Hispanic Affairs Project v. R. Alexander Acosta

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2018 Decided August 17, 2018

No. 17-5202

HISPANIC AFFAIRS PROJECT, ET AL.,

APPELLANTS

v.

R. ALEXANDER ACOSTA, IN HIS OFFICIAL CAPACITY AS UNITED

STATES SECRETARY OF LABOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01562)

Dermot Lynch argued the cause for appellants. With him

on the briefs was William W. Taylor, III.

Heather Sokolower, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With her on the brief

was Erez Reuveni, Assistant Director.

Christopher J. Schulte was on the brief for intervenors

aligned with defendants-appellees, Western Range Association

and Mountain Plains Agricultural Service.

Before: GARLAND, Chief Judge, and SRINIVASAN and

MILLETT, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: For all the pastoral images it

may invoke, tending to a flock is no easy task. Livestock

herders often spend months at a time living in makeshift

campsites on a remote range, on call twenty-four hours a day

to protect the herd. Given the spartan and isolated working

conditions, the sheep and goat industries have become almost

wholly dependent on foreign labor to work as herders. Many

of these foreign workers come to the United States on what are

known as H-2A visas, which allow nonimmigrants to enter to

perform certain agricultural work. By law, H-2A visas may

issue only if the employer’s need for the worker is temporary

or seasonal. But time and again, federal agencies have

allowed ranchers to employ foreign herders on H-2A visas for

year-round, non-seasonal work that lasts up to three years at a

stretch.

The Hispanic Affairs Project, a membership organization

of herders, and four individual herders challenge those

agencies’ 364-day certification period for H-2A visas as

unmoored from the reality of herders’ employment, and the

agencies’ allegedly persistent pattern of routinely extending

“temporary” visas to meet ranchers’ anything-but-temporary

need for herders. They also challenge a number of additional

regulatory measures, including the minimum wage required for

herders. We hold that the challenge to the policies pertaining

to the certification and automatic extension of H-2A visas can

go forward, but we otherwise affirm the district court’s

dismissal of the plaintiffs’ claims.

3

I

A

Dubbed “H-2A,” Section 1101(a)(15)(H)(ii)(a) of the

Immigration and Nationality Act defines qualifying

“nonimmigrant[s]” as those “having a residence in a foreign

country” with “no intention of abandoning [it],” and who come

to the United States “to perform agricultural labor or services

* * * of a temporary or seasonal nature.” 8 U.S.C.

§ 1101(a)(15)(H)(ii)(a) (emphasis added). H-2A-visa holders

have no independent route to apply for permanent residency or

legal citizenship. Instead, they are dependent on their visa

sponsors to lawfully stay in and return to the United States for

work. See 20 C.F.R. § 656.16 (only employers can opt to

apply for a permanent labor certification for herders, which can

lead to residency and citizenship).

The Department of Homeland Security and the

Department of Labor are jointly responsible for administering

the H-2A program. To obtain an H-2A visa to bring in

foreign workers, an employer must first submit to the Labor

Department an Application for Temporary Employment

Certification. In that Application, the employer must establish

that: (i) the temporary foreign worker will “perform

agricultural labor or services of a temporary or seasonal

nature,” 20 C.F.R. § 655.103; (ii) there are no domestic

workers available that are qualified to fill the position; and (iii)

hiring the foreign workers would not “adversely affect the

wages and working conditions of workers in the [United States]

similarly employed,” id. § 655.100; 8 U.S.C. § 188(a)(1). If

the Labor Department finds that those requirements are met, it

may issue the Certification.

4

The torch is then passed to the Department of Homeland

Security, which makes the final decision on whether or not to

grant the employer’s H-2A petition. 8 U.S.C § 1184(c)(1).

To obtain that final approval, the H-2A petition must establish

to Homeland Security’s satisfaction that the proposed

employment, among other things, is of a “temporary or

seasonal nature,” 8 C.F.R. § 214.2(h)(5)(iv)(A). 1

Homeland Security regulations define “temporary” as

“where the employer’s need to fill the position with a

temporary worker will, except in extraordinary circumstances,

last no longer than one year.” 8 C.F.R. § 214.2(h)(5)(iv)(A)

(emphasis added). Homeland Security regulations emphasize

that the Labor Department’s earlier finding that the

employment would be temporary is “normally,” but not

necessarily, “sufficient[.]” Id. § 214.2(h)(5)(iv)(B).

Homeland Security could take exception to that prior finding if

“substantial evidence” shows that “the employment is not

temporary or seasonal.” Id.

Once an H-2A visa issues, the immigrant worker can stay

for the duration of the “validity of the labor certification or for

a period of up to one year,” but in no event can the stay “exceed

three years.” 8 C.F.R. § 214.2(h)(15)(ii)(C). As it turns out,

in practice, most herders stay and work for just short of three

years, spend three months in their home country, and then

return to the United States on another H-2A visa. See Second

1

While the Act refers to the Attorney General as the final

decisionmaker on H-2A applications, the Attorney General has the

power to “delegate such authority,” 8 U.S.C. § 1103(g)(2), and the

Department of Homeland Security is now largely responsible for

“administration and enforcement” of “immigration and

naturalization” matters, id. § 1103(a)(1), including H-2A visas, see

generally Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. rel. Barez,

458 U.S. 592, 595 (1982).

5

Amended Complaint, Hispanic Affairs Project v. Perez, No.

15-1562 (D.D.C. Dec. 22, 2015), ECF No. 58 at ¶ 51 (“Second

Am. Compl.”); J.A. 776 (ranching employer referring to

herders’ “three-year contracts on an H-2A visa”); J.A. 796

(another employer relating that the H-2A program permits

herders to “come to the U.S. for up to 3 years and then return

to their home country for a brief period of time”).

B

To protect domestic jobs, the Department of Labor has

promulgated regulations that set minimum wages and working

conditions for H-2A workers and their domestic counterparts.

Generally, the Labor Department requires the employers of H-

2A workers to pay those workers the highest wage set by (i) the

Adverse Effect Wage Rate, which is determined by Labor “to

ensure that the wages of similarly employed U.S. workers will

not be adversely affected[,]” 20 C.F.R. § 655.1300; (ii) “the

prevailing hourly wage or piece rate; [(iii)] the agreed-upon

collective bargaining wage; or [(iv)] the Federal or State

minimum wage,” id. § 655.120(a).

But employers of open-range herders, such as sheep and

goat herders, are exempt from that minimum-wage requirement

due to the unique characteristics of the position, which include

“spending extended periods” of time “in isolated areas and

being on call twenty-four hours a day, seven days a week to

protect livestock.” Mendoza v. Perez, 754 F.3d 1002, 1009

(D.C. Cir. 2014). In 2011, the Secretary issued a Training

Employment Guidance Letter that formalized the exemption of

herder employers from the regulation’s prescribed wage rates.

The 2011 Guidance Letter adopted instead a different method

for calculating the prevailing wage, setting a lower floor for

what employers must pay H-2A open-range herders.

6

In an earlier case challenging the procedural validity of the

2011 Guidance Letter, we held that the Administrative

Procedure Act required that the Guidance Letter’s prescriptive

content be promulgated through the notice-and-comment

process, 5 U.S.C. § 553. See Mendoza, 754 F.3d at 1008–

1009, 1024–1025. The case was then remanded, and the

district court ruled that the invalidated 2011 Guidance Letter

could remain in effect while a new rule was properly

promulgated. ORDER, Mendoza v. Perez, No. 11-1790

(D.D.C. Oct. 31, 2014), ECF No. 54 at 1.

The Labor Department then promulgated a new rule,

through notice and comment, that took effect on November 16,

2015. 80 Fed. Reg. 62,958 (Oct. 16, 2015). The 2015 Rule

laid out a number of regulations governing the employment of

seasonal and temporary herders, including minimum-wage

standards. Id. The 2015 Rule applies not only to goat and

sheep herders, but also to open-range herding of other

livestock, such as cattle. 80 Fed. Reg. at 62,962.

C

The Hispanic Affairs Project is a Colorado-based non-

profit advocacy organization whose members consist of both

United States resident and nonimmigrant “current H-2A

shepherds who have labored under the 2011 * * * and 2015

Rule, and former herders who would legally work as herders

again but for the low wages earned by workers in this industry.”

Second Am. Compl. ¶ 4. The Project and four individual

shepherds (collectively, “the Project”) filed suit against the

Departments of Labor and Homeland Security under the

Administrative Procedure Act, 5 U.S.C. § 551 et seq. As

relevant here, the Project sought a declaratory judgment that

the 2011 Training and Employment Guidance Letter was

substantively invalid and challenged the agencies’ practice of

7

automatically extending visas for up to three years as arbitrary

and capricious for failure to comply with the statutory

obligation to limit H-2A visas to “temporary” work. The

Project also contends that the minimum wage set for herders by

the 2015 Rule is unjustifiably low. 2

The district court dismissed claims related to the already-

vacated 2011 Guidance Letter for lack of standing because the

plaintiffs’ injuries were not redressable by a favorable decision

from the court. See Hispanic Affairs Project v. Perez, 206 F.

Supp. 3d 348, 366 (D.D.C. 2016). The district court later

granted summary judgment for the agencies on the remaining

claims. See Hispanic Affairs Project v. Acosta, 263 F. Supp.

3d 160, 207 (D.D.C. 2017). The court refused to consider the

Project’s argument that the agencies’ authorization of

“permanent” H-2A visas violates the Immigration and

Nationality Act for two reasons. First, the court ruled that the

Project’s challenge “boil[ed] down to an attack on [Homeland

Security’s] H-2A regulations[,]” which was not raised in its

complaint and, in any event, was outside the APA’s six-year

statute of limitations. Id. at 185. Second, the court held that

the Project had failed to raise during the administrative

proceedings its challenge to Labor’s finding that employers’

need for herders is “temporary” and so had waived the issue.

Id. at 186–190. As for the Project’s other challenges to the

2015 Rule, including to the minimum-wage rate, the district

court held that the agency decisions were reasonable. Id. at

192–199.

2

Plaintiffs initially brought their action in the District Court for

the District of Colorado, but the case was transferred to the District

Court for the District of Columbia as related to the Mendoza case.

ORDER GRANTING JOINT MOTION TO TRANSFER, Hispanic Affairs

Project v. Perez, No. 15-1785 (D. Colo. Sept. 22, 2015), ECF No.

18.

8

II

This Court reviews de novo a district court’s grant of

summary judgment. Clemente v. FBI, 867 F.3d 111, 119

(D.C. Cir. 2017). Dismissals for lack of subject matter

jurisdiction or failure to state a claim are likewise reviewed de

novo. Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 183

(D.C. Cir. 2006). Under the Administrative Procedure Act, a

reviewing court “shall hold unlawful and set aside agency

action” that is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2).

Applying those standards, we hold that (i) the Project’s

complaint adequately raised a challenge to the Department of

Homeland Security’s practice of automatically extending

“temporary” H-2A petitions for multiple years; (ii) the Project

adequately preserved its challenge to the Department of

Labor’s decision in the 2015 Rule to classify herding as

“temporary” employment; (iii) the 2015 Rule’s minimum-

wage rate for herders is not arbitrary, capricious, or

unsupported by the record; and (iv) the Project lacks standing

to challenge the wage rates set by the already-vacated 2011

Guidance Letter.

III

A

1

At the heart of the Project’s lawsuit is Homeland

Security’s alleged pattern and apparent policy of routinely

extending a herder’s 364-day H-2A visa so that, in practice, the

temporary authorization lasts for up to three years at a time,

and those prolonged periods of employment are repeated over

9

and over, interrupted only by the herders’ brief, pro forma

visits to their home country once every three years.

Homeland Security regulations require that H-2A visas be

for “temporary” work, and they define temporary as, “except

in extraordinary circumstances, last[ing] no longer than one

year.” 8 C.F.R. § 214.2(h)(5)(iv)(A). The only exception is

that an H-2A worker “may remain longer to engage in other

qualifying temporary agricultural employment by obtaining an

extension of stay” not to exceed three years. Id.

§ 214.2(h)(5)(viii)(C) (emphasis added). Homeland Security

has made no official decision that herder visas categorically

present the type of “extraordinary circumstances” justifying

across-the-board extensions. So that means that an H-2A

herder cannot stay in the United States for more than the 364

days provided in his petition, unless he engages in “other”

temporary work. Id. 3

The Project contends that, in contravention of the statutory

and regulatory requirements that herder visas may be used only

for temporary work, Homeland Security’s “policy is that visa

petitions will be issued for indefinite periods, with short breaks

every three years for this permanent workforce.” Second Am.

Compl. ¶ 51. In district court, the Project provided multiple

declarations from its employees, members, and other herders,

along with statements from employers, all confirming that, due

to Homeland Security’s policy of “continually renew[ing]” H-

2A visas, herders frequently stay in their positions for much

longer than the 364 days authorized by the regulation, and

commonly work for up to three years at a time. See, e.g., J.A.

3

Visas may also be provided for “seasonal” work. 8 U.S.C.

§ 1101(a)(15)(H)(ii)(a). That provision is not at issue here because

Labor has decided that herding should be classified and regulated as

temporary work. 80 Fed. Reg. at 63,000.

10

332 (interviews with H-2A shepherds reveal that “they work

on a permanent basis in [the United States] pursuant to

continually renewed H-2A contracts that last around three

years”); J.A. 335 (“[A Worker-Advocate] h[as] met at least

ninety shepherds who were working on at least their second

three-year contract,” and around sixty workers who “have done

more than three contracts.”); J.A. 343 (herder attests that, from

2006 to 2015, he completed three almost-three-year H-2A

shepherd contracts with the same employer); J.A. 355 (“Most

H-2A shepherds I have met in Colorado, Utah, and Wyoming

complete contracts that last three years.”); J.A. 359

(Announcement from H-2A Employer Western Range

Association stating that H-2A shepherd contracts have a “36

month work period”); see also 80 Fed. Reg. at 62,999 (“Several

employer comments indicate that they re-employ the same H-

2A workers over the years.”). 4 As the district court found, the

record evidence “indicates that H-2A shepherds * * * return

many times working for the same rancher for up to twenty

years.” Hispanic Affairs Project, 263 F. Supp. 3d at 180.

As a result, according to the Project’s extensive evidence

of Homeland Security’s actual practice, which we take as true

at this procedural juncture, both herders and their employers

4

The district court struck many of the Project’s declarations

because they were outside of the administrative record considered by

the Labor Department in promulgating its 2015 Rule. Hispanic

Affairs Project, 263 F. Supp. 3d at 172. But as relevant here, the

Project employs the declarations for the distinct and permissible

purpose of proving that the Department of Homeland Security has a

practice or policy of routinely extending H-2A visa status for three

years—a policy that is alleged to contravene both the Immigration

and Nationality Act and its own regulations. See Venetian Casino

Resort, LLC. v. Equal Employment Opportunity Comm’n, 530 F.3d

925, 930 (D.C. Cir. 2008) (permitting external evidence to determine

whether an agency’s challenged policy exists).

11

routinely operate on the expectation that herders will travel to

the United States to work for just shy of three years before

returning home for a brief period of time, and then returning

for another nearly three-year stint. See, e.g., J.A. 335; J.A.

776. There also is no evidence, from Homeland Security or

otherwise, to indicate that a widespread pattern of either

extraordinary circumstances or herders engaging in “other

qualifying” work have underlain Homeland Security’s

seemingly routine and repeated extensions of visas at the end

of the shepherds’ 364-day certification periods.

On that evidentiary basis, the Project has plausibly shown

that the agency’s de facto policy of authorizing long-term visas

is arbitrary, capricious, and contrary to law, in violation of the

APA and the Immigration and Nationality Act, 8 U.S.C. § 1101

et seq., because it “[a]uthoriz[es] the creation of permanent

herder jobs that are not temporary or seasonal[.]” Second Am.

Compl. ¶¶ 112, 114.

The district court, however, dismissed this claim against

Homeland Security because the court understood the Project to

be attacking Homeland Security regulations, and then found

that those regulatory challenges were neither raised in the

complaint, nor timely under the APA’s six-year statute of

limitations. Hispanic Affairs Project, 263 F. Supp. 3d at 185–

186.

The district court was mistaken. In this claim, the Project

is not challenging Homeland Security’s formal regulations.

The Project takes no exception to the content of the

certification and extension regulations. That is because

nothing in the written regulations licenses the routinized

approval of H-2A shepherd petitions and visa extensions for

triple the amount of time permitted by the regulation’s explicit

definition of “temporary.” 8 C.F.R. § 214.2(h)(5)(iv)(A); see

12

Second Am. Compl. ¶¶ 51, 112, 114. Instead, what the

Project assails is Homeland Security’s practice of shrugging off

those statutory and regulatory limitations, seemingly ignoring

their straightforward requirement that herders’ work be

“temporary.”

The district court viewed the extension policy and practice

as “intertwined” with the formal regulations. Mendoza, 263

F. Supp. 3d at 186. The opposite is true. If the Project were

to prove its claims of routine three-year or longer employment

terms, Homeland Security’s policy and practice would

contravene the plain text of its own regulations. See 8 C.F.R.

§ 214.2(h)(5)(iv)(A) (requiring H-2A employment to be

“temporary or seasonal”); id. § 214.2(h)(15)(ii)(C)

(recognizing that H-2A employees are typically permitted to

stay for “a period of up to one year”).

An agency’s unannounced departure in practice from a

written regulation is a distinct form of agency action that is

challengeable, separate and apart from adoption of the

regulation itself. See INS v. Yueh-Shaio Yang, 519 U.S. 26, 32

(1996) (Once an agency “announces * * * a general policy by

which its exercise of discretion will be governed, an irrational

departure from that policy (as opposed to an avowed alteration

of it) could constitute action that must be overturned as

‘arbitrary, capricious, [or] an abuse of discretion’ within the

meaning of the [APA.]”); see also Venetian Casino Resort,

LLC. v. Equal Employment Opportunity Comm’n, 530 F.3d

925, 930 (D.C. Cir. 2008) (“[M]aintain[ing] two irreconcilable

policies, one of which * * * [allows] circumvent[ion] of the

other regulation * * * is arbitrary and capricious agency

action.”). In other words, the Project did not need to list a

specific Homeland Security regulation in its complaint as long

as it made clear what policy and practice it challenged. See

Second Am. Compl. ¶ 51. Because the Project was not

13

challenging a specific regulation as unlawful, the district court

erred in finding that the claim was not raised in the complaint

and was barred by the APA’s six-year statute of limitations for

challenging specific regulations.

2

Homeland Security offers an alternative theory to support

dismissal. The agency argues that Lujan v. National Wildlife

Federation, 497 U.S. 871 (1990), closes the door on the

Project’s “programmatic challenge[s]” to Homeland Security’s

general governance and administration of the H-2A program,

id. at 908. In National Wildlife Federation, a federal statute

authorized the Secretary of the Interior, in declassifying public

lands, “to determine whether, and for how long, the

continuation of the existing withdrawals of the lands would be,

in his judgment, consistent with the statutory objectives of the

programs for which the lands were dedicated and of the other

relevant programs.” Id. at 877 (internal quotation marks

omitted). The Wildlife Federation filed suit bringing a

programmatic “challenge to all aspects of” a land withdrawal

scheme, seeking to prescribe how the Secretary could and

could not exercise that broad and non-specific grant of

statutory authority. Id. at 890 n.2.

National Wildlife Federation is of no help to Homeland

Security here. The Supreme Court stressed in National

Wildlife Federation that, in contrast to the broad programmatic

takeover advanced there, an agency’s action in “applying some

particular measure across the board * * * [could] of course

[still] be challenged under the APA.” 497 U.S. at 890 n.2.

The Project is doing just that—arguing the unlawfulness of

Homeland Security’s “particular” practice of habitually

approving and extending H-2A visas for lengthy periods of

time. The statutory command that the Project seeks to

14

enforce—that H-2A visas be temporary and short-lived—is

cabined and direct, and the Project targets its argument to an

identified transgression of that statutory and regulatory

language, not to an exercise of broad, unspecified discretion.

What is more, Homeland Security itself claims no broad

discretionary cloak for its actions, confirming quite explicitly

that if “[herders] are permanent workers then they shouldn’t get

approval on a temporary basis.” Oral Argument Tr. 41:8–

41:9. Given that acknowledgment and the Project’s

significant, plausible evidence, we remand to the district court

to address the Project’s challenge to Homeland Security’s

alleged pattern and practice of automatically extending H-2A

visas beyond the regulatory definition of temporary

employment. On remand, the district court is free to exercise

its discretion to permit further discovery “to ascertain the

contours of the precise policy at issue.” Venetian Casino

Resort, 530 F.3d at 928 (internal quotation mark omitted).

B

The Project separately sought to challenge the Labor

Department’s decision in the 2015 Rule to categorize herders

as the type of temporary positions permitted by the H-2A visa

program. In the Project’s view, the regulatory scheme grants

herders and their employers what is, in effect, a permanent

work visa to meet a permanent and enduring need for workers.

J.A. 494. More specifically, the Project argues that the Labor

Department’s newly promulgated regulation permitting “[t]he

period of need identified on the H-2A Application for

Temporary Employment Certification and job order for range

sheep or goat herding” to be “364 calendar days,” 20 C.F.R.

§ 655.215(b)(2) (emphasis added), is inconsistent with the

Immigration and Nationality Act and Labor’s own regulations.

That statute requires that H-2A visas be only for “temporary”

15

work, 8 U.S.C. § 1101(a)(15)(H)(ii)(a), which Labor has

interpreted to mean that the employer’s actual “need to fill the

position with a temporary worker * * * last no longer than one

year,” 20 C.F.R. § 655.103(d) (emphases added). Whatever a

certification application may identify, employers’ actual

“need” for herders, the Project insists, is anything but

temporary, id.

The district court dismissed this claim for failure to

exhaust, concluding that the challenge was not sufficiently

raised before the agency during the rulemaking process. We

again disagree with the district court.

To preserve an objection to agency rulemaking for judicial

review, courts generally require “the argument petitioner

advances” to have been raised before the agency; it is not

enough to have just asserted “the same general legal issue.”

Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013)

(internal quotation marks and alteration omitted). At its core,

that administrative exhaustion requirement “ensure[s that] an

agency has had an opportunity to consider the matter, make its

ruling, and state the reasons for its action” before a court

weighs in. Oklahoma Dep’t of Environmental Quality v. EPA,

740 F.3d 185, 192 (D.C. Cir. 2014) (internal quotation marks

omitted); see also Fertilizer Institute v. EPA, 935 F.2d 1303,

1313 (D.C. Cir. 1991) (“[T]his exhaustion requirement is

prudential and must be applied flexibly with an eye toward its

underlying purposes.”) (internal quotation marks omitted).

Administrative exhaustion also prevents litigants from

“‘sandbag[ging]’ agencies by withholding legal arguments for

tactical reasons until they reach the court of appeals.”

Oklahoma, 740 F.3d at 192 (internal quotation marks omitted).

Exhaustion, however, is not a license for agency passivity.

Agencies always bear the “affirmative burden” of

16

“examin[ing] a key assumption” when “promulgating and

explaining a non-arbitrary, non-capricious rule.” Oklahoma,

740 F.3d at 192. That means that an agency “must justify [a

key] assumption” underlying its regulation “even if no one

objects during the comment period.” Id. (internal quotation

marks omitted).

That “affirmative burden” to explain all of the “key

assumption[s]” embedded in its new regulations applies with

full force to Labor’s rules governing herders. Oklahoma, 740

F.3d at 192. That is because the 2015 Rule was the first time

the agency “establish[ed] standards that govern H-2A herder

occupations * * * through notice and comment rulemaking[,]”

80 Fed. Reg. at 62,959, and equipped its judgments with the

“force of law” that comes with notice-and-comment

rulemaking, United States v. Mead Corp., 533 U.S. 218, 227

(2001). Consequently, there is no prior regulatory source for

the foundational elements of the rule to which one could turn.

Determining that herder work is of a temporary or seasonal

nature was an indispensable prerequisite to Labor’s regulation.

By its terms, the H-2A visa program is confined to fulfilling

employers’ “temporary” or intermittent need for specific

workers. 8 U.S.C. § 1101(a)(15)(H)(ii)(a) (visa program

applies to workers who come to the United States “to perform

agricultural labor or services * * * of a temporary or seasonal

nature”); 20 C.F.R. § 655.103(d); see also 80 Fed. Reg. at

63,000; Oral Argument Tr. 41:8–41:9 (“[I]f they are permanent

workers then they shouldn’t get approval on a temporary

basis.”). The agency has no power under the statute—it is

actually forbidden—to include non-temporary or non-seasonal

workers in the H-2A program.

As a result, under the H-2A statutory scheme, it was

incumbent on Labor at the outset to explain why sheep, goat,

17

and free-range herding is the type of job for which employers

have only a temporary, rather than continuing or long-term,

need. As Labor’s own document name confesses, that

temporal predicate had to be built into the regulatory process

for issuing “Temporary Employment Certifications.”

Labor knew that. Its Notice of Proposed Rulemaking

“sought comment specifically on the issue of the temporary and

seasonal nature of herder work,” announced that it was

reconsidering the appropriate period of need for employers to

designate on their applications “to reflect more appropriately

[employers’] temporary or seasonal need as required by the

[Immigration and Nationality Act].” 80 Fed. Reg. at 62,999

(citing 80 Fed. Reg. 20,300 (April 15, 2015) (proposed rule)).

And Labor received just that: “Comments on Temporary

Need.” Id. Labor then responded with an answer in the final

regulation, permitting employers to designate their period of

need as 364 days, because that was determined to be consistent

with the statutory mandate. 80 Fed. Reg. at 63,000; see 20

C.F.R. § 655.215(b)(2). So Labor’s decision that the herder

positions qualify as the type of temporary work that is

statutorily eligible for H-2A visas was an essential component

of the 2015 Rule, fully explained and resolved by the agency.

That makes it fair game for judicial review.

But we need not rely only on Labor’s own affirmative

burden to preserve the issue. While not always models of

clarity, multiple comments in the administrative record

broached the question of whether herding properly qualifies as

temporary or seasonal work. As noted, “Comments on

Temporary Need” was its own sub-section in the final

rulemaking analysis published in the Federal Register. 80

Fed. Reg. at 62,999. A number of employers commented in

support of the 364-day provision, while freely admitting that

“they re-employ the same H-2A workers over the years.” Id.

18

Another commenter openly proposed that “foreign herders

should be permitted to stay in the United States longer than

typically allowed because of the unique skills of foreign

herders.” Id. at 62,961. Worker-Advocates for herders, on

the other hand, recommended “two certification periods” in

response to the proposed regulation that “requires that the [job]

order be no more than 364 days but does not otherwise limit

the [job] application.” J.A. 804; see also id. (“A nine month

certification for an open range herder would be sufficient[.]”);

id. (“The Department should create distinct positions at

different times of the year[.]”); 80 Fed. Reg. at 62,999

(Worker-Advocates favored “two separate certification

periods” for the birthing and open range season). The

Worker-Advocates offered a substantial explanation of why

two shorter-length certifications would be more consistent with

the nature of herders’ work. J.A. 804.

By far, the most telling evidence that the challenge was

properly before the agency is Labor’s own two-fold

justification for its 364-day temporary-need provision. First,

Labor explained that the statute neither “define[s] ‘temporary’

work” nor “indicate[s] how long a position may last and still

qualify.” 80 Fed. Reg. at 63,000. Neither does legislative

history speak to the question. Id. On that basis, Labor

concluded that “neither the statute nor [Homeland Security’s

and Labor’s] regulations proscribe the 364-day period of need”

adopted in the 2015 Rule. Id.

Second, Labor reasoned that “decades [of] unique history

and experience of sheep herding * * * support the 364-day

period of need for sheep ranchers.” 80 Fed. Reg. at 63,000

(“We see no reason to rescind our reliance on this aspect of

these jobs to shorten the period of need.”). The administrative

record itself accordingly bears out that Labor had a “fair

opportunity” to review its interpretation of temporary need, and

19

did in fact do so, “in the administrative forum before [it was]

rais[ed] * * * in the judicial one.” Nuclear Energy Inst., Inc.

v. EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004).

Sandbagging is not of concern either. Labor has long

been and remains fully cognizant of the inconsistent treatment

accorded to herders in contrast to all other H-2A workers. For

instance, in a 2001 Field Memorandum issued by the agency

regarding the Temporary Labor Certification of Sheepherders

and Goatherders, Labor admitted that herders are awarded H-

2A status “irrespective of the fact that most sheepherding jobs

are neither temporary nor seasonal in nature.” J.A. 884

(“Under INS procedures, a nonimmigrant foreign worker is

permitted entry into the U.S. for a cumulative period not to

exceed three years for sheepherder positions certified by DOL

under its procedures.”).

In light of the comments received, the analysis undertaken

by Labor, the inherent necessity to address “temporary” need

as an elemental component of the rulemaking and Labor’s

statutory authorization to act, and Labor’s express justification

of this aspect of its final rule, the Project’s challenge to Labor’s

decision that herding positions qualify as temporary

employment “was expressly addressed by [the agency] and is

properly before the court.” NRDC v. EPA, 755 F.3d 1010,

1023 (D.C. Cir. 2014) (citing Appalachian Power Co. v. EPA,

135 F.3d 791, 818 (D.C. Cir. 1998)). For that reason, we

reverse the district court’s dismissal of this claim and remand

for resolution of its merits.

C

In the 2015 Rule, the Department of Labor also solicited

comments on and promulgated a new minimum wage for

herders. In doing so, the final rule estimated that herders work

20

48 hours per week and directed that, by 2018, herders must be

paid $7.25 per hour. 80 Fed. Reg. at 63,026. For the two

preceding years, however, Labor allowed employers to

gradually adjust to the new pay rate. Labor set the minimum

wage for 2016 at $5.80 (which is 80% of the $7.25 rate) and

increased the wage for 2017 to $6.65 (which is 90% of the

$7.25 rate). In addition, the base hourly wage is adjusted

annually in accordance with the Employment Cost Index,

which is “a quarterly measure of the change in the price of

labor” as calculated by the Labor Department. 5 Based on

those numbers, the monthly wage for herders in 2016 came out

to $1,206. Id.

The Project argues that Labor acted arbitrarily in setting

the new minimum wage because both the number of work

hours per week and the hourly rate it chose were unreasonably

low. Our review of such claims, though, is “narrow,” and we

cannot “substitute [our] judgment for that of the agency.”

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto

Ins. Co., 463 U.S. 29, 43 (1983). We ask only whether Labor

“examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action including a rational connection

between the facts found and the choice made.” Id. Labor met

that mark.

1

In its Notice of Proposed Rulemaking, Labor proposed

basing its minimum-wage calculations on a 44-hour work

week. 80 Fed. Reg. at 20,309. That number was the mid-

5

John W. Ruser, The Employment Cost Index: What is it?,

Monthly Labor Review (Sept. 1, 2001), available at

https://www.bls.gov/opub/mlr/2001/09/art1full.pdf; see also 80 Fed.

Reg. at 62,993 n.37.

21

point between the 40-hour week proposed by employers and

the 48-hour week advanced by Edward Tuddenham, an

attorney who had represented H-2A herders. Id. Tuddenham

calculated a 48-hour week by averaging work-hour estimates

from 192 temporary certification applications submitted by

ranchers to the Department of Labor during the H-2A

petitioning process. 80 Fed. Reg. at 62,995.

In the final rule, Labor adopted 48 hours as the appropriate

measure of weekly work. 80 Fed. Reg. at 62,995. Labor

reasoned that the 48-hour estimate was based on “the most

diverse data set available” since it was “the only data source

identified by any commenter that includes data collected across

States.” Id. (internal quotation marks omitted).

The Project launches a two-prong attack on Labor’s

choice, criticizing both its reliance on exclusively employer-

reported data and its rejection of data from a 2010 survey of

Colorado-based herders conducted by a workers’ advocacy

organization, in which approximately 60% of the workers

stated that they worked more than 80 hours per week. Both

criticisms fall short of demonstrating arbitrary, capricious, or

unreasoned decisionmaking.

To start, Labor recognized up front that its work-hour

estimate would “necessarily be imprecise” because herding

employers had long been exempted from relevant

recordkeeping requirements. 80 Fed. Reg. at 62,995. In

addition, the nature of the work meant that the number of hours

varied greatly throughout the year depending in large part on

whether herders were working on the ranch or roaming with

the herd on the range. Labor also opted against collecting its

own data because it would be “very difficult and resource-

intensive” due to the unique characteristics of herding, id. at

62,996, and in particular the fact that herders “spend[] extended

22

periods of time with grazing herds of sheep in isolated

mountainous terrain[,]” id. at 62,962 (internal quotation marks

omitted).

The mere fact that a “dataset was less than perfect,”

however, “does not amount to arbitrary decision-making.”

District Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 61 (D.C.

Cir. 2015); see also Chemical Mfrs. Ass’n v. EPA, 28 F.3d

1259, 1265 (D.C. Cir. 1994) (agency does not act arbitrarily

solely for using a model even when data “indicate[s] that it is

not a perfect fit”). So long as the agency “explained the

available evidence” and rationally connected the facts to the

choice made, it acted reasonably and its determination will be

upheld. New York v. EPA, 413 F.3d 3, 31 (D.C. Cir. 2005).

Labor did just that. Labor surveyed the information

available and concluded that the data from employers’

Temporary Employment Certification applications was “the

most comprehensive and detailed data source from which to

establish an hourly calculation.” 80 Fed. Reg. at 62,996.

Unlike other proposed numbers, the 48-hour estimate factored

in herding employers across America, was officially submitted

by employers to Labor on agency forms, and was also endorsed

by the Worker-Advocates’ Joint Comment. Id. at 62,995.

With respect to concerns that employers would underreport

hours in the hope of attracting more workers, Labor noted that

employers’ job postings already were required to warn

prospective employees that herders “must be available up to 24

hours per day, 7 days per week.” Id. at 62,996.

Labor likewise “adequately and reasonably justified its

decision not to consider” the Colorado survey of herders.

Association of Oil Pipe Lines v. FERC, 876 F.3d 336, 342

(D.C. Cir. 2017). While the agency recognized the herder

survey was “informative,” the agency ultimately concluded

23

that its numbers were not reliable because the data source was

“very limited,” covering only Colorado herders, and so was

“not representative of the industry as a whole.” 80 Fed. Reg.

at 62,996. Labor’s data showed that two States have more

than triple the number of sheep and goat herding employers as

Colorado, id. at 63,021, which is significant given that herding

needs vary based on terrain and climate. For those reasons,

Labor’s decision not to adopt data drawn from a single source

to establish a national standard falls within the bounds of

reasonableness. Labor adequately explained why it relied

instead on a comprehensive, nationwide set of employer-

reported data, and it sensibly addressed criticisms of the survey

head-on. The APA requires no more in this context.

2

The Project separately argues that, in adopting the federal

minimum wage of $7.25 per hour for herders, Labor arbitrarily

disregarded evidence showing that similarly situated domestic

workers receive a higher wage. The Project also contends that

Labor unlawfully prioritized employers’ interests over those of

the herders. Neither challenge succeeds. Labor thoroughly

examined the issue before it and settled on a minimum-wage

rate that would be attractive to domestic workers without

capsizing the herding industry as a whole.

The Immigration and Nationality Act charges the

Department of Labor with ensuring that “the wages and

working conditions” of United States workers will not be

“adversely affect[ed]” by the entry of H-2A workers who might

otherwise be employed at a lower cost. 8 U.S.C.

§ 1188(a)(1)(B). To that end, the Labor Department

calculated an “Adverse Effect Wage Rate” that identified a

minimum wage for H-2A workers that would not adversely

affect the market for domestic workers. With respect to

24

herders, Labor initially proposed tying the Adverse Effect

Wage Rate to the “combined hourly wage rate for field and

livestock workers from the [Farm Labor Survey] used for all

other H-2A occupations.” 80 Fed. Reg. at 62,987. At that

time, the Farm Labor Survey’s hourly wage ranged from $10

to $13, depending on the State. Id. at 63,049. That would

have created a threefold increase in the pay herders had been

receiving. Id.

Facing the prospect of wages “tripl[ing]” overnight,

herding employers, employer associations, State and local

government officials, and others with business interests in the

sheep industry submitted “hundreds” of comments attacking

the Farm Labor Survey rate, warning that adopting it would

“jeopardize the entire herding industry.” 80 Fed. Reg. at

62,988. The majority of the criticisms fell into two categories.

First, many argued that the Farm Labor Survey was not an

appropriate metric due to herding’s unique characteristics.

Employers contended that livestock worker positions and

herders were not analogous because, unlike livestock and other

H-2A workers, employers paid for herders’ “food, housing,

work supplies, and protective clothing, and transportation.”

80 Fed. Reg. at 62,988; see also id. at 62,989 (Farmworker

positions “pay by the hour, and do not provide housing or food,

making those rates of pay completely inapposite to the range

production of livestock.”). In addition, employers suggested

that the intensity of work varied more for herders because they

were not necessarily “engage[d] in productive labor at all times

while on the range[.]” Id. at 62,988.

Second, the industry pleaded that it was economically

unable to absorb the large and sudden increase in wages

proposed by Labor. Employers submitted extensive financial

statements and analyses asserting that adoption of the wage

25

increase would lead to downsizing or closed operations. See

80 Fed. Reg. at 62,988 (214 employers reported that they

would “downsize” or “shut down operations”; an employer

association represented that the wage increase would result in

an “80 percent reduction in profitability”). Employers also

said that, because of rigorous competition in the global market,

they would be hard-pressed to pass on cost increases to

consumers. These consequences, they continued, would not

just impact employers, but would also create “multiplier effects

in related industries,” such as “lamb processors, wool

warehouses, textile mills, trucking and feed companies,

veterinarians, and fencing businesses.” Id. (internal quotation

marks omitted).

On the other side of the equation, the “few comments” in

favor of the Farm Labor Survey rate were “undetailed and

expressed only general support.” 80 Fed. Reg. at 62,990.

The most relevant and specific support contradicted the

industry statements, explaining that current farm and ranch

workers, who are covered by Farm Labor Survey wages, “may

also perform work that is closely and directly related to the

production of livestock” undertaken by herders. Id.

Although Worker-Advocates for the herders largely supported

the Farm Labor Survey wage, they did not reject outright the

federal-minimum-wage measure that Labor ultimately

adopted. The Worker-Advocates’ Joint Comment on the

proposed rule acknowledged that the federal minimum wage of

$7.25 was “substantially higher than the [current] herder

minimum wage.” Id.

After studying the comments and evaluating alternative

approaches, Labor’s final rule chose as the Adverse Effect

Wage Rate the federal minimum wage of $7.25 per hour, rather

than a rate based on the Farm Labor Survey. 80 Fed Reg. at

62,987. But Labor made explicit that, under the regulation,

26

the federal minimum wage of $7.25 per hour just established a

wage floor. 20 C.F.R. § 655.211(a). Employers were still

required to pay the highest of the monthly Adverse Effect

Wage Rate, an agreed-upon collective bargaining wage, or the

minimum wage established by applicable state law or judicial

action. 80 Fed. Reg. at 62,987.

Labor reasoned that tying the baseline Adverse Effect

Wage Rate to the federal minimum wage fulfilled its statutory

mandate to protect United States workers because, if the higher

Farm Labor Survey rate had been adopted, it would have

“caus[ed] a substantial number of herding employers to close

or significantly downsize their operations—leaving fewer

herding jobs available to U.S. workers.” 80 Fed. Reg. at

62,990. Labor also emphasized that three of the four Mendoza

plaintiffs had attested that they would return to herding if

offered the federal minimum wage. 80 Fed. Reg. at 62,994.

More to the point, Labor also presented evidence that, by

the time the two-year transitional period to the full minimum

wage was completed in 2018, herders across the country would

be earning a monthly wage almost on par with—or within one

to two hundred dollars of—the wage paid in States like

California, Oregon, and Hawaii, that have historically set high

minimum wages for herders under state law. Compare 80

Fed. Reg. at 63,026 (monthly wage in 2018 nationwide under

the federal minimum wage will be $1,568), with 80 Fed. Reg.

at 63,024 (2018 monthly wage in Oregon will be $1,679, in

Hawaii will likely be $1,422.52, and in California will be equal

to or more than $1,777.98).

The record also shows that Labor did not just adopt

industry’s preferred outcome hook, line, and sinker. Labor

flatly rejected the employers’ proposal to preserve the same

wage rates set by the 2011 Guidance Letter, choosing instead

27

to impose a “significant wage increase on the industry” by

adopting the federal minimum wage. 80 Fed. Reg. at 62,991.

Labor explained that an increase was necessary because it

“would be unreasonable to conclude that wages [were] without

any influence on U.S. worker availability.” Id. at 62,992. As

Labor explained, compensation needed to “rise to attract more

workers where employers are experiencing a shortage of

available [domestic] workers * * *.” Id. at 62,992; see also id.

at 62,994 (rejecting the employers’ position because it was

“concerned that continued reliance on the [Guidance Letter]

wages, even in indexed form, would be inconsistent with

[Labor’s] obligation to protect against adverse effects on U.S.

workers”).

The Project also expressed concern that paying herders

lower wages would incentivize employers to expand the

herders’ duties by squeezing unrelated activities into “range”

work, just to take advantage of lower costs, harming ranch

workers in the process. Project Br. 55. But Labor reasonably

addressed that concern, explaining that regulations separately

limit the “duties” herders can perform when working at the

ranch, making it less likely they can take over ranch workers’

tasks. In addition, herders are required to spend more than

half of their time away from the ranch “on the range.” 80 Fed.

Reg. at 62,991. Put simply, Labor concluded that the newly

imposed wage rate would not adversely affect ranch workers

because “ranch hands can perform a much broader array of

work duties,” so their positions were insulated from the effects

of herding wages. Id.

At the end of the day, the question before this court is not

whether Labor adopted the best wage possible. It is only

whether Labor’s selection of the federal minimum wage falls

within the broad realm of reason, and whether Labor

sufficiently explained the basis for its judgment. Labor’s

28

decision crosses that threshold. The agency examined the data

before it, considered alternatives in light of the comments

received and its statutory mandate, and offered reasoned

explanations for both its conclusion and its rejection of viable

alternatives. Because the Department of Labor has “explained

its logic and the policies underlying its choices, we have no

basis for second-guessing its reasonable judgments.” North

America’s Bldg. Trades Unions v. OSHA, 878 F.3d 271, 303

(D.C. Cir. 2017). On that basis, we affirm the district court’s

judgment upholding the 2015 Rule’s minimum-wage

requirement as neither arbitrary nor capricious.

D

Before closing the gate on this case, we must address the

Project’s request for a declaratory judgment proclaiming that

the Department of Labor’s 2011 Training and Employment

Guidance Letter for sheep and goat herders is substantively

invalid. Because that Guidance Letter has already been

vacated, the district court dismissed that claim for lack of

Article III standing. We agree that the court lacked

jurisdiction over that claim.

An indispensable component of federal court jurisdiction

in every case is that the plaintiff has Article III standing.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To

satisfy that constitutional standing requirement, a plaintiff must

establish a concrete and particularized invasion of a legally

protected interest that both is traceable to the defendant’s

challenged action and is “‘likely’ * * * [to] be ‘redressed by a

favorable decision.’” Id. at 560–561 (citation omitted).

When the injury is caused by a third party not involved in the

litigation, the plaintiff must establish that a favorable judicial

decision would cause “a significant increase in the likelihood”

that she would obtain “relief” for “the injury suffered.” Utah

29

v. Evans, 536 U.S. 452, 464 (2002); see also Lichoulas v.

FERC, 606 F.3d 769, 775 (D.C. Cir. 2010) (holding that a

judicial decision reversing an agency’s action would

“significantly increase the likelihood” that the plaintiff would

prevail in a separate court action against a different defendant).

The Project argues that its challenge to the 2011 Guidance

Letter would strengthen its hand in state common-law quasi-

contract, unjust enrichment, and quantum meruit claims that

the Project has brought, on behalf of individual herders, against

their private employers. Second Am. Compl. ¶¶ 117–126.

More specifically, the Project claims that the wage terms in

their employment contracts, which were based on the then-in-

force 2011 Guidance Letter, should not be enforceable because

the Guidance Letter’s wage rate was substantively

unreasonable. As a result, the Project claims, the herders are

owed back pay or restitution. 6

For purposes of standing, the Project has adequately

alleged an injury-in-fact in the form of unlawfully low wages.

Also, that injury is readily traceable to the wage rate set by the

Department of Labor in its 2011 Guidance Letter. Where the

Project runs into standing trouble is Article III’s requirement

that the injury be redressable by the court’s judgment. The

Project argues that “a judicial finding that [the Department of

Labor’s] implementation of the 2011 Rule violated the APA”

will buttress their claims for back pay in the separate common-

law litigation. Project Br. 56.

The fly in the Project’s ointment is that this Court has

already held the 2011 Guidance Letter to be procedurally

6

These claims were transferred to the United States District

Court for the District of Colorado. Hispanic Affairs Project v.

Perez, No. 15-1785 (D. Colo. April 7, 2017), ECF No. 20.

30

invalid under the APA. See Mendoza, 754 F.3d at 1025 (“The

[Guidance Letter] [is a] legislative rule[] and the Department

of Labor violated the Administrative Procedure Act by

promulgating [it] without providing public notice and an

opportunity for comment.”). As a result, the 2011 Guidance

Letter was vacated on November 16, 2015. See ORDER,

Mendoza v. Perez, No. 11-1790 (D.D.C. Oct. 31, 2014), ECF

No. 54 at 1; 80 Fed. Reg. 62,958 (Oct. 16, 2015). That means

the 2011 Guidance Letter is already of no legal force or effect.

Vacating again what has already been vacated before is not

likely to afford any additional redress for the Project’s or the

individual herders’ injuries at the hands of third-party

employers. To the extent the Project believes that invalidation

of the 2011 Guidance Letter will strengthen their argument in

other litigation that the prior wage rates were substantively

unreasonable, this court has already held that a court’s

procedural invalidation of a regulation can support a claim for

restitution. See Frederic County Fruit Growers Ass’n v.

Martin, 968 F.2d 1265, 1273 (D.C. Cir. 1992) (a claim for

restitution “can rest solely on the invalidation of a regulation

on a procedural, as opposed to a substantive, ground.”); id.

(listing cases where restitution was ordered after a rate increase

was found procedurally invalid). Because this court has

already ruled the 2011 Guidance Letter to be invalid and the

prior wage rates have already been vacated, the Project fails to

explain how another ruling about the Letter’s invalidity will

“significantly increase the likelihood” that it “prevail[s] in [its

private contract] challenges and therefore make[s] it more

likely that [the herders] will regain [backpay]” from the third-

party employers. Lichoulas, 606 F.3d at 775 (emphasis

added). Lacking jurisdiction to hear this claim, we dismiss it.

* * * * *

31

For the foregoing reasons, we reverse the district court’s

holdings that (i) the Project had failed to timely preserve its

claim against the Department of Homeland Security’s alleged

policy or practice of routinely extending “temporary” visas for

lengthy periods, and (ii) the Project waived its challenge to the

Department of Labor’s 364-day certification regulation. We

remand those claims for further proceedings consistent with

this opinion. As to the remaining issues raised on appeal, we

affirm the district court’s judgment of dismissal.

So ordered.