Carol King Landscaping Maintenance, Inc. v. Acosta

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CAROL KING LANDSCAPING

MAINTENANCE, INC., a Florida

corporation, d/b/a Beach

Road Wine Bar and Bistro and

AMERICA AT PLAY, INC., a

Florida corporation, d/b/a

Beach Road Wine Bar and

Bistro,

Plaintiffs,

v. Case No: 2:19-cv-453-FtM-99NPM

PATRICK PIZZELLA, in his

official capacity as United

States Secretary of Labor,

MOLLY CONWAY, in her

official capacity as United

States Acting Assistant

Secretary of Labor,

Employment and Training

Administration, and THOMAS

DOWD, in his official

capacity as Deputy Assistant

Secretary of Labor,

Employment and Training

Administration,

Defendants.

OPINION AND ORDER

This matter comes before the Court on plaintiffs’ Motion for

Preliminary Injunction (Doc. #2) filed on July 1, 2019.

Defendants filed a Response in Opposition (Doc. #21) on July 16,

2019, and plaintiffs filed a Reply (Doc. #24) on August 1, 2019.1

1 The Court previously denied the portion of the Motion

In its Response to the Preliminary Injunction Motion (Doc. #21),

defendants raised the issue of standing, and on September 3, 2019

filed a Motion to Dismiss for Lack of Jurisdiction on this basis

(Doc. #35). Plaintiffs filed a Response in Opposition and Exhibit

(Docs. ##36, 37) on September 17, 2019.2 For the reasons set forth

below, the case is dismissed without prejudice for lack of

jurisdiction.

I. Background

Plaintiffs are small business owners and employers claiming

that defendants exceeded their authority under the Administrative

Procedures Act (APA) to implement a lottery selection process for

reviewing applications filed by employers seeking temporary

employment of foreign workers with H-2B visas. (Doc. #1.) On

March 4, 2019, the Department of Labor (DOL) issued a Notice in

the Federal Register announcing the lottery selection process

entitled “Selection Procedures for Reviewing Applications Filed by

Employers Seeking Temporary Employment of H-2B Foreign Workers in

the United States.” 84 Fed. Reg. 7399 (the “Notice”) (Doc. #2-

1.) The Notice announced that beginning on July 3, 2019, DOL

would begin use a new lottery system to randomly select and process

requesting the entry of a temporary restraining order. (Doc.

#10.)

2 Plaintiffs also address defendants’ standing argument in

their Reply in Support of the Motion for Preliminary Injunction

(Doc. #24), which the Court has considered.

applications for H-2B visas3 filed within the first three (3) days

of the season until the agency reaches the 33,000-worker cap set

by the Department of Homeland Security (the “Lottery Selection”).

DOL would thereafter process any remaining applications. The

Notice invited public comment to be submitted by April 3, 2019.

Public comments were received but were not published.

Plaintiffs challenge the Lottery Selection in a four-count

Complaint (Doc. #1) under the APA and request that the Court issue

a preliminary injunction to restrain the Lottery Selection from

continuing and find that the Notice is invalid and enter an order

vacating the Notice.

Some background on how the Lottery Selection process came to

be is helpful here. Participation of the H-2B visa worker program

has grown significantly over the years. As a result, prior to

Lottery Selection, employer’s H-2B visa applications were

sequentially assigned based on the calendar date and time the

applications were received, measured to the millisecond.

Plaintiffs state that they would submit their applications on the

first filing day at midnight to ensure control over their access

to the H-2B program. Because of the high number of applicants

3 The H-2B visa program (the “Program”) allows for non-

agricultural employers facing a shortage of U.S. employees to hire

temporary seasonal, unskilled foreign employees. The Program is

used predominantly by small businesses, including those involved

in landscaping, hotel, construction, restaurant, and forestry.

See 76 Fed. Reg. 15,130; 15,161.

that wanted to be first in line during the most recent filing

period on January 1, 2019, the DOL’s electronic filing system

crashed. Thereafter, the DOL reassessed its procedures and

developed the Lottery Selection process announced in the Notice.

On July 1, 2019 (two days before the Lottery Selection process

was set to be implemented), plaintiffs sought an ex parte temporary

restraining order from this Court to enjoin the Lottery Selection

process from taking effect. (Doc. #2.) On July 2, 2019, the

Court denied the portion of the Motion requesting the entry of a

temporary restraining order and took the request for a preliminary

injunction under advisement pending formal service and a response.

(Doc. #10.)

The Government informs the Court that July 3, 2019 came and

went without any application from plaintiffs for a temporary labor

certification(s) (TLC), which is required before an H-2B visa can

be issued to an employer. Thus, the Government argues that

plaintiffs lack Article III standing to seek judicial review

because plaintiffs have not suffered an actionable injury-in-fact

and requests that the Court dismiss this action in its entirety on

this basis.

Plaintiffs concede that Carol King Landscaping has not yet

filed their requests for a TLC, but that America at Play applied

and was granted 7 TLCs on September 9, 2019 (Doc. #37-1), but they

nonetheless have standing to bring this suit because they have

suffered a procedural injury and will suffer a future injury when

they file future TLC requests. (Doc. #24, pp. 2-4.) The Court

has reviewed the Declarations of Bruce Bachand, Vice President of

Carol King Landscaping Maintenance, Inc. (Doc. #1-2) and the

Declaration of Jill M. Athans-Hemmes, owner of America at Play,

Inc. (Doc. #1-3), who both assert that Lottery Selection will cause

them to lose all control over access to the H-2B program and their

businesses will suffer dramatically.4 The Court has also reviewed

the Declaration of Brian D. Pasternak from the Department of Labor,

who is responsible for the Office of Foreign Labor Certification’s

adjudication of applications for labor certification required for

temporary and permanent employment-based immigration. (Doc. #21-

1.) Pasternak is familiar with the plaintiffs’ past filing

history for TLCs.

II. Relevant Background of the H-2B Visa Program

The authority to administer the H–2B program is vested in the

Department of Homeland Security (DHS) pursuant to section 1184(c)

of the Immigration and Nationality Act (INA), which directs that

“[t]he question of any alien as a nonimmigrant under 8 U.S.C. §

1101(a)(15)(H) shall be determined by the [DHS] after consultation

with appropriate agencies of the Government, upon petition of the

4 “While we typically confine our standing analysis to the

four corners of the complaint, we may look beyond it when we have

before us facts in the record.” Corbett v. Transportation Sec.

Admin., 930 F.3d 1225, 1232 (11th Cir. 2019).

importing employer.” 8 U.S.C. § 1184(c)(1). The DHS has by

regulation designated the DOL as the agency from which it seeks

“advice” in determining whether to grant H–2B visa petitions. 8

C.F.R. § 214.2(h)(6)(iii). The DHS has also by regulation endowed

the DOL with the authority to create the procedures necessary to

fulfill its charge of issuing labor certifications.

The INA sets the annual number of aliens who may be issued H-

2B visas or otherwise provided H-2B nonimmigrant status by the DHS

to perform temporary non-agricultural work at 66,000, to be

distributed semi-annually beginning in October and April. 8

U.S.C. § 1184(g)(1)(B). Up to 33,000 H-2B visas may be issued in

the first half of a fiscal year (October 1 to March 31), and the

remaining visas (33,000, or more if some are left over from the

first semi-annual allocation) will be available for employers

seeking to hire H-2B workers during the second half of the fiscal

year (April 1 to September 30).5 8 U.S.C. § 1184(g)(10).

Because of the intense competition for H-2B visas in recent

years, the semi-annual visa allocation, and the regulatory

requirement that employers apply for a TLC 75 to 90 days before

the start date of work, employers who wish to obtain visas for

their workers under the semi-annual allotment for periods of need

5 The Federal Government’s fiscal year runs from October 1 of

the budget’s prior year through September 30 of the year being

described. For example, fiscal year 2019 runs from October 1,

2018, through September 30, 2019.

from April 1 to September 30, 2018 must promptly apply for a TLC

and then file a petition with USCIS before the cap is reached. As

a result, OFLC typically experiences a significant “spike” in labor

certification applications for temporary or seasonal jobs

beginning in the early spring and summer. The fiscal cap, however,

may be supplemented, and it has been in recent years. For example,

in fiscal year 2019, the H-2B visa cap for the second half of the

fiscal year was reached on February 29, 2019, but an additional

30,000 H-2B visas for the remainder of fiscal year 2019 were

authorized by the Secretary of Homeland Security and the Secretary

of Labor. 84 Fed. Reg. 20005. Increases also were announced for

fiscal years 2017 and 2018. See 82 Fed. Reg. 32987 (2017); 83

Fed. Reg. 24905 (2018).

III. Standing

A. Standard

Article III standing is a prerequisite to a federal court’s

exercise of subject-matter jurisdiction” J W by & through Tammy

Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1264 (11th

Cir. 2018), and the Eleventh Circuit has repeatedly held

“[s]tanding is a threshold jurisdictional question which must be

addressed prior to and independent of the merits of a party’s

claims.” Motions which raise mootness or the lack of standing

attack the court’s subject matter jurisdiction and are therefore

considered pursuant to Rule 12(b)(1). Doe v. Pryor, 344 F.3d

1282, 1284 (11th Cir. 2003). Rule 12(b)(1) motions challenging

the subject matter jurisdiction of the court come in two forms, a

“facial” attack motion and a “factual” attack motion. Morrison

v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). A facial

attack challenges subject matter jurisdiction based on the

allegations in the complaint, and the court takes the allegations

in the complaint as true in deciding the motion. Id. at 924 n.5.

The complaint may be dismissed for a facial lack of standing only

“if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.”

Jackson v. Okaloosa County, 21 F.3d 1531, 1536 n. 5 (11th Cir.

1994) (citation omitted).

When a court considers a Rule 12(b)(1) dismissal of a case on

a factual challenge to subject matter jurisdiction (either for

lack of standing or mootness), the court may consider facts outside

the pleadings such as testimony and affidavits as long as the facts

necessary to sustain jurisdiction do not implicate the merits of

plaintiff’s cause of action. Morrison, 323 F.3d at 924-25;

Goodman, 259 F.3d at 1331 n.6.

To establish Article III standing, a “plaintiff must have (1)

suffered an injury in fact, (2) that is fairly traceable to the

challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). The party invoking

federal jurisdiction (plaintiffs here) bears the burden of

establishing these elements. Id.

In cases such as this where the parties seek injunctive and

declaratory relief, the injury-in-fact demanded by Article III

requires an additional showing. In addition to past injury, “a

plaintiff must allege facts from which it appears there is a

substantial likelihood that he will suffer injury in the future.”

Worthy v. City of Phenix City, Alabama, 930 F.3d 1206, 1215 (11th

Cir. 2019) (quoting Malowney v. Fed. Collection Deposit Grp., 193

F.3d 1342, 1346 (11th Cir. 1999) (emphasis in original)). In

determining “whether a future injury is likely to occur, we

consider whether the plaintiff is likely to have another encounter

with a government officer due to the same conduct that caused the

past injury.” JW, 914 F.3d at 1264. Here, defendants raise only

the injury-in-fact element - that is, plaintiffs must show a real

and immediate threat of future injury.

Defendants appear to be making a purely facial attack on the

Complaint, arguing that plaintiffs fail to sufficiently allege an

injury-in-fact that would establish Article III standing to

proceed as the Complaint makes no allegations that plaintiffs have

actually submitted any TLCs for the DOL to process under its

current Lottery Process. Although defendant raise a facial attack

on Article III standing, in determining whether the Court has

jurisdiction to entertain plaintiffs’ claims, it may look beyond

the four corners of the Complaint. See Corbett v. Transportation

Sec. Admin, 930 F.3d 1225, 1232 (11th Cir. 2019) (“While we

typically confine our standing analysis to the four corners of the

complaint, we may look beyond it when we have before us facts in

the record.”). In this case, there are additional facts in the

record.

In addition to Article III standing, because this case is

brought pursuant to the Administrative Procedures Act (APA), a

plaintiff must also demonstrate that it has prudential standing.

Nat’l Credit Union Admin. v. First Nat’l Bank & Trust Co., 522

U.S. 479, 488 (1988); 5 U.S.C. § 702. That is, a plaintiff seeking

judicial review pursuant to the APA must (i) identify some “final

agency action” and (ii) demonstrate that its claims fall within

the zone of interests protected by the statute forming the basis

of its claims. Lujan v. National Wildlife Fed., 497 U.S. 871,

882-83 (1990). The Supreme Court has recognized that the

“prudential branch of standing” is not derived from Article III.

Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S.

118, 126 (2014).

Here, plaintiffs allege that they have a valid past, present,

and future injury; and the unlawful Notice creates a procedural

injury pursuant to the APA that affects plaintiffs’ concrete

interests as regulated entities. (Doc. #36, p. 2.)

B. Injury in Fact - Constitutional Standing for Future Injury

The Eleventh Circuit just this year discussed future injury

for purposes of standing at length:

In order to satisfy the injury-in-fact requirement of

standing, a plaintiff may show that he “has sustained or

is immediately in danger of sustaining some direct

injury.” Lynch v. Baxley, 744 F.2d 1452, 1456 (11th

Cir. 1984) (quoting O’Shea v. Littleton, 414 U.S. 488,

494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).

....

A plaintiff need not wait for an injury to occur, so

long as he “is immediately in danger of sustaining some

direct injury” as a result of the challenged official

conduct and the injury or threat of injury is both “real

and immediate,” not “conjectural” or “hypothetical.”

Id. at 101–02, 103 S.Ct. 1660 (quotations omitted); see

also Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct.

1717, 109 L.Ed.2d 135 (1990) (“A threatened injury must

be certainly impending to constitute injury in fact.”)

(quotations omitted); 31 Foster Children, 329 F.3d at

1266–67 (noting that standing for declaratory or

injunctive relief requires that future injury “proceed

with a high degree of immediacy”).

Immediacy requires that the anticipated injury occur

within some fixed period of time in the future. Fla.

State Conference of N.A.A.C.P. v. Browning, 522 F.3d

1153, 1161 (11th Cir. 2008). “When a plaintiff cannot

show that an injury is likely to occur immediately, the

plaintiff does not have standing to seek prospective

relief even if he has suffered a past injury.” 31 Foster

Children, 329 F.3d at 1265. And even if the plaintiff

shows immediacy, the injury must still be substantially

likely to actually occur, meaning that the threatened

future injury must pose a realistic danger and cannot be

merely hypothetical or conjectural. Fla. State

Conference of N.A.A.C.P., 522 F.3d at 1161; see also

Bowen, 233 F.3d at 1340 (observing that a “perhaps or

maybe chance” of an injury occurring is not enough for

standing).

Corbett v. Transportation Sec. Admin., 930 F.3d 1225, 1232 (11th

Cir. 2019).

The Corbett decision went on to examine past cases from both

the Supreme Court and the Eleventh Circuit that explored the issue

of when the likelihood of future injury was too speculative to

support standing. Most instructive for our purposes is Elend v.

Basham, 471 F.3d 1199, 1209 (11th Cir. 2006). See Corbett, 930

F.3d at 1234. In that First Amendment case, protestors sought to

enjoin the Government from taking similar action in the future,

and they claimed to have standing because they “fully intend[ed]

to peacefully express their viewpoints in the future in a manner

similar to their activities on November 2, 2002 in concert with

presidential appearances at the ... Sun Dome and at other locations

around the country.” Eland, 471 F.3d at 1204. In finding that

plaintiffs lacked standing, the court stated that the plaintiffs’

intention to protest in a similar manner in the future was too

speculative because “[o]ther than the one instance in November

2002, we’re not even given a description of Plaintiffs’ past

conduct from which to infer that they might act in a similar manner

in the future,” and thus it was “entirely conjectural that

President Bush would return to speak at a political rally at the

Sun Dome.” Id. at 1209.

In examining the record for evidence concerning the

likelihood of future harm, the Court reviews the Government’s

Declaration of Brian Pasternak, stating that in the past five

years, Carol King Landscaping has submitted H-2B applications at

the beginning of January for four of those five years.6 By

contrast, in the past five years, America at Play has only applied

twice for H-2B visas (on September 15, 2017 and August 13, 2018)7,

and never in the month of January. (Doc. #21-1, ¶¶ 33-36.)

1. America at Play

Plaintiffs state that on September 9, 2019, America at Play

d/b/a Beach Road Wine Bar and Bistro, was able to obtain a TLC for

this upcoming season under the Lottery Selection process. (Doc.

#37-1.) The Approval of H-2B Temporary Labor Certification (Doc.

#37-1) shows that America at Play received certification for 7

workers with an employment begin date of November 1, 2019, and end

date of May 1, 2020. Therefore, America at Play’s claim of future

injury is too speculative to rise to the level of substantial

likelihood as required by Supreme Court and Eleventh Circuit case

law. See Corbett, 930 F.3d at 1232. In other words, due to the

6 And plaintiffs’ Complaint also alleges that Carol King

Landscaping files is application on January 1 to better ensure

access to the Program. (Doc. #1, ¶ 10.)

7 In contrast, the Complaint alleges that America at Play

generally applies for workers on or about July 3 of each year.

(Doc. #1, ¶ 10.)

fact that America at Play received TLCs during the pendency of

this case cuts against its substantial likelihood argument, and

America at Play’s request for a TLC has been infrequent enough

that there is no likelihood of injury that is actual and imminent

enough to support standing. See Corbett, 930 F.3d at 1236

(emphasis in original) (quoting Lujan, 504 U.S. 560) (“We recognize

there’s a chance that he might be selected in the future, based on

the random selection process, but that is not enough under our

case law to show a substantial likelihood of future injury that is

real and immediate, actual and imminent, and not conjectural or

hypothetical.).

Therefore, this case is dismissed for lack of standing as to

America at Play because they have failed to show a substantial

likelihood of future injury.

2. Carol King Landscaping

By contrast, Carol King Landscaping (to the Court’s

knowledge) has not yet submitted H-2B applications during the

pendency of this case but states that it plans to apply at the

beginning January. Indeed, Carol King has applied at the

beginning of January for four of the last five years. (Doc. #21-

1.) However, even assuming that Carol King Landscaping does apply

for under the Lottery Selection process in January 2020, there is

no indication (let alone a substantial likelihood) that Carol King

would be injured. Indeed, America at Play did receive TLCs when

it applied, undercutting any argument that the Lottery Selection

process forecloses plaintiffs’ access to the program.

It is worth noting that as of July 5, 2019, the Government

had received applications representing 12,098 worker positions for

October 1, 2019 start dates. As this number is below the 33,000

slots allotted, plaintiffs state in their brief that the Lottery

Selection process has not yet had the effect of actually depriving

an applicant of a TLC. (Doc. #24, fn.3.) However, because the

DOL conducts the lottery on a daily basis, plaintiffs believe that

the Lottery Selection process will in fact deprive plaintiffs of

a TLC when the number of applications exceeds the number of slots

remaining. (Id.) Plaintiffs state it is unclear when this will

happen, but it is all but certain to happen plaintiffs apply for

TLCs during the pendency of this case. (Id.)

Therefore, this case is dismissed for lack of standing as to

Carol King Landscaping because they have failed to show a

substantial likelihood of future injury.

C. Redressability

The more substantial standing issue, not raised by

defendants, is the redressability prong of the constitutional

standing requirements. In order for plaintiffs to show that they

have standing, they must demonstrate that their alleged injury is

redressable by a favorable ruling or decision. Clapper v. Amnesty

Intern. USA, 568 U.S. 398, 409 (2013); Fla. Wildlife Fed’n, Inc.

v. South Fla. Water Mgmt. Dist., 647 F.3d 1296, 1303–04 (11th Cir.

2011). The Eleventh Circuit has stated that redressability is

“one of the more amorphous requirements of modern standing

doctrine.” I.L. v. Alabama, 739 F.3d 1273, 1279 (11th Cir. 2014).

As a general matter, however, “[r]edressability is established

when a favorable decision would amount to a significant increase

in the likelihood that the plaintiff would obtain relief that

directly redresses the injury suffered.” Fla. Wildlife Fed’n, 647

F.3d at 1303–04 (quoting Mulhall v. UNITE HERE Local 355, 618 F.3d

1279, 1290 (11th Cir. 2010)). Here, even absent a court order,

America at Play was able to obtain the TLCs that it desired, and

plaintiffs have otherwise not demonstrated how a Court order

directing the DOL to vacate the Notice would result in the DOL

instituting different selection procedures that would result in

plaintiffs ultimately receiving the TLCs that they desire. Thus,

plaintiffs’ claims are also due to be dismissed for lack of

standing because they have failed to show redressability.

Because the Court has determined that plaintiffs have failed

to establish Article III standing, it need not address whether

plaintiffs would have prudential standing under the zone-of-

interest test. Accordingly, the request for a preliminary

injunction is denied as moot.

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Defendant Motion to Dismiss for Lack of Jurisdiction

(Doc. #35) is GRANTED. Plaintiffs’ Complaint (Doc. #1) is

dismissed without prejudice for lack of subject-matter

jurisdiction. The Clerk is directed to enter judgment

accordingly, terminate any pending motions and deadlines, and

close the file.

2. Plaintiffs’ Motion for Preliminary Injunction (Doc. #2)

is denied as moot.

DONE and ORDERED at Fort Myers, Florida, this _ 26th __ day of

September, 2019.

\_f — Ap f

vA = Pe

E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

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