UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED FARM WORKERS et al., : : Plaintiffs, : Civil Action No.: 09-0062 (RMU) : v. : Document No.: 2 : ELAINE L. CHAO, : in her official capacity as Secretary of the : U.S. Department of Labor et al., : : Defendants. :

MEMORANDUM OPINION

DENYING THE PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. INTRODUCTION

This case is before the court on the plaintiffs’ motion for a temporary restraining order

(“TRO”) and preliminary injunction. The plaintiffs, two farm workers’ unions and eight

individual farm workers, ask the court to postpone the effective date of a Final Rule announced

by the Department of Labor (“DOL”) on December 18, 2008. Without court intervention the

Final Rule will become effective on January 17, 2009. Because the plaintiffs have failed to

make a showing of likely, imminent and irreparable harm, the court denies the plaintiffs’ motion.

II. FACTUAL & PROCEDURAL BACKGROUND

Plaintiffs United Farm Workers and Pineros y Campesinos Unidos del Noroeste

(“PCUN”) are farm workers’ unions that advocate for and promote the employment rights of

farm workers. Compl. ¶ 4-5. The individual plaintiffs comprise two distinct groups of farm workers: U.S. citizens and non-citizens who hold H-2A “guestworker” visas.1 Id. ¶¶ 6-14. The

defendants are the DOL and the Department of Homeland Security and their respective

Secretaries.

The DOL is charged with overseeing the H-2A visa program,

, and it

issues regulations to carry out this mandate, see

. On December 18,

2008, the DOL announced the Final Rule modifying and updating its regulations with regard to

domestic and H-2A farm workers. See 73 Fed. Reg. at 77110-239. The plaintiffs contest the

legality of certain provisions, specifically the attestation process for H-2A applications,2 Pls.’

Mot. at 6-11; the formula for determining the “adverse effect wage rate,”3 Pls.’ Mot. at 11-23;

the change in the “50% Rule,”4 Pls.’ Mot. at 24-26; the possibility of wage discrimination

1 The H-2A visa program extends temporary visas to nonimmigrant foreign workers who “hav[e] a residence in a foreign country which [they] ha[ve] no intention of abandoning [and] who [are] coming [] to the United States to perform agricultural labor or services . . . of a temporary or seasonal nature.”

(a)(15)(H)(ii)(a). 2 The plaintiffs argue that the attestation process violates the H-2A governing statute, 8 U.S.C. 188(a)(1)(A). Pls.’ Mot. at 6-11; Defs.’ Opp’n at 14-21. 3 Employers must pay farm workers “at least the adverse effect wage rate . . . the prevailing hourly wage rate, or the legal federal or State minimum wage rate, whichever is highest.”

(b)(9)(i). Under the current regulations the DOL has calculated the adverse effect wage rate using the United States Department of Agriculture Farm Labor Survey. Defs.’ Opp’n at 7. The new regulations would utilize the Occupational Employment Statistics Program data.

. 4

(c)(3)(B)(i) establishes that “the employer will provide employment to any qualified worker who applies to the employer until 50 percent of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed.” Under the new regulations employers would only be required to hire qualified U.S. workers within the first 30 days after the first date the employer requires the services of H-2A workers.

- 15.

2 against U.S. workers,5 Pls.’ Mot. at 23-24; the modification of the housing inspection timeline,6

Pls.’ Mot. at 32-34; the change in recruitment requirements,7 Pls.’ Mot. at 28-32; and the

alteration in the transportation reimbursement language,8 Pls.’ Mot. at 34-38. The plaintiffs filed

a complaint and a motion for a TRO and preliminary injunction on January 12, 2009. The court

turns now to the plaintiffs’ motion.

III. ANALYSIS

A. Legal Standard for Injunctive Relief

This court may issue interim injunctive relief only when the movant demonstrates “[1]

that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the

absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an

injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,

,

5 The plaintiffs argue that, under the new regulation, some U.S. workers may make less than their H-2A counterparts. Pls. Mot. at 24 6 Currently inspections of housing for farm workers must be completed pre-occupancy. Defs.’ Opp’n at 37. The new regulations allow for inspections to occur post-occupancy. Id. at 38. 7 Employers must engage in active recruitment of U.S. workers up until the time that H-2A “workers have departed for the employer’s place of employment.”

(b). The employer’s recruitment efforts should be geographically relevant and meet or exceed the efforts by that employer to recruit H-2A workers.

§§ 655.100(b), 655.103(f), 655.105(a). The plaintiffs aver that the new regulations will narrow the scope and enforceability of an employer’s recruitment efforts. Pls.’ Mot. at 29-30. 8 Currently employers must reimburse a H-2A worker his or her transportation costs “from the place from which the worker has come” if the worker works half the season, and must reimburse an H-2A worker his or her inbound and outbound costs if the worker works the full season.

(b)(5)(i). In the past the phrase “the place from which the worker has come” has been interpreted to mean that worker’s home. Pls.’ Mot. at 34-35. The new regulations will interpret that phrase to mean a U.S. Consulate or port of entry rather than the worker’s home. 73 Fed. Reg. at 77151.

3 374 (2008) (citing Munaf v. Geren,

(2008)). It is particularly important

for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler,

(1992) (per curiam). Indeed, absent a “substantial indication” of likely success

on the merits, “there would be no justification for the court’s intrusion into the ordinary

processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union

Admin.,

(D.D.C. 1999) (internal quotation omitted).

Moreover, the other salient factor in the injunctive relief analysis is irreparable injury. A

movant must “demonstrate that irreparable injury is likely in the absence of an injunction.”

Winter,

(citing Los Angeles v. Lyons,

(1983)). Indeed, if a

party fails to make a sufficient showing of irreparable injury, the court may deny the motion for

injunctive relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift

Supervision,

, 747 (D.C. Cir. 1986) (stating that because the movant

“has made no showing of irreparable injury here, that alone is sufficient for us to conclude that

the district court did not abuse its discretion by rejecting [the movant’s] request. We thus need

not reach the district court’s consideration of the remaining factors relevant to the issuance of a

preliminary injunction”). The plaintiffs here assert likely economic loss as grounds for the

irreparable harm they allege. Pls. Mot. at 38-41. It is well-settled that economic loss alone will

rarely constitute irreparable harm. Wis. Gas Co. v. Fed. Energy Regulatory Comm=n,

, 674 (D.C. Cir. 1985); Barton v. D.C.,

(D.D.C. 2001) (Urbina, J.).

In the business context, however, the well-settled exception to the rule is that if the potential

harm could threaten the very existence of the business, a court may deem such harm irreparable.

E.g., Wis. Gas Co., 758 F.2d at 674. Similarly, while an employer’s discharge or constructive

4 discharge of an employee will rarely constitute irreparable harm, courts routinely make

exceptions when an employee is so poor that if she stopped working, the consequences would be

severe. For instance, in Hamlyn v. Rock Island County Metro. Mass Transit Dist., the court held

that:

The rule is clear: monetary loss does not constitute an irreparable injury because a successful plaintiff can be adequately compensated at the conclusion of the litigation. There are four possible exceptions to this rule: (1) the plaintiff is so poor that he would be harmed in the interim by the loss of the monetary benefits; (2) the plaintiff would be unable to finance his lawsuit without the money he wishes to recover; (3) the damages would be unobtainable from the defendant because it will be insolvent prior to the final judgment; and (4) the nature of the plaintiffs= loss may make damages very difficult to calculate.

, 162 (C.D. Ill. 1997) (citing Roland Mach. Co. v. Dresser Indus., Inc.,

(7th Cir. 1994)) (internal citations omitted); see also Chapman v. South Buffalo Ry.

Co.,

(W.D.N.Y. 1999); Williams v. State Univ. of N.Y.,

(E.D.N.Y. 1986) (explaining that “the plaintiff must quite literally find himself being

forced into the streets or facing the spectre of bankruptcy before a court can enter a finding of

irreparable harm”).

Provided the plaintiff demonstrates a likelihood of success on the merits and of

irreparable injury, the court “must balance the competing claims of injury and must consider the

effect on each party of the granting or withholding of the requested relief.” Amoco Prod. Co. v.

Gambell,

(1987). Finally, “courts of equity should pay particular regard for

the public consequences in employing the extraordinary remedy of injunction.” Weinberger v.

Romero-Barcelo,

(1982).

As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v.

Armstrong,

(1997). The Supreme Court has observed “that a preliminary

5 injunction is an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.”

Therefore, although the trial

court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted

lightly. In addition, any injunction that the court issues must be carefully circumscribed and

“tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter,

(D.C. Cir. 1990).

B. Because the Plaintiffs Fail to Demonstrate Irreparable Injury the Court Denies the Plaintiffs’ Motion for a TRO

The plaintiffs allege that, if the new regulations go into effect on January 17, 2009, they

will be irreparably harmed and cite to declarations prepared by several farm workers, some of

whom are individual plaintiffs in this case. Pls.’ Mot. at 38-41. The defendants retort that the

plaintiffs have shown only “speculative and conjectural” injury. Defs.’ Opp’n at 40.

For example, plaintiff Luan Kongsaen, whose H-2A petition is pending, stated that he has

been told that his wages may be cut from $9.70 per hour to $7.18 per hour. Pls.’ Mot., Ex. 12

(“Kongsaen Decl.”) ¶ 6, 9-10. Alberto Perez-Elotlan declared that he understands that the new

regulations would decrease his wages and that he will “probably not [have] enough money [] to

send all of [his] children to school.” Pls.’ Mot., Ex. 27 (“Perez-Elotlan Decl.”) ¶ 4. Alejandro

Martinez-LoBacto claimed that he has “been informed that new regulations will substantially

lower [his wages, and he has] been told that [his] hourly wage will drop.” Pls.’ Mot., Ex. 24

(“Martinez-LoBacto Decl.”) ¶ 11. Hector Manuel Zanella-Alvarez stated that he has “been told

that [his] hourly wage will drop . . . [and he is] not sure that it will be possible for [his family] to

pay [] rent, or to pay for basic necessities.” Pls.’ Mot., Ex. 28 (“Zanella-Alvarez Decl.”) ¶¶ 9-10.

Faylean Noles explained how he benefitted under the old regulations but did not extrapolate how

6 this would cause him imminent injury if the new rules were to go into effect. Pls.’ Mot., Ex. 29

(“Noles Decl.”) ¶¶ 6-7. The defendants attack the plaintiffs’ assertions of irreparable harm as

“speculative and conjectural.” Defs.’ Opp’n at 40. The defendants further assert that the

statements made in many of the declarations are “conclusory.” Defs.’ Opp’n at 44.

The law in this circuit is clear that the alleged irreparable injury “must be both certain

and great; it must be actual and not theoretical.” Wis. Gas Co. v. Fed. Energy Regulatory

Comm’n,

, 674 (D.C. Cir. 1985) (per curiam). The plaintiffs must show more than a

possibility of injury; they must “demonstrate that irreparable injury is likely in the absence of an

injunction.” Winter,

(internal citations omitted) (emphasis in original). Given

the uncertainty of the declarants’ statements and the indefinite language in which those

sentiments are presented, the court cannot hold that these declarants are likely to suffer an actual

and imminent harm. Id.; Wis. Gas Co., 758 F.2d at 674.

The plaintiffs also provide a declaration from an attorney with the Northwest Justice

Program who represents farm workers and explained how the current certification process in

reviewing employer H-2A applications has been successful. Pls.’ Mot., Ex. 5 (“Besso Decl.”) ¶¶

2-3. She went on to state that, under the new regulations, “it would appear” that “consideration

of information about local wages and working conditions from the state employment agency”

would be precluded. Id. ¶ 4. Besso stated simply that “it would appear” that information she

believes to be relevant and important may be precluded from review. Id. She gives no concrete

foundation or examples to support this conclusion. See generally id. Injunctive relief will not be

granted “against something merely feared as liable to occur at some indefinite time in the

future.” State of Conn. v. Com. of Mass.,

(1931). Declarations from the

7 National Vice President of United Farm Workers, Pls.’ Mot., Ex. 30 (“Nicholson Decl.”), and

President of PCUN, Pls.’ Mot., Ex. 31 (“Ramirez Decl.”) use similarly indeterminate language.9

Ramirez stated, “we anticipate that usage by employers of the H-2A program will increase

substantially under the new regulations . . . [and] we believe that employers will bring in

increasing numbers of [H-2A workers] at low wages.” Ramirez Decl. ¶ 4.a. (emphasis added).

He went on to aver that “domestic workers who may soon be employed by H-2A employers[]

could suffer a drastic and immediate reduction in wages.” Id. ¶ 4.b. (emphasis added).

Nicholson’s statements are even more speculative: “[u]nder the new regulations employer can

choose to pay [a wage lower than the average hourly wage for that area], the Level I wage,” and

“[a]ssuming many employers will choose to pay the Level I wage, our members in this area will

suffer drastic wage cuts of roughly 13%.” Nicholson Decl. ¶ 3.a. (emphasis added).

The plaintiffs have not presented sufficient evidence that any plaintiff is likely to suffer

immediate decreased wages, increased transportation costs or loss of employment. Based on the

speculative injuries alleged by the plaintiffs the court cannot conclude that the plaintiffs have

met the “high standard for irreparable injury” sufficient to warrant the extraordinary relief of a

TRO. Chaplaincy of Full Gospel Churches v. England,

(D.C. Cir. 2006). As

such, the court need not address the other factors of injunctive relief. CityFed Fin. Corp., 58

F.3d at 747 (stating that because the movant did not establish irreparable injury the court need

not reach the other factors relevant to the issue of injunctive relief).

9 Although the defendants do not address these three declarations in their opposition, the court finds them noteworthy.

8 IV. CONCLUSION

For the foregoing reasons, the court denies the plaintiff’s motion for a TRO and

preliminary injunction. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 15th day of January 2009.

RICARDO M. URBINA United States District Judge

9