PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 14-3557

________________

COMITE ́ DE APOYO A LOS TRABAJADORES AGRICOLAS;

PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE;

NORTHWEST FOREST WORKER CENTER;

JESUS MARTIN SAUCEDA PINEDA;

JUAN DOE,

Appellants

v.

THOMAS E. PEREZ, In His Official Capacity as United 

States Secretary of Labor; UNITED STATES 

DEPARTMENT OF LABOR; ERIC M. SELEZNOW, 

In His Official Capacity as Acting Assistant Secretary for 

Employment and Training

________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-14-cv-02657)

Honorable Legrome D. Davis, Jr., District Judge

________________

Argued October 23, 2014
2

BEFORE: FUENTES, GREENBERG, and 

COWEN, Circuit Judges

(Filed: December 5, 2014)

______________

Sarah M. Classen

Centro de los Derechos del Migrante, Inc.

519 North Charles Street

Suite 260

Baltimore, MD 21201

Vanessa A. Coe

Gregory S. Schell

Florida Legal Services, Inc.

508 Lucerne Avenue

Lake Worth, FL 33460

D. Michael Dale

Northwest Workers’ Justice Project

812 Southwest Washington

Suite 1100

Portland, OR 09205

Arthur N. Read

Friends of Farmworkers, Inc.

699 Ranstead Street

Suite 4

Philadelphia, PA 19106

Meredith B. Stewart
3

Southern Poverty Law Center

1055 Saint Charles Avenue

Suite 505 

New Orleans, LA 70130

Edward J. Tuddenham (argued)

228 West 137th Street

New York, NY 10030

 Attorneys for Appellants

Stuart F. Delery

Assistant Attorney General

Glenn M. Girdharry

Senior Litigation Counsel

Geoffrey Forney (argued)

Senior Litigation Counsel

United States Department of Justice

Office of Immigration Litigation

Room 6223

450 5th Street, N.W.

Washington, DC 20530

 Attorneys for Appellees

______________

OPINION OF THE COURT

______________

GREENBERG, Circuit Judge.
4

I. INTRODUCTION

This appeal is concerned with the ripeness doctrine, a 

constitutional mandate derived from Article III’s requirement 

that federal courts hear only cases or controversies. U.S. Const., 

Art. III, § 2. The doctrine assists courts in avoiding the need to 

address speculative cases, in deferring to administrators with 

subject matter expertise, and in deciding cases on the basis of 

fully-developed records. The Supreme Court has explained that 

the question of whether a controversy is “ripe” for judicial 

resolution has two aspects that require a court to evaluate both 

the fitness of the issues for judicial decision and the possible 

hardship to the parties if it withholds consideration of a case 

presented to it. To some extent these inquiries require a court to 

exercise judgment, rather than to apply a black-letter rule. 

Abbott Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S.Ct. 1507, 

1515 (1967).

In this case involving rules applying to the admission of 

certain foreign workers into the United States for temporary 

employment, we are mindful of the foregoing considerations and 

give due regard to the expertise exercised by the Department of 

Labor (“DOL”), the implicated agency principally involved in 

this case, and the historical shifts and political compromises 

underlying the DOL’s adoption of the rules at issue. 

Furthermore, in view of the subject matter of this litigation, we 

are concerned with the congressional policy to protect American 

workers from a depression of their wages attributable to the 

entry of foreign workers into the domestic labor market. 

Plaintiffs appeal from an order of the District Court 

dismissing their challenge to 20 C.F.R. § 655.10(f), a DOL 
5

regulation applicable in the administration of the H-2B visa 

program that authorizes the Department of Homeland Security 

(“DHS”) to admit certain unskilled foreign workers into this 

country for temporary employment. On this appeal, we are 

concerned with an aspect of the H-2B program, the 2009 Wage 

Guidance, which authorizes employers to use privately-funded 

wage surveys to set the prevailing market wage for certain 

occupations. The Court at the outset of its consideration of the 

case invoked the ripeness doctrine when it made a determination 

that the matter was not at that time justiciable and, accordingly, 

the Court would not consider the merits of plaintiffs’ challenge 

to the regulation. Comité de Apoyo a Los Trabajadores 

Agricolas v. Perez, No. 14-2657, 2014 WL 4100708 (E.D. Pa. 

July 23, 2014) (CATA III). We determine that this case is ripe 

for judicial review, render judgment for plaintiffs, and hold that 

20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary 

and capricious and in violation of the APA. We order vacatur of 

20 C.F.R. § 655.10(f) and the 2009 Wage Guidance.1

II. FACTUAL BACKGROUND AND PROCEDURAL 

 HISTORY

Plaintiffs based their complaint challenging 20 C.F.R. § 

 

1 The District Court dismissed without prejudice on justiciability 

grounds related litigation in Comité de Apoyo a Los 

Trabajadores Agricolas v. Perez, No. 13-7213, 2014 WL 

3629528, ____ F. Supp. 2d ____ (E.D. Pa. July 23, 2014), a case 

in which the plaintiffs sought judicial review of certain actions,

decisions, and rules in the administration of the H-2B program.
6

655.10(f) and DOL’s 2009 Wage Guidance on the 

Administrative Procedure Act (“APA”). This case is another 

step in a long-running controversy concerning the administration 

of the H-2B program. Resolution of discrete disputes arising 

from the controversy have led to this Court and district courts 

setting out the factual background and procedural history of the 

controversy in previous opinions. See Comité de Apoyo a los 

Trabajadores Agrícolas v. Solis, No. 2:09-240 LP, 2010 WL 

3437761 (E.D. Pa. Aug. 30, 2010) (CATA I); Comité de Apoyo 

a los Trabajadores Agrícolas v. Solis, 933 F. Supp. 2d 700 (E.D. 

Pa. 2013) (CATA II); La. Forestry Ass’n, Inc. v. Solis, 889 F. 

Supp. 2d 711 (E.D. Pa. 2012), aff’d sub nom. La. Forestry Ass’n 

Inc. v. Secretary, U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 

2014). Thus, though the issues we now address are new, we are 

not writing on a blank slate.

A. The H-2B Visa Program

The H-2B visa program—named for the statutory section 

which authorized its creation2— allows United States employers 

to arrange for the admission of foreign workers (“H-2B 

workers”) into the United States to perform temporary unskilled 

non-agricultural work. The governing criteria of the program 

were established through a process requiring the accommodation 

of political interests; the program balances employers’ 

temporary need for unskilled foreign workers against the need to 

protect United States workers’ employment, salaries, and 

working conditions. In furtherance of these considerations, the 

Immigration and Nationality Act (“INA”) authorizes the 

 

2

Immigration and Nationality Act, Pub. L. No. 82-414, § 

101(a)(15)(H)(ii)(B), 66 Stat. 163, 168 (1952). 
7

issuance of H-2B visas only in cases in which employers 

demonstrate that the employment of foreign workers admitted 

under the program will not adversely affect the wages and 

working conditions of United States workers. 8 U.S.C. §§ 

1101(a)(15)(H)(ii), 1182 (a)(5)(A)(i)(I)-(II). 

DHS and DOL currently administer the H-2B program. 

The INA confers broad authority on DHS to admit aliens into 

this country and to promulgate regulations governing the 

issuance of nonimmigrant visas. 8 U.S.C. § 1184(a)(1). The H2B program establishes a method for the issuance of visas 

differing from the ordinary practice by which a person seeking 

to be admitted into the United States applies for a visa because 

under the H-2B program the putative employer, not the person 

seeking to be admitted, makes the application. Prior to filing an 

H-2B petition with DHS, an employer must obtain a temporary 

labor certification from the Secretary of Labor. 8 C.F.R. § 

214.2(h)(6)(iii) (2011). That certification constitutes DOL’s 

“advice” that DHS should grant the requested H-2B visa and 

must confirm that: (1) qualified workers are not available in the 

United States to perform the employment for which foreign 

workers are sought, and (2) the aliens’ employment will not 

adversely affect wages and working conditions of similarly 

employed United States workers. 8 C.F.R. § 214.2(h)(6)(iii)(A), 

(iv)(A). DHS regulations provide for DOL to “establish 

procedures” for issuing labor certifications within these 

confines. 8 C.F.R. § 214.2(h)(6)(iii)(D). Inasmuch as the 

availability of workers is related to the wage offered for the 

employment because the higher the wage the greater the 

likelihood that domestic workers can be found for the 

employment, DOL issues labor certifications that certify that the 
8

employment is not being filled by United States workers at the 

occupation’s “prevailing wage.” 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, 73 Fed. 

Reg. 78,020-01, 78,056 (Dec. 19, 2008) (codified at 20 C.F.R. § 

655.10(b)(2)). 

B. Calculation of Prevailing Wages

DOL through its H-2B procedures long has sought to 

avoid causing adverse effects on American workers’ wages and 

working conditions from the admission of foreign workers by 

requiring H-2B employers to offer and pay at least the 

prevailing wage both to the H-2B workers and to the United 

States workers engaged for the employment opportunity. To 

facilitate compliance with this requirement, DOL has from time 

to time published specific guidelines governing the system by 

which it will determine the prevailing wage for the employment 

that an employer is seeking to fill with foreign workers.

Over the years, DOL has changed its method for 

calculating prevailing wages on several occasions, often without 

giving interested parties notice of its intent to make the changes 

or the opportunity to comment on the contemplated changes, and 

has made the changes without explanation. Initially, DOL 

advised state workforce agencies that became involved in the 

administration of the program to calculate a single prevailing 

wage for any given occupation in the area of intended 
9

employment.3 In 1995, DOL altered its methodology to 

determine the level of prevailing wages by creating multiple 

prevailing wages for each H-2B occupation. DOL initially 

divided each H-2B occupation into two skill levels—“entry 

level” (“Level I”) or “experienced level” (“Level II”)—and 

calculated a prevailing wage for each level.4 But in 2005, DOL 

went further in the “2005 Wage Guidance” and divided H-2B 

occupations into four skill and wage levels, “specialty 

occupations,” borrowing from a system that Congress created to 

calculate prevailing wages for the separate H-1B program 

dealing with the admission of skilled workers. The DOL 

effectuated these changes through guidance letters without 

public notice or seeking comment comparable to the procedure 

followed when rules are adopted in an APA formal rulemaking 

process. 

Prior to 2005, DOL required the use of wage rates 

established on the basis of government programs such as those 

under the Service Contract Act (“SCA”) or the Davis Bacon Act 

(“DBA”), but in March 2005, DOL changed its approach 

through the 2005 Wage Guidance, which, in the absence of a 

 

3 See Department of Labor, General Administration Letter 

(GAL) 10-84, “Procedures for Temporary Labor Certifications 

in Non Agricultural Occupations” (Apr. 23, 1984).

4 See Department of Labor, “Interim Prevailing Wage Policy for 

Nonagricultural Immigration Programs” (May 18, 1995) 

available at http://wdr.doleta.gov/directives.
10

collective bargaining agreement (“CBA”), permitted the 

prevailing wage rate to be set using either private employer 

surveys or a Bureau of Labor Statistics Occupational 

Employment Statistics (“OES”) survey. Subsequently, on 

December 19, 2008, DOL adopted the “2008 Wage Rule,” 

which states: “the prevailing wage for labor certification 

purposes shall be the arithmetic mean . . . of the wages of 

workers similarly employed at the skill level in the area of 

intended employment.” 73 Fed. Reg. 78,020, 78,056 (Dec. 18, 

2008) (codified at 20 C.F.R. § 655.10(b)(2)) (emphasis added). 

By specifying that a given prevailing wage is set “at the skill 

level” for the intended employment, the 2008 Wage Rule directs 

DOL to divide each H-2B occupation into four separate skill 

levels and calculate a prevailing wage for each level. 20 C.F.R. 

§ 655.10(b)(2). The 2008 Wage Rule requires that, in the 

absence of a CBA, prevailing wage rates are to be determined 

on the basis of either a private employer survey or data derived 

from an OES survey. DOL did not seek comments on the use of 

the four-level wage methodology for determining prevailing 

wages when promulgating the 2008 Wage Rule.

Even though DOL did not seek public comments on the 

use of this four-level methodology in the H-2B program prior to 

adopting these rules, interested parties submitted comments to it 

contending that use of “skill level” prevailing wages made no 

sense in the context of low-skill H-2B jobs and that their 

adoption resulted in wage depression. The comments also 

criticized DOL’s decision to permit the use of employer surveys 

when valid OES wage data was available for setting a prevailing 

wage because employer surveys would be used to undercut 

wages that would have been based on OES surveys to the 
11

detriment of both American and foreign H-2B workers. 73 Fed. 

Reg. at 78,031; A386-409 (Low Wage Worker Legal Network 

July 2008 comments ETA 2008-0002-0088). DOL did not 

respond to those comments, instead continuing to set skill-level 

OES wages and evaluate employer surveys submitted pursuant 

to these regulations using the later-adopted 2009 Wage 

Guidance.5 The 2009 Wage Guidance established a 

methodology by which the OES survey data for an occupation 

would be manipulated mathematically to produce four different 

prevailing wages, one for each of four skill levels within an 

occupation.

C. Prelude to the Present Litigation

Organizations representing H-2B and United States 

workers challenged 20 C.F.R. § 655.10(f) and the 2009 Wage 

Guidance in CATA I. These plaintiffs asserted that the vast 

majority of H-2B jobs were low-skilled occupations filled by 

laborers, housekeeping cleaners, and amusement park workers, 

or persons in similar low-skilled employment, and that the rules 

recognized artificial skill distinctions that allowed employers to 

bring foreign workers into the country for employment at wages 

substantially below the average wage for an occupation, to the 

detriment of United States workers.

 

5 DOL republished the 2005 Wage Guidance in November 2009 

as the 2009 Wage Guidance. See Employment and Training 

Administration, Prevailing Wage Determination Policy 

Guidance, Nonagricultural Immigration Programs (Nov. 2009), 

A135-70. The 2009 Wage Guidance never was subject to notice 

and comment.
12

On August 30, 2010, a district court in CATA I held that 

DOL improperly promulgated the “skill level” 2008 Wage Rule. 

The court reasoned: 

In the absence of any valid regulatory language 

authorizing the use of skill levels in determining 

the prevailing wage rate . . . the four-tier structure 

of skill levels set out in the guidance letters—

which is entirely untethered from any other 

statutory or regulatory provisions, and which 

affirmatively creates the wages paid to H–2B 

workers—constitutes a legislative rule which 

must be subjected to notice and comment. It has 

not been so subjected and it . . . is therefore 

invalid.

2010 WL 3431761, at *19. In invalidating the words “at the 

skill level,” the court stressed that “DOL has never explained its 

reasoning for using skill levels as part of H-2B prevailing wage 

determinations” and that the system never has been subject to 

notice and comment, as the APA requires. Id. at *19, 25. 

The district court further found that DOL’s errors in 

promulgating the 2008 Wage Rule were “serious” and of a 

magnitude that counseled in favor of vacating the rule. Id. at 

*25 (“[W]hile the use of skill levels in 20 C.F.R. § 655.10 is 

invalid for lack of a rational explanation, DOL’s failure to 

provide an explanation for using skill levels in the H–2B 

program constitutes a recurring issue stretching over more than a 

decade, and DOL was, in the context of the 2009 rulemaking, 

presented with comments alleging fundamental problems with 

the use of skill levels in the H–2B program.”). Nonetheless, in 
13

view of the circumstance that the court wasinvalidating the rule 

due to DOL’s procedural rather than substantive errors, it did 

not vacate the portion of the 2008 Wage Rule providing for 

skill-level methodology; instead, the court remanded the case to 

DOL and ordered it to promulgate a replacement rule within 120 

days, pursuant to the APA’s procedures for notice and comment. 

Id.

Pursuant to that order, DOL issued a notice of proposed 

rulemaking. This notice stated that the 2008 Wage Rule’s skilllevel methodology did not comply with DOL’s regulatory and 

statutory mandate because the methodology did not produce 

“the appropriate wage necessary to ensure that U.S. workers are 

not adversely affected by the employment of H-2B workers.” 

Wage Methodology for the Temporary Non-Agricultural 

Employment H-2B Program, 75 Fed. Reg. 61,578-01, 61,579 

(Oct. 5, 2010). Following notice and comment, DOL announced 

a revised prevailing wage rule in January 2011 (“the 2011 Wage 

Rule”). Wage Methodology for the Temporary NonAgricultural Employment H-2B Program, 76 Fed. Reg. 3452-

0176 (Jan. 19, 2011). The 2011 Wage Rule prohibits use of 

private surveys except where an otherwise applicable OES 

survey does not provide any data for an occupation in a specific 

geographical location, or where the OES survey does not 

accurately represent the relevant job classification. Id. at 3467. 

The 2011 Wage Rule’s preamble explains that the Rule was 

promulgated in response to findings that the 2008 Wage Rule 

“artificially lowers . . . wage[s] to a point that [they] no longer 

represent[ ] market-based wage[s] for the occupation.” Id. at 

3477. The preamble concludes: “continuing the current 

calculation methodology . . . does not provide adequate 
14

protections to U.S. and H-2B workers,” violating both the INA 

and DHS mandates. Id. at 3471, 3477. Though employer 

associations challenged the 2011 Wage Rule, we upheld the rule 

in Louisiana Forestry, 745 F.3d 653. 

D. Continued Use of Skill-level Definition of 

 Prevailing Wage Leads to the Present Suit.

Notwithstanding the district court’s 2010 order and the 

promulgation of the 2011 Wage Rule, DOL has continued to use 

20 C.F.R. § 655.10(f) and the 2009 Wage Guidance, as it has 

postponed the 2011 Wage Rule’s effective date on several 

occasions because the 2011 Wage Rule was subject to 

congressional appropriations riders precluding its 

implementation.6 As a result, DOL continued to evaluate labor 

certificates using the 2008 skill-level definition of prevailing 

wage. Plaintiffs, no doubt frustrated by this course of events, 

returned to the district court, and, on March 21, 2013, that court 

 

6 See Consolidated and Further Continuing Appropriations Act, 

2012, Pub. L. 112-55, 125 Stat. 552, Div. B, Title V § 546 

(2011); Consolidated Appropriations Act, 2012, Pub. L. 112-74, 

125 Stat. 786, Div. F, Title I § 110 (2011); Continuing 

Appropriations Resolution, 2013, H.J. Res. 117, 112th Cong., 

126 Stat. 1313 (2012); Consolidated and Further Continuing 

Appropriations Act, 2013, Pub. L. 113-6, 127 Stat 198, Div. F, 

Title 5 (2013). But funds for the 2011 Wage Rule finally were 

authorized on January 17, 2014, just prior to our decision 

upholding the rule in Louisiana Forestry, 745 F.3d 653. See

Consolidated Appropriation Act, 2014, Pub. L. 113-76, 128 

Stat.51.
15

invalidated the skill-level definition of prevailing wage in 

CATA II, 933 F. Supp. 2d at 711-12. 

DOL and DHS responded to CATA II by promulgating 

an Interim Final Wage Rule (“IFR”) pursuant to the APA “good 

cause” exception to notice and comment rulemaking. 5 U.S.C. § 

553(b)(B), (d)(3). The IFR eliminated the use of skill levels 

from the definition of prevailing wage, but continued the 

practice of allowing a prevailing wage to be set by use of either 

an OES or private wage survey.7 78 Fed. Reg. 24,047, 24,061 

(Apr. 24, 2013) (codified at 20 C.F.R. § 655.10(b)(2) (2013)). 

We note that DOL allowed this unlimited use of private surveys 

despite its 2011 findings that such surveys are unreliable and 

should only be used in extraordinary circumstances. 

The promulgation of the IFR caused DOL to abandon the 

use of the 2008 Wage Rule and 2009 Wage Guidance to derive 

four skill-level prevailing wages from the OES survey. Instead 

it set the OES prevailing wage at the mean wage for each 

occupation and area of employment. 78 Fed. Reg. at 24,053, 

24,058-59. However, the IFR had no effect on DOL’s use of 

private employer surveys in the calculation of prevailing wages 

as DOL continued to evaluate private surveys using the skill-

 

7 The IFR defines the prevailing wage as “the arithmetic mean . . 

. of the wages of workers similarly employed in the area of 

intended employment. The wage component of the BLS 

Occupational Employment Statistics Survey (OES) shall be used 

to determine the arithmetic mean, unless the employer provides 

a survey acceptable to the

OFLC under paragraph (f) of this section.” 20 C.F.R. § 

655.10(b)(2) (2013).
16

level definition of prevailing wage.

The IFR, however, was hardly DOL’s last word on the H2B prevailing wage matter, for on March 14, 2014, the Secretary 

of Labor and DOL notified the regulated community that DOL 

“intends to publish a notice of proposed rulemaking on the 

proper wage methodology for the H-2B program working off of 

the 2011 Wage Rule as a starting point.” 2014 H-2B Notice, 79 

Fed. Reg. at 14,450. DOL stated that it “will consolidate our 

current review of comments on the 2013 IFR with review of 

comments received on the new notice of proposed rulemaking, 

and will issue a final rule accordingly.” Id. Nevertheless, we 

cannot be certain if the new rule will be promulgated, or, if 

promulgated, become effective, because, among other possible 

impediments, its implementation depends on the availability of 

congressional funding and Congress might withhold the funding 

as it has in the past with earlier DOL rules. Moreover, unless 

and until a new final rule becomes effective, DOL will continue 

to approve skill-level prevailing wages based on private wage 

surveys. See 78 Fed. Reg. at 24,054 n.13 (indicating intent to 

continue to evaluate private surveys using 2009 Wage 

Guidance).

Notwithstanding the March 14, 2014 notification, 

plaintiffs, facing an uncertain picture, on May 8, 2014, sued 

Thomas Perez in his official capacity as Secretary of Labor to 

challenge the lawfulness of the continued use of private wage 

surveys. Plaintiffs contend that the use of such private wage 

surveys violates the district court’s order in CATA II, 933 F. 

Supp. 2d 700, and that the challenged rules are arbitrary and 

contrary to law and were adopted in excess of DOL’s 

jurisdiction in violation of the APA. Plaintiffs then sought a 
17

preliminary injunction enjoining use of the challenged rules and 

moved for summary judgment. 

After a hearing on the motion for a preliminary 

injunction, the District Court in CATA III dismissed the case 

without prejudice on July 23, 2014, on the ground that the 

proposed 2014 or 2015 rule-making process could result in a 

prospective change of the rules at issue such that plaintiffs’ 

challenge was not ripe for adjudication. Plaintiffs filed a timely 

notice of appeal, and sought our expedited consideration of the 

appeal. We granted that request and now decide the case.

III. JURISDICTION

The District Court had jurisdiction over this APA case 

pursuant to 28 U.S.C. §§ 1331 and 1346, and we have 

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 even 

though the dismissal was without prejudice. See Lichoolas v. 

City of Lowell, 555 F.3d 10, 13 (1st Cir. 2009).

IV. STANDARD OF REVIEW

Our review of the District Court’s dismissal on ripeness 

grounds is plenary. See Taylor Inv., Ltd. v. Upper Darby Twp., 

983 F.2d 1285, 1289 (3d Cir. 1993). We also review APAbased challenges on a de novo basis, “apply[ing] the applicable 

standard of review to the underlying agency decision.” La. 

Forestry, 745 F.3d at 669 (citing Cyberworld Enter. Techs. Inc. 
18

v. Napolitano, 602 F.3d 189, 195-96 (3d Cir. 2010)). In 

exercising our jurisdiction, we note that it is “generally 

appropriate” for an appellate court to reach the merits of an issue 

even if the district court has not done so, provided that, as here, 

“the factual record is developed and the issues provide purely 

legal questions upon which an appellate court exercises plenary 

review.” Hudson United Bank v. LiTenda Mortg. Corp., 142 

F.3d 151, 159 (3d Cir. 1998).

V. DISCUSSION

A. The District Court Erred in Finding This Case Not 

 Ripe.

The District Court concluded that plaintiffs’ challenge 

was not ripe for adjudication because it believed that DOL 

should be permitted to review and rule on issues involving labor 

certification, at least in the first instance, without intervention 

from the judiciary. Although we do not doubt that ordinarily 

DOL rather than a court should make administrative 

determinations of the type at issue here, the history of this case 

convinces us that we should intervene at this time because the 

fact that DOL plans to reconsider the appropriateness of the use 

of private wage surveys does not mean that plaintiffs’ challenge 

is unripe. See Am. Paper Inst. v. EPA, 996 F.2d 346, 355 n.8 

(D.C. Cir. 1993) (finding case ripe even though EPA was 

considering rulemaking which could moot case); Am. Petroleum 

Inst. v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990) (rejecting 

EPA argument that planned rulemaking rendered case unripe 

and noting “an agency always retains the power to revise a final 
19

rule through additional rulemaking. If the possibility that 

amendments to a rule was sufficient to render an otherwise fit 

challenge unripe, review could be deferred indefinitely.”).

As we have explained, courts require a case to be ripe to 

be adjudicated to avoid becoming entangled in premature 

adjudication. Abbott Labs., 387 U.S. at 148, 87 S.Ct. at 1515. 

With regard to administrative agency actions, considerations of 

ripeness reflect the need “to protect . . . agencies from judicial 

interference until an administrative decision has been formalized 

and its effects felt in a concrete way by the challenging parties.” 

Id. at 148-49, 87 S.Ct. at 1515. When deciding if a case is ripe 

for adjudication, a court must consider (1) the fitness of the 

issues for judicial decision and (2) the hardship to the parties 

from withholding judicial consideration. Id. When making a 

“fitness for review” determination, a court considers whether the 

issues presented are purely legal, and the degree to which the 

challenged action is final. A court must consider whether the 

claims involve uncertain and contingent events that may not 

occur as anticipated or may not occur at all. See Phil. Fed'n of 

Teachers v. Ridge, 150 F.3d 319, 323 (3d Cir. 1998). We have 

taken these considerations into account and now determine that 

it is appropriate to subject the issues presented here to judicial 

review at this time, and that further delay may cause plaintiffs to 

suffer unjustifiable hardship. Moreover, we are satisfied that 

plaintiffs are entitled to relief. Thus, we will reverse the order 

of July 23, 2014, grant relief, and remand the matter to the 

District Court for further proceedings.

1. This Case Is Fit for Judicial Resolution.

We are satisfied that DOL’s wage determinations 
20

predicated on private wage surveys are final agency actions. We 

come to this conclusion even though the District Court found 

that “DOL [has] not yet taken a final position – specifically 

here, as to whether prevailing wage determinations under 20 

C.F.R. § 655.10(f) using the 2009 Wage Guidance are valid, 

enforceable, and the specific wage methodology to be used.” 

CATA III, 2014 WL 4100708, at *8. Notwithstanding the 

District Court’s view, it is uncontested that both 20 C.F.R. § 

655.10(f) and the 2009 Wage Guidance have been in place for 

years, and DOL has been using them regularly when acting on 

labor certification applications. 

DOL’s use of the challenged rules distinguishes this 

proceeding from cases the District Court cited in its opinion as 

in those cases the agencies involved had not implemented the 

challenged rule. See Felmeister v. Office of Att’y Ethics, 856 

F.2d 529, 535-37 (3d Cir. 1988) (challenge to attorney 

advertising rule not ripe where ethics committee had yet to 

interpret the rule and plaintiff had never submitted 

advertisement for approval); Wearly v. FTC, 616 F.2d 662, 666-

68 (3d Cir. 1980) (challenge to subpoena not ripe where agency 

had not made a decision to enforce the subpoena); AT&T Corp. 

v. FCC, 369 F.3d 554 (D.C. Cir. 2004) (challenge not ripe 

because the FCC reserved judgment on whether safeguards were 

necessary and its policy remained undetermined). This case is 

different because DOL’s ongoing use of 20 C.F.R. § 655.10(f)) 

and 2009 Wage Guidance to approve private wage surveys 

demonstrates that DOL has taken a “final” position for the 

purposes of our ripeness determination. This finality is not 

undermined even though the present rules may not remain 

DOL’s last position with regard to H-2B program rules. See
21

Philadelphia Fed’n, 150 F.3d at 323.

The use and effect of DOL’s rules allowing private 

surveys in prevailing wage determinations make this case 

analogous to Center for Biological Diversity v. EPA, 722 F.3d 

401 (D.C. Cir. 2013), a case in which the Court of Appeals for 

the District of Columbia Circuit rejected a ripeness argument 

seeking dismissal of a challenge to a temporary regulation the 

EPA had committed to replace by a date certain. The court 

found the case ripe because the issues were “purely legal” and 

“sufficiently final” and the challenged regulation was causing 

injury to the plaintiff. Id. at 408. Cobell v. Babbitt, 30 F. Supp. 

2d 34 (D.D.C. 1998), is similarly instructive. In Cobell, the 

Department of the Interior argued that a challenge to individual 

Indian trust account (IIM) procedures was not ripe because the 

challenged procedures were interlocutory. Id. at 34. The court 

rejected that argument, stating:

Although the defendants surely can, and by their 

own admission should, reform the IIM trust 

accounting system, the deficiencies of their 

present system do not defeat its review on the 

grounds of finality. The system chosen by the 

defendants is being used in the administration of 

the plaintiffs’ accounts. The fact that the 

defendants have the power to change the system 

cannot render the present system they have 

chosen to be one interlocutory in nature.

Id. (emphasis added). The Cobell court emphasized that the 

Department was making ongoing use of the IIM system and that 

the plaintiffs had no choice but to have their accounts 
22

administered under that system. The accounting system was 

thus “final” for the purposes of a ripeness determination, 

although it was interlocutory in the sense that it was subject to 

further evaluation. See also Am. Paper, 996 F.2d at 355 n.8.

The District Court also relied on National Treasury 

Employees Union v. United States, 101 F.3d 1423, 1431 (D.C. 

Cir. 1996), for the proposition that the Court would conserve 

judicial resources by delaying adjudication of the dispute until 

DOL had completed its review and rule-making procedures. 

National Treasury, however, is unpersuasive with respect to the 

matter before us. That case involved a challenge to the Line 

Item Veto Act, which, although signed into law, would not go 

into effect until the President submitted a balanced budget. Id. 

Because it was unclear whether this triggering event ever would 

occur and, if so, when, and application of the Act could not 

harm the plaintiffs until such time, the court concluded that it 

would be a waste of judicial resources for it to entertain the 

challenge. Id. at 1430. Here, in contrast to the situation in 

National Treasury, plaintiffs’ harm is not contingent on some 

triggering event; DOL is using the challenged rules on an 

ongoing basis in the administration of the H-2B program. 

Accordingly, this case is presently fit for adjudication.

2. Withholding Judicial Consideration 

 Considerably Harms Plaintiffs.

The second prong of our ripeness analysis requires that 

we evaluate the hardship that may be imposed on the parties if 

the courts deny judicial review at this time, and determine 

whether the challenged action has a “direct and immediate” 

impact on the parties. See Abbott Labs., 387 U.S. at 152, 87 
23

S.Ct. at 1517.

The DOL’s evaluation of employer surveys using the 

skill-level provisions of 20 C.F.R. § 655.10(f) and the 2009 

Wage Guidance is adversely affecting United States workers by 

forcing them to accept depressed wages or face being replaced 

by foreign H-2B workers. Indeed, the District Court recognized 

that the workers were suffering this injury and noted that 

“Plaintiffs . . . will have every opportunity to participate in the 

new rulemaking planned for 2014-2015.” CATA III, 2014 WL 

4100708, at *10. But the possibility that plaintiffs will be able 

to participate in some future rulemaking that may or may not 

lead to a change in the rules does not ameliorate the harm that 

DOL’s current use of those rules is causing plaintiffs now.

DOL is not delaying or conditionally issuing its labor 

certifications during its internal deliberations; rather, it is using 

the directives of 20 C.F.R. § 655.10(f) and the 2009 Wage 

Guidance to issue certifications. Thus, we are facing a different 

landscape than would have been the case if DOL suspended 

issuing certifications based on private surveys or only issued 

certifications conditioned on the employer’s promise to make 

retroactive adjustments to the wages of the foreign workers 

taking into account the results of DOL’s future rulemaking. See

CATA I, 2010 WL 4823236, at *3 (DOL has authority to issue 

conditional certifications). Instead, it argues that 20 C.F.R. § 

655.10(f) and the 2009 Wage Guidance lack finality even 

though it is continuing to use them when issuing final labor 

certifications.

It seems clear that each time DOL uses the challenged 

rules to certify to DHS that an application using a private survey 
24

wage “will not adversely affect U.S. workers” pursuant to 8 

C.F.R. § 214.2(h)(6)(iv)(A), DOL is making a final economic 

determination as to both the validity of the survey and the 

economic effect of the survey wage.8 And despite some hedging 

by appellees during oral argument before us, it is evident that 

DOL’s continuing issuance of labor certifications based on the 

 

8 DOL asks this Court to affirm the District Court’s dismissal 

based on what DOL itself characterizes as an extension of the 

ripeness doctrine. The only case DOL cites in support of its 

“extension” argument is American Petroleum Institute v. EPA, 

683 F.3d 382 (D.C. Cir. 2012), a case in which a trade 

association of petroleum refineries petitioned for review of a 

2008 EPA rule deregulating hazardous secondary material but 

not addressing “spent refinery catalysts.” The challenged rule 

stated that the decision not to deregulate spent refinery catalysts 

was “tentative” and that EPA would “address the catalysts in a 

separate proposed rulemaking.” Id. at 386. While the case was 

on appeal, the EPA issued a notice of proposed rulemaking 

which indicated that it intended to treat spent refinery catalysts 

the same as other hazardous secondary material. Id. at 388. The 

court found that the tentative 2008 rule was causing the 

plaintiffs little harm and held the appeal in abeyance pending the 

completion of the new rulemaking. Id. at 389-90. We find the 

matter before us to be quite different. Here, there is nothing 

“tentative” about the challenged rules; DOL has been using

them since 2005 in making final determinations. Moreover, the 

ongoing, direct harm to the livelihood of United States workers 

attributable to use of the challenged regulations clearly 

distinguishes this case from American Petroleum.
25

skill-level provisions of 20 C.F.R. § 655.10(f) and the 2009 

Wage Guidance is affecting United States workers’ wages. 

Rather than pay non-skill-level OES wages required by the IFR 

and face an average 21% wage increase, more and more 

employers seek to exploit the lingering loophole in DOL’s 

administration of the H-2B program. See 78 Fed. Reg. at 

24,053, 24,058-59. 

In the 12 months prior to the District Court’s March 21, 

2013 order and subsequent issuance of the IFR, applicants 

submitted only 49 surveys employing a private wage survey 

determination.9 However, with the vacatur of the skill-level 

definition and DOL’s use of the mean OES survey wage as the 

prevailing wage, employers have turned to employer surveys as 

a way to continue paying depressed skill-level wages: 1,559 

employer surveys were approved in the nine-month period 

 

9 DOL publicly posts database summaries of prevailing wage 

determinations on its website at 

http://www.foreignlaborcert.doleta.gov/performancedata.cfm. 

In the year prior to the issuance of the IFR (April 2012 to March 

2013) seafood industry related jobs in SOC Codes 51‐ 3022

(Meat, Poultry, and Fish Cutters and Trimmers), 53‐7064 

(Packers and Packagers, Hand), and 45‐3011 (Fishers and 

Related Fishing Workers) constituted the only employer wage 

surveys accepted by DOL apart from those submitted in five 

cases for Ski/Snowboard Instructors under SOC Code 25‐3021 

(Self‐Enrichment Education Teachers). Each of the seafood 

industry occupational codes are classified by DOL as 

occupations requiring little prior training or experience.
26

between July 1, 2013, and March 31, 2014 – an increase from 

the prior period of more than 31 times (3,182%); 21.1% of those 

prevailing wage determinations were certified at wages below 

the OES Skill Level I wage (that is, at a wage less than the 

average paid by the lowest paying third of employers in the OES 

survey), and 94.4% offered wages below the OES Skill Level II 

wage.10

DOL has found that these wage levels are causing wage 

depression among domestic workers. 76 Fed. Reg. at 3463. 

Perhaps the most vivid illustration of the detriment to workers 

such as those represented by plaintiffs is the significant 

expansion of the usage of employer wage surveys in the 

landscaping industry, which did not submit any employer wage 

surveys in the year prior to April 2013 despite being the industry 

employing the most H-2B employees.11 In the nine-month 

 

10 That DOL will continue to approve skill level prevailing 

wages at these Skill Levels is apparent from the DOL quarterly 

update to its Office of Foreign Labor Certification (OFLC) 

Performance Data issued in mid-April. See: 

http://www.foreignlaborcert.doleta.gov/performancedata.cfm;

http://www.foreignlaborcert.doleta.gov/docs/py2014q2/PWD_F

Y14_Q2.xlsx. 

11 See DOL Office of Foreign Labor Certification, H-2B 

Temporary Non-Agricultural Labor Certification Program -

Selected Statistics, FY 2013, reflecting that those landscaping 

positions constituted 38% of the H-2B positions certified in 

FY2013. Available at: 

http://www.foreignlaborcert.doleta.gov/pdf/H2B_Selected_Stati
27

period from July 2013 to March 2014, 1,240 prevailing wage 

determinations for landscape workers (SOC Code 37-3011) 

were based on employer surveys, accounting for 42.7% of all 

the prevailing wage determinations made for that occupation 

during that period. DOL approved 97.7% of those surveys at 

wage rates below the OES Skill Level II wage rate.12

We are convinced that we should not permit DOL to 

continue to discharge its investigatory and rule-making 

functions as it is doing now because its continued approval of 

skill-level wages submitted based on employer wage surveys is 

not only adversely affecting the wages of similarly employed 

United States workers, but the H-2B program as now 

administered is leading to unjustified disparities between 

employers who submit private wage surveys and otherwise 

similarly situated employers who do not submit surveys and 

who therefore must pay the OES prevailing wage. An agency’s 

promise regarding prospective rulemaking has no effect on the 

ripeness of a challenge, like the one plaintiffs make here, when 

the challenged rules are being used as the basis of final agency 

actions. DOL’s proposed rulemaking, in the context of its 

ongoing practices and the harm suffered by plaintiffs, does not 

 

stics_FY_2013_YTD_Q4_final.pdf.

12 Of the 1,240 prevailing wage determinations issued for SOC 

Code 37-3011 based on employer provided wage surveys in the 

July 2013 to March 2014 time period, 1,212 cases resulted in 

prevailing wage determinations below the depressed Skill Level 

II wage rate and 174 of these cases (14%) involved 

determinations at wage rates below the Skill Level I wage rate.
28

somehow render what otherwise would be a case ripe for 

litigation unripe. Accordingly, we conclude that this matter is 

ripe for adjudication, and we will review the validity of 20 

C.F.R. § 655.10(f) and the 2009 Wage Guidance.

B. Section 655.10(f) Violates the Administrative 

 Procedure Act.

We have considered but rejected remanding this case to 

the District Court so that it could decide the case on the merits. 

Rather, in the interest of judicial economy and because we 

recognize that workers in this country are being prejudiced by 

the current administration of the H-2B program, we will reach 

the merits of this controversy. In deciding to do so, we reiterate 

that it is “generally appropriate” for a court of appeals to reach 

the merits of an issue that a district court did not decide 

provided, as is true here, “the factual record is developed and the 

issues provide purely legal questions upon which an appellate 

court exercises plenary review.” Hudson United, 142 F.3d at 

159. “In such a case, an appellate tribunal can act just as a trial 

court would, so nothing is lost by having the reviewing court 

address the disputed issue in the first instance.” Id.; see also

N.J. Carpenters v. Tishman Constr. Corp., 760 F.3d 297, 305 

(3d Cir. 2014) (deciding an issue under the Labor Management 

Relations Act that the district court did not reach).

We find support for our decision to reach the merits of 

the controversy in a recent court of appeals opinion dealing with 

a challenge under the APA to DOL’s H-2A temporary labor 

certification rules. Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 

2014). There the court of appeals, after finding that the district 

court improperly had dismissed the case for lack of standing and 
29

thus lack of jurisdiction, concluded that “[a] remand to the 

district court would be a waste of judicial resources” in light of 

the fact that “the district court has no comparative advantage in 

reviewing the agency action for compliance with notice and 

comment requirements. An appeal from any district court 

decision after remand is likely, and our review of the district 

court’s decision would be de novo.” Id. at 1020. The long 

litigation history of this matter shows that these considerations 

apply with equal force here.

1. Section 655.10(f) Violates 5 U.S.C. § 

 706(2)(D).

In considering this case on the merits, we determine first 

that Section 655.10(f) is procedurally invalid because DOL has 

not explained why it has been allowing employers to use private 

wage surveys in prevailing wage determinations when valid 

OES wage rates are available for the same purpose. An agency 

must show on the record that it has satisfied its obligation to 

supply a reasoned analysis when it departs from past policy. 5 

U.S.C. § 706(2)(D). Without such analysis, a reviewing court 

may conclude that an agency has taken action without 

complying with procedures required by law. Id. When making 

a shift in policy, an 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 v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866 (1983) (quoting 

Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 

S.Ct. 239, 242 (1962)). A reviewing court then “must consider 

whether the decision was based on a consideration of the 

relevant factors and whether there has been a clear error of 
30

judgment.” Id. (citations and internal quotation marks omitted). 

A court will set aside an agency’s action as “arbitrary and 

capricious” if the agency does not provide a “reasoned 

explanation” for its change in course. Massachusetts v. EPA,

549 U.S. 497, 534-35, 127 S.Ct. 1438, 1463 (2007); Nat’l Cable 

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 

981, 125 S.Ct. 2688, 2699-700 (2005) (“unexplained 

inconsistency” in agency practice is a reason for holding a 

policy reversal “arbitrary and capricious” under the APA, unless 

“the agency adequately explains the reasons for a reversal of 

policy”); see State Farm, 463 U.S. at 42–43, 103 S. Ct. at 2866-

67; see also CBS Corp. v. FCC., 663 F.3d 122, 145 (3d Cir. 

2011).

The history of this matter shows that prior to 2005, DOL 

would not consider employer wage surveys in prevailing wage 

determinations when an applicable governmental wage survey 

such as those of the DBA, SCA, or OES was available for that 

purpose. DOL changed that policy with the 2005 Wage 

Guidance, which authorized unlimited use of private surveys. 

At that time, DOL did not offer any explanation for that change 

in policy and it did not explain its policy change three years later 

when it codified the 2005 Wage Guidance as the 2008 Wage 

Rule, 20 C.F.R. § 655.10(b)(2) and (f) (2008). DOL’s failure to 

offer an explanation in 2008 is unfortunate in light of public 

comments on the 2008 rule questioning the use of employer 

surveys where valid OES wage rates were available, especially 

inasmuch as some of the comments presciently warned that 

allowing private surveys in prevailing wage determinations

would invite employers to undermine the OES wage rate. 73 

Fed. Reg. at 78,031. Both in 2005 and in 2008, DOL should 
31

have provided a “rational connection between the facts found 

and the choice made” with regards to these wage 

determinations. La. Forestry, 745 F.3d at 679 (citing State Farm 

Mut. Auto Ins., 463 U.S. at 43, 103 S.Ct. at 2866). 

Finally, in 2011, DOL proposed adoption of a policy 

limiting the use of private employer surveys to situations in 

which a valid government survey was not available for the same 

purpose. 76 Fed. Reg. at 3459, 3465-66. In doing so, DOL 

publicly acknowledged that DBA, SCA, and OES surveys were 

the most reliable bases for setting prevailing wages and that 

“employer surveys are not, generally, consistently reliable.” Id. 

at 3465. DOL also noted that “[e]mployers typically provide 

private surveys when the result is to lower wages below the 

prevailing rate . . . a result that is contrary to the Department’s 

role in ensuring no adverse effect.” Id. Yet when appropriation 

bill riders precluded the 2011 Rule from going into effect, DOL 

reversed its course again and issued its IFR in April 2013, 

allowing unlimited use of private surveys. The return to its 

post-2005 policy seems unjustifiable in light of DOL’s findings 

in the 2011 rulemaking, but, as in 2005 and 2008, DOL offered 

no explanation for the change in its policy. DOL simply stated:

This interim final rule will permit the use of 

employer-provided surveys in lieu of wages 

derived from the other sources, in order for DOL 

to provide the advice DHS has determined is 

necessary for it to adjudicate H-2B petitions.

78 Fed. Reg. at 24,054. This “explanation” is hardly sufficient 

for it merely explains what has been done, not why it was 
32

done.13 

We accordingly conclude that DOL has violated the APA 

by its repeated failures to provide explanations for its policy 

shifts. See 5 U.S.C. § 706(2)(D); La. Forestry, 745 F.3d at 679. 

Though we are aware that DOL faced considerable difficulty 

implementing the 2011 rule because of congressional 

appropriations riders precluding the spending of funds for that 

purpose, we nevertheless find DOL’s scant explanations 

insufficient to comply with APA requirements.14

 

13 DOL attempts to support its argument on this point by citing 

Gardner v. Grandolsky, 585 F.3d 786, 791 (3d Cir. 2009), but 

that case does not support its position. Gardner holds that when 

an “agency has articulated and acted on a consistent rationale 

throughout the course of a lengthy informal rulemaking process, 

the final rule is not arbitrary and capricious merely because the 

rationale was not fully reiterated in the final agency action.” Id. 

at 793 (citations omitted). As the history of the administration 

of the H-2B program shows, DOL’s actions are the antithesis of 

consistent. Its policy positions regarding private surveys have 

oscillated without explanation from 2005 to 2011 to 2013 and 

DOL has failed at every opportunity to “fully reiterate” its 

rationale for policy shifts.

14 It is significant that no party challenges Congress’s undoubted 

power to frustrate executive action by withholding 

appropriations necessary to implement that action. We also note 

that DOL has indicated that its decision to abandon the policies 

and factual findings in the 2011 rulemaking is explained in laterreleased Federal Register notices. However, the notices that 
33

2. Section 655.10(f) Violates 5 U.S.C. § 

 706(2)(A) as Arbitrary.

We next conclude that in addition to being procedurally 

flawed, Section 655.10(f) is substantively arbitrary, and, thus by 

adopting it, DOL violated 5 U.S.C. § 706(2)(A). Under the 

APA, a reviewing court may set aside agency action if it is 

“arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A). An agency acts 

arbitrarily and capriciously if it “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.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.

Given DOL’s endorsement of the OES wages as “among 

 

DOL references merely inform the public that the 2011 Wage 

Rule is not in effect due to an appropriations rider. They do not 

draw a connection between the appropriations rider and some 

intentional attack on the private wage survey provisions in the 

2011 Wage Rule – nor could they, as Congress itself offered no 

explanation for the adoption of the rider. See Consolidated and 

Further Continuing Appropriations Act, 2012, Pub. L. 112-55, 

125 Stat. 552, Div. B, Title V § 546 (2011); Consolidated 

Appropriations Act, 2012, Pub. L. 112-74, 125 Stat. 786, Div. F, 

Title I § 110 (2011); Continuing Appropriations Resolution 

2013, H.J. Res. 117, 112 Cong., 126 Stat. 1313 (2012); 

Consolidated and Further Continuing Appropriations Act, 2013, 

Pub. L. 113-6, 127 Stat 198, Div. F, Title 5 (2013).
34

the largest, most comprehensive, and continuous statistical 

survey programs of the Federal Government,” 78 Fed. Reg. at 

24,053; 76 Fed. Reg. at 3463; 69 Fed. Reg. 77,326, 77,369 (Dec. 

27, 2004), and its finding that the OES survey “is the most 

consistent, efficient, and accurate means of determining the 

prevailing wage rate for the H-2B program,” 76 Fed. Reg. at 

3465; see also id. (DOL stating that “employers typically 

provide private surveys when the result is to lower wages below 

the prevailing wage rate”), we are satisfied that DOL acted 

arbitrarily and capriciously when it permitted—and by its 

policies, structurally encouraged—employers to rely on details 

of a private survey when there was a valid OES wage survey 

available for use in determining the prevailing wage for the 

implicated employment. After all, DOL publicly has pointed 

out that employer surveys are generally unrealistic. See 76 Fed. 

Reg. at 3465 (DOL stating that “employers typically provide 

private surveys when the result is to lower wages below the 

prevailing wage rate”). Nonetheless, DOL has perpetuated a 

system by which employers are benefitted financially by 

submitting private surveys to justify wages lower than the OES 

wages, a practice that the interested parties in this case have well 

understood. As the District Court noted, “both sides 

acknowledge that employers pay for expensive private surveys 

aiming to obtain a wage rate that is lower than the available 

OES survey wage rate.” CATA III, 2014 WL 4100708, at *5. 

As a further illustration of the arbitrary nature of Section 

655.10(f), we emphasize that this authorization creates a system 

that permits employers who can afford private surveys to bring 

H-2B workers into the country for employment at lower wages 

than employers who cannot afford such surveys and who 
35

therefore must offer the higher OES prevailing wage. DOL’s 

statistics for the Philadelphia metropolitan area demonstrate that 

this disparity can be considerable. From July 2013 to April 

2014, DOL approved 115 prevailing wage applications for 

landscape workers in the Philadelphia metropolitan area. These 

approved applications included 32 based on the OES survey, 

which required a minimum payment of $14.04 per hour, and 83 

based on employer surveys, which were approved at wage rates 

ranging from $9.16 to $11.22 per hour—a difference amounting 

to as much as $200 for a 40-hour workweek. This kind of 

disparity that harms workers whether foreign or domestic, is 

readily avoidable, and completely unjustified. After years of 

litigation, DOL cannot offer any rational justification for this 

policy as it leads to similarly situated workers in the same 

market in the same season bringing home widely disparate 

paychecks. See Nazareth Hosp. v. Sec’y of HHS, 747 F.3d 172, 

179 (3d Cir. 2014) (“Agency action is arbitrary and capricious if 

the agency offers insufficient reasons for treating similar 

situations differently.”).

Failure to consider relevant factors or provide an 

adequate explanation for an agency action are indeed among the 

“wide range of reasons why agency action may be judicially 

branded as ‘arbitrary and capricious.’” FEC v. Rose, 806 F.2d 

1081, 1088 (D. C. Cir. 1986). DOL has not attempted to 

demonstrate that it has considered the relevant factors brought to 

its attention by interested parties during the course of the 

rulemaking, or that it had made a “reasoned choice among the 

various alternatives presented.” Nat’l Indus. Sand Ass’n v. 

Marshall, 601 F.2d 689, 700 (3d Cir. 1979). We conclude that 

20 C.F.R. § 655.10(f) is arbitrary and capricious and was 
36

adopted in violation of 5 U.S.C. § 706(2)(A). 

C. The 2009 Wage Guidance Violates the 

 Administrative Procedure Act.

DOL has acted contrary to law because, when evaluating 

wage surveys based on skill levels pursuant to the 2009 Wage 

Guidance, DOL directly contradicts the current prevailing wage 

definition in 20 C.F.R. § 655.10(b)(2) (2013), adopted in 

response to CATA I, which rejects skill-level considerations. 

Agency rules that are inconsistent with or in violation of an 

agency’s own regulations are unlawful. 5 U.S.C. § 706(2)(A) & 

(C); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 

S.Ct. 2381, 2386 (1994). DOL admits as much as it “agrees 

that employer-provided surveys likely should not be based on 

the collection of wages at skill levels.” See 76 Fed. Reg. at 

3466-67. Despite this candid acknowledgement, DOL requests 

that we allow the 2009 Wage Guidance to remain enforceable 

until DOL completes its proposed rulemaking. But we see no 

reason to allow DOL to continue to use a wage guidance that 

contradicts its own rules. 

It is particularly troublesome that use of the 2009 Wage 

Guidance violates 5 U.S.C. § 706(2)(A) and (C) in that the 

undercutting of the OES wage rate is impairing DOL’s carrying 

out of Congress’s statutory charge. Congress has charged DOL 

with the duty to ensure that it grants certifications only if they 

do not adversely affect wages and working conditions of United 

States workers, and it is the burden of DOL to be mindful of and 

honor that charge. However, employers increasingly have been 

submitting private surveys authorized by Section 655.10(f) in 

order to obtain a wage rate that is lower than the OES wage rate 
37

indicates would be appropriate—the wage rate DOL itself has 

determined is necessary to avoid an adverse effect on foreign 

and domestic employee’s wages. The 2009 Wage Guidance 

therefore establishes criteria contrary to both the letter and spirit 

of 5 U.S.C. § 706(2)(A) and (C), and DOL’s use of it in the 

consideration of labor certification applications is unlawful.

D. Vacatur is the Appropriate Remedy.

Finally we come to the remedy. Section 706(2) of the 

APA provides that a reviewing court shall “hold unlawful and 

set aside agency action” that violates the APA. 5 U.S.C. § 

706(2). Ordinarily, reviewing courts have applied that provision 

by vacating invalid agency action and remanding the matter to 

the agency for further review. See, e.g., Abington Mem. Hosp. 

v. Heckler, 750 F.2d 242, 244 (3d Cir. 1984). Here it is 

particularly appropriate to remand the case with a vacatur

because if we did not do so, we would leave in place a rule that 

is causing the very adverse effect that DOL is charged with 

preventing, and we would be “legally sanction[ing] an agency's 

disregard of its statutory or regulatory mandate.” CATA II, 933 

F. Supp. 2d at 714. DOL’s explanations during oral argument 

made clear that it has no expectation of expeditious 

administrative review or rehabilitation of either the 2009 Wage 

Guidance or its broad employer survey rule, 20 C.F.R. § 

655.10(f), despite DOL’s recorded admission that Section 

655.10(f)’s broad authorization of employer surveys “is contrary 

to the Department’s role in ensuring no adverse impact.” 76 

Fed. Reg. at 3465. 

We therefore act now to grant plaintiffs’ vacatur request 

of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. We hold 
38

both provisions to be arbitrary and capricious and in violation of 

the APA. We direct that private surveys no longer be used in 

determining the mean rate of wage for occupations except where 

an otherwise applicable OES survey does not provide any data 

for an occupation in a specific geographical location, or where 

the OES survey does not accurately represent the relevant job 

classification. We note that DOL’s existing regulations provide 

ample alternatives for setting prevailing wages including use of 

OES surveys. Moreover, DOL has the option of immediately 

issuing the employer survey portions of the 2011 rulemaking as 

an interim rule pursuant to 5 U.S.C. §§ 553(b)(B) and (d)(3). 

That rule offers rational, lawful limits on the use of employer 

surveys, already has gone through notice and comment, has been 

funded by Congress in its 2014 authorization, and has been 

upheld by this Court in Louisiana Forestry, 745 F.3d 653.15

VI. CONCLUSION

 

15 On January 17, 2014, the Consolidated Appropriations Act, 

2014, Public Law 113–76, 128 Stat. 5, was enacted. Unlike past 

appropriations, that Act did not include a rider banning 

appropriations to implement, administer, and enforce the 2011 

Wage Rule: For the first time in over two years, DOL's 

appropriations did not prohibit the implementation or 

enforcement of the 2011 Wage Rule. Wage Methodology for 

the Temporary Non–Agricultural Employment H–2B Program, 

79 Fed. Reg. at 14,453; see also 76 Fed. Reg. at 3452. The 

parties agree that the 2011 Wage Rule now is funded fully.
39

For the aforesaid reasons, we will reverse the District 

Court’s order dismissing this case on the ground that it is not 

ripe for review and hold that 20 C.F.R. § 655.10(f) and the 2009 

Wage Guidance are arbitrary and capricious and adopted in 

violation of the APA. We grant plaintiffs’ vacatur request of 20 

C.F.R. § 655.10(f) and the 2009 Wage Guidance as we hold 

both regulations to be arbitrary and capricious and in violation 

of the APA. We will remand this case to the District Court for 

any further proceedings that may be necessary.