint motion to stay discovery pursuant to the terms proposed in the Joint Rule 26(f) Report (Rec. Doc. 116 ) and the motion's supporting memorandum (Rec. Doc. 117 ), it is ORDERED that the motion be GRANTED. (Daniel, J) (Entered: 10/20/2010)
130 REPLY, filed by Plaintiffs ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. to response to 124 MOTION for Summary Judgment. (LOFTIS, WILLIAM) Modified docket text on 10/29/2010 to remove duplicate text. (Daniel, J) (Entered: 10/20/2010)
131 MOTION for Partial Summary Judgment by UNITED FARM WORKERS. Responses due by 1/12/2011 (Attachments: # 1 Memorandum of Law)(TURNER, ANDREW) Modified on 9/27/2011 terminating motion. Motion was refiled (see #132)(Williamson, Wanda). (Entered: 12/10/2010)
NOTICE TO FILER OF DEFICIENCIES IN ELECTRONICALLY FILED DOCUMENT(S) re: 131 MOTION for Partial Summary Judgment. Pleadings should be filed separately. Please refile Motion and Memorandum for Partial Summary Judgment as 2 separate documents. (Daniel, J) (Entered: 12/13/2010)
132 MOTION for Partial Summary Judgment by UNITED FARM WORKERS. Responses due by 1/16/2011 (TURNER, ANDREW) (Entered: 12/14/2010)
133 Memorandum of Law in Support 132 MOTION for Partial Summary Judgment by UNITED FARM WORKERS. Responses due by 1/16/2011 (TURNER, ANDREW) Modified on 9/27/2011 to correct title of the document. The pleading was docketed as a "Motion" rather than a Memorandum(Williamson, Wanda).

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01/11/2011
01/28/2011
04/18/2011 09/14/2011 09/14/2011 09/19/2011
09/20/2011 09/20/2011 09/21/2011

(Entered: 12/14/2010)
134 RESPONSE in Opposition re 132 MOTION for Partial Summary Judgment, filed by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. Replies due by 1/28/2011. (SHEA, ROBIN) Modified on 9/27/2011 corrected pldg. # of motion that is responded to (Williamson, Wanda). (Entered: 01/11/2011)
135 REPLY, filed by Intervenor Defendants JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS, to Response to 132 MOTION for Partial Summary Judgment. (TURNER, ANDREW) Modified on 2/15/2011 to remove duplicate text. (Daniel, J) . (Entered: 01/28/2011)
Motions Submitted: 133 MOTION for Partial Summary Judgment Memorandum of Law in Support, 132 MOTION for Partial Summary Judgment, 131 MOTION for Partial Summary Judgment, 124 MOTION for Summary Judgment to JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 04/18/2011)
Electronic/Telephone Notice on 9/14/2011 to counsel re: Telephone Conference with Judge William L. Osteen, Jr., @ 2:00 p.m. on 9/14/2011. (Williamson, Wanda) (Entered: 09/14/2011)
(2nd) Electronic/Telephone Notice on 9/14/2011 to counsel re: Telephone Conference with Judge William L. Osteen, Jr. is scheduled for 3:00 p.m. on 9/14/2011 instead of the previous set time of 2:00 p.m. (Williamson, Wanda) (Entered: 09/14/2011)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Telephone Conference held on 9/14/2011. The attorneys present were as follows: William Randolph Loftis, Jr. and Robin E. Shea, on behalf of Plaintiffs; Geoffrey Forney, on behalf of Defendants Hilda L. Solis and the United States Department of Labor; and, Andrew H. Turner, Robert J. Willis, and Gregory S. Schell, on behalf of the Intervenor−Defendants. The court discussed possible dates for a hearing concerning various issues related to summary judgment. The parties advised that they would be available on September 27, 2011 at 2:00 p.m. for such a hearing. (McCarty, Dianne) (Entered: 09/19/2011)
Set Motion Hearings re 132 MOTION for Partial Summary Judgment, 124 MOTION for Summary Judgment : Motion Hearing set for 9/27/2011 02:00 PM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) . (Entered: 09/20/2011)
136 NOTICE of Hearing: Motion Hearing set for 9/27/2011 02:00 PM in Greensboro Courtroom #1 before JUDGE WILLIAM L. OSTEEN JR. (Williamson, Wanda) (Entered: 09/20/2011)
137 NOTICE by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL

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09/23/2011 09/27/2011
09/29/2011 09/29/2011

GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS OF SPECIAL APPEARANCE by Naomi R. Tsu (Attachments: # 1 Certificate of Good Standing)(WILLIS, ROBERT) (Entered: 09/21/2011)
138 MOTION for Leave to File SUPPLEMENTAL MEMORANDUM REGARDING MOOTNESS, Supplemental Reply to 126 Response and 128 Reply to Motion for Summary Judgment by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Responses due by 10/17/2011 (Attachments: # 1 Supplemental Reply to Motion for Summary Judgment, # 2 Exhibit A − Tolling List, # 3 Exhibit B − Tolling Agreements, # 4 Exhibit C − Summary of employers and tolling agreements by state, # 5 Text of Proposed Order)(WILLIS, ROBERT) (Entered: 09/23/2011)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Motion Hearing held on 9/27/2011 re: Oral Argument on Mootness issue, and 132 MOTION for Partial Summary Judgment filed by UNITED FARM WORKERS, 124 MOTION for Summary Judgment filed by VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC., SNAKE RIVER FARMERS ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., FOREST RESOURCES ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, FLORIDA FRUIT &VEGETABLE, EVERGLADES HARVESTING &HAULING, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NATIONAL CHRISTMAS TREE ASSOCIATION, FLORIDA CITRUS MUTUAL, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, ALTA CITRUS, LLC, H−2A USA, INC., DESOTO FRUIT &HARVESTING, INC, NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, TITAN PEACH FARMS, INC. The following attorneys were present: Attorneys Robin Shea and William Loftis appeared on behalf of the plaintiffs. Attorney Geoffrey Forney (appeared by telephone)and AUSA Joan Binkley appeared on behalf of the United States. Attorneys Naomi Tsu and Andrew Turner appeared on behalf of the Intervenor−Defendants. Attorney Noami Tsu allowed to appear Pro Hac purs. to 137 Notice of Special Appearance. The pending matters are taken under advisement. (Court Reporter Joseph Armstrong.) (Williamson, Wanda) (Entered: 09/27/2011)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR.: Telephone Conference held on 9/29/2011 at 12:30 p.m. with Attorneys Loftis, Shea, Forney. Attorneys Willis and Turner were not present and counsel were instructed to contact Attorneys Willis and Turner and set up a conference call when everyone is available. (Powell, Gloria) (Entered: 09/29/2011)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR. Telephone Conference held on 9/29/2011. William R. Loftis, Jr. appeared for Plaintiffs. Geoffrey Forney appeared for the Federal Defendants. Gregory Schell appeared for the Intervenor Defendants. The court and the parties discussed the matter of Plaintiffs claims for declaratory and injunctive relief as to the Withdrawal of Interpretation of the Fair Labor Standards Act Concerning Relocation Expenses Incurred by H−2A and H−2B Workers. The parties agreed that there is nothing for the court to address at this time as to this issue. The court informed the parties that it will file an order as to the Substitution Rule issue in the coming days, but will not enter a judgment until 14 days thereafter, giving the parties an opportunity to notify the court if any outstanding issues need to be addressed. (McCarty, Dianne)

10/04/2011
10/19/2011 10/24/2011 10/28/2011 10/31/2011 10/31/2011 10/31/2011

(Entered: 09/30/2011)
139 MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 10/4/11 that Defendant−Intervenors' Motion for leave to File Supplemental Memorandum Regarding Mootness (Doc. 138 ) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. 124 ) is DENIED AS MOOT as to the Federal Defendants. This court retains jurisdiction as to the Federal Defendants pending a final order as to Plaintiffs' claim for attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. IT IS FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. 124 ) is GRANTED as to Defendant−Intervenors and Defendant−Intervenors' Motions for Partial Summary Judgment (Docs. 131 , 132 ) are DENIED. IT IS FURTHER ORDERED that a PERMANENT INJUNCTION is hereby issued, enjoining the implementation of the Substitution Rule (Temporary Employment of H−2A Aliens in the United States, 74Fed. Reg. 25,972 (May 29, 2009)) and denying recovery by Defendant−Intervenors pursuant to their counterclaims by or under the rules set out in Temporary Employment of H−2A Aliens in the United States, 74 Fed. Reg. 25,972 (May 29, 2009). IT IS FURTHER ORDERED that Defendant−Intervenors' claims are DISMISSED WITH PREJUDICE. (Wilson, JoAnne) Modified on 10/14/2011 spacing (Wilson, JoAnne). (Entered: 10/04/2011)
Telephone Notice to Attorneys Loftis, Forney, Willis and Schell on 10/19/2011 re: submission of additional materials per Judge's instructions during 9/29/2011 Telephone Conference. Per Attorneys Loftis and Forney, no additional materials will be submitted on behalf of plaintiff &defendants. Per Attorney Schell, counsel for intervenor defendants, additional materials forthcoming but these materials are due to the court no later than Monday, 10/24/2011.(Welch, Kelly) (Entered: 10/19/2011)
140 MOTION FOR INJUNCTION PENDING APPEAL by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Responses due by 11/17/2011 (Attachments: # 1 Exhibit 4 − Escrow Order April 26, 1985)(WILLIS, ROBERT) (Entered: 10/24/2011)
Minute Entry for proceedings held before JUDGE WILLIAM L. OSTEEN JR. Telephone Conference held on 10/28/2011. William R. Loftis, Jr. and Robin Shea appeared for Plaintiffs. Geoffrey Forney appeared for the Federal Defendants. Robert Willis and Gregory Schell appeared for the Defendant Intervenors. The court informed the parties that it was inclined to deny without prejudice the Defendant Intervenors Motion for Injunction Pending Appeal and proceed to entry of judgment as to less than all claims pursuant to Rule 54. This court would retain jurisdiction as to Plaintiffs claim for attorney fees. No party indicated an objection to entry of judgment as to less than all claims. Should any party reconsider, the case manager, Kelly Welch, should be notified immediately. (McCarty, Dianne) (Entered: 10/31/2011)
MAG/JUDGE L. PATRICK AULD added. MAG/JUDGE WALLACE W. DIXON no longer assigned to case. (Williamson, Wanda) (Entered: 10/31/2011)
141 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 10/31/2011. Having considered the arguments tendered by Defendant−Intervenors in their Motion and the full record in this case, this court finds that the Motion should be denied. IT IS THEREFORE ORDERED that Defendant−Intervenors' Motion for Injunction Pending Appeal (Doc. 140 ) is hereby DENIED WITHOUT PREJUDICE. (Taylor, Abby) (Entered: 10/31/2011)
142 JUDGMENT signed by JUDGE WILLIAM L. OSTEEN JR. on 10/31/2011. There being no just reason for delay, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiffs' Motion for Summary Judgment (Doc. 124 ) is GRANTED as to

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10/31/2011
11/01/2011
11/07/2011 11/09/2011 11/09/2011 11/10/2011

Defendant−Intervenors and a PERMANENT INJUNCTION is issued, enjoining the implementation of the Temporary Employment of H−2A Aliens in the United States, 74 Fed. Reg. 25,972 (May 29, 2009) and denying recovery by Defendant−Intervenors pursuant to their claims by or under the rules set out in Temporary Employment of H−2A Aliens in the United States, 74 Fed. Reg. 25,972 (May 29, 2009). IT IS ORDERED AND ADJUDGED that Defendant−Intervenors' claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED AND ADJUDGED that Plaintiffs' claims as to the Department of Labor ("DOL"), Hilda L. Solis in her official capacity as Secretary of DOL, the Department of Homeland Security ("DHS"), and Janet Napolitano in her official capacity as Secretary of DHS (collectively, "the Federal Defendants") are DISMISSED AS MOOT. This court retains jurisdiction as to Plaintiffs' claim for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.(Taylor, Abby) (Entered: 10/31/2011)
143 ORDER signed by JUDGE WILLIAM L. OSTEEN JR. on 10/31/2011. Plaintiffs' Complaint contains a request for an award of costs and reasonable attorney fees as to the Department of Labor ("DOL"), Hilda L. Solis in her official capacity as Secretary of DOL, the Department of Homeland Security ("DHS"), and Janet Napolitano in her official capacity as Secretary of DHS (collectively, "the Federal Defendants"). (Compl. (Doc. 1 ) at 35.) During the summary judgment briefing, Plaintiffs again stated their intention to seek an award of attorney fees as to the Federal Defendants. (Pls.' Reply to Gov. Defs. (Doc. 128 ) at 1.) In light of the conclusion of substantive issues in this matter, this court finds no reason to delay consideration of Plaintiffs' request for attorney fees. Accordingly, Plaintiffs are directed to submit such briefs and affidavits as may be appropriate to resolve any claim for attorney fees within thirty (30) days of this Order. The Federal Defendants are granted an opportunity to respond to Plaintiffs' motion, as appropriate, in accordance with the Federal Rules of Civil Procedure and the Local Rules of Practice and Procedure. Plaintiffs may file a reply. (Taylor, Abby) (Entered: 10/31/2011)
144 NOTICE OF APPEAL as to 142 Judgment, by JAMES CEASE, MARIO CENTENO−RODRIGUEZ, JUAN CISNEROS−IBARRA, LUIS ENRIQUE CISNEROS−IBARRA, REYMUNDO GUTIERREZ, CARLOS LUIS GUZMAN−CENTENO, JOSE RAUL GUZMAN−CENTENO, ABELARDO HERNANDEZ−AGUAS, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, ATANACIO LUGO−RINCON, OBDULA MALDONADO−ABELLANEDA, MIGUEL ANGEL OLGUIN−HERNANDEZ, ARTURO OLGUIN−MONROY, OMERA RODRIGUEZ−GUZMAN, DESIDERIO TOVAR−ZAPATA, ALEJANDRO TREJO−LEON, UNITED FARM WORKERS. Filing fee $ 455, receipt number 0418−1010592. (WILLIS, ROBERT) (Entered: 11/01/2011)
145 Electronic Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 144 Notice of Appeal, (Wilson, JoAnne) (Entered: 11/07/2011)
146 NOTICE of Docketing Appeal from USCA re 144 Notice of Appeal. USCA Case Number: 11−2235. USCA Case Manager: Donna Lett. (Law, Trina) (Entered: 11/09/2011)
147 NOTICE of Docketing from USCA re 144 Notice of Appeal. USCA Case Number 11−2235; Cs. Mgr. Donna Lett (Wilson, JoAnne) (Entered: 11/10/2011)
148 BILL OF COSTS by Plaintiffs ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. Response to Bill of Costs

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11/21/2011 11/28/2011 12/05/2011
12/19/2011 01/30/2012

due by 11/28/2011. (Attachments: # 1 Affidavit of WR Loftis with Supporting Documents)(LOFTIS, WILLIAM) (Entered: 11/10/2011)
149 NOTICE by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. Re: Attorneys Fees (LOFTIS, WILLIAM) (Entered: 11/21/2011)
150 OBJECTIONS to Answer to Bill of Costs 148 by Defendants JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR. (Attachments: # 1 Text of Proposed Order)(FORNEY, GEOFFREY) Modified on 12/8/2011 to link to correct document (Contreras, Jamie). (Entered: 11/28/2011)
151 RESPONSE filed by Plaintiffs ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC. re 150 Objection to Answer to Bill of Costs filed by UNITED STATES DEPARTMENT OF LABOR, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, JANET NAPOLITANO filed by ALTA CITRUS, LLC, DESOTO FRUIT &HARVESTING, INC, EVERGLADES HARVESTING &HAULING, INC., FLORIDA CITRUS MUTUAL, FLORIDA FRUIT &VEGETABLE, FOREST RESOURCES ASSOCIATION, H−2A USA, INC., MAINE FOREST PRODUCTS COUNCIL, NATIONAL CHRISTMAS TREE ASSOCIATION, NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, NORTH CAROLINA AGRIBUSINESS COUNCIL, INC, NORTH CAROLINA CHRISTMAS TREE ASSOCIATION, NORTH CAROLINA GROWERS' ASSOCIATION, INC., NORTH CAROLINA PICKLE PRODUCERS ASSOCIATION, OVERLOOK HARVESTING COMPANY, LLC, SNAKE RIVER FARMERS ASSOCIATION, TITAN PEACH FARMS, INC., VIRGINIA AGRICULTURAL GROWERS ASSOCIATION, INC.. (LOFTIS, WILLIAM) (Entered: 12/05/2011)
152 REPLY by Defendants JANET NAPOLITANO, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF LABOR in Support of Federal Defendants' Motion for Disallowance of Costs. (FORNEY, GEOFFREY) (Entered: 12/19/2011)
153 TRANSCRIPT filed for dates of 09/27/2011, before Judge William L. Osteen, Jr., re Motion Hearing, Court Reporter J. Armstrong, Telephone number 336−332−6034. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. <P>NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained

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through PACER.<P> Does this satisfy all appellate orders for this reporter? y <br><br> Redaction Request due 2/21/2012. Redacted Transcript Deadline set for 3/1/2012. Release of Transcript Restriction set for 4/30/2012. (Armstrong, Joe) (Main Document 153 replaced on 1/31/2012) (Contreras, Jamie). (Entered: 01/30/2012)
154 JUDGMENT signed by JUDGE WILLIAM L. OSTEEN JR. on 2/7/12, for the reasons set forth in the Order and Judgment (Docs. 142 , 143 ) dated October, 31, 2012, the complaint as to Defendants Hilda L. Solis, United States Department of Labor, Janet Napolitano, and United States Department of Homeland Security, is DISMISSED AS MOOT. This court retains jurisdiction only as to the pending Bill of Costs (Doc. 148 ) for determination by the Clerk. (Law, Trina) (Entered: 02/07/2012)
Motions Referred: 148 MOTION for Bill of Costs referred to Clerk of Court for consideration pursuant to 154 . (Powell, Gloria) (Entered: 05/09/2012)
155 OPINION OF USCA. Affirmed by published opinion. Judge Keenan wrote the opinion,in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson wrote a separate concurring opinion. USCA Case Number 11−2235. (Sheets, Jamie) (Entered: 12/21/2012)
156 USCA JUDGMENT as to 144 Notice of Appeal, filed by JOSE RAUL GUZMAN−CENTENO, JAMES CEASE, LUIS ENRIQUE CISNEROS−IBARRA, MIGUEL ANGEL OLGUIN−HERNANDEZ, GREGORIO HUERTAS−SAMANO, PEDRO IBARRA−AVILA, UNITED FARM WORKERS, JUAN CISNEROS−IBARRA, ALEJANDRO TREJO−LEON, REYMUNDO GUTIERREZ, DESIDERIO TOVAR−ZAPATA, OMERA RODRIGUEZ−GUZMAN, ABELARDO HERNANDEZ−AGUAS, ATANACIO LUGO−RINCON, ARTURO OLGUIN−MONROY, MARIO CENTENO−RODRIGUEZ, CARLOS LUIS GUZMAN−CENTENO, OBDULA MALDONADO−ABELLANEDA. In accordance with the decision of this court, the judgment of the district court is affirmed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. USCA Case Number 11−2235. (Sheets, Jamie) (Entered: 12/21/2012)
157 TAXATION OF COSTS in amount of $ 384.74 are allowed and taxed against Defendants and Intervenors. Signed by Clerk of Court, John S. Brubaker on 1/17/2013. (Sheets, Jamie) (Entered: 01/17/2013)
158 MANDATE of USCA as to 144 Notice of Appeal. The judgment of this court, entered 12/21/12, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (Sheets, Jamie) (Entered: 02/12/2013)