United States District Court, D. Maryland
PABLO GONZALEZ-AVILES, ET AL.
THOMAS E. PEREZ, ET AL.
Frederick Motz United States District Judge
two individuals who entered the United States on H-2B guest
worker visas in 2013 to work for Outside Unlimited, Inc.,
have brought this action against Thomas Perez, in his
official capacity as United States Secretary of Labor, Portia
Wu, in her official capacity as Assistant Secretary,
Employment and Training Administration, United States
Department of Labor, and the so called Employer Defendants,
consisting of businesses that employed United States and
foreign workers pursuant to approved H-2B paper
certifications in Maryland during 2013. Defendants have filed
motions to dismiss. The motions will be granted.
case arises from a decision of the Department of Labor's
Board of Alien Labor Certification Appeals ("the
BALCA"), holding that the Department of Labor lacks the
authority to issue supplemental prevailing wage
determinations in cases where the Department already approved
labor certification applications. Plaintiffs claim that (1)
the Department should not have allowed the Employer
Defendants to pursue challenges to SPWD determinations to
BALCA, (2) BALCA's decision was arbitrary, capricious and
contrary to law in violation of the APA, (3) the
Department's actions in unreasonably delaying issuance of
a decision with respect to a Declaratory Order proposed by
the Department violated the Administrative Procedure Act,
("APA"), and (4) a declaration that the SPWD wages
are lawfully required and due and payable. Plaintiffs have
joined the Employer Defendants under Fed.R.Civ.P. 19 on the
ground that they cannot obtain complete release in the
absence of the Employer Defendants and that the Defendant
Employer's interest may, as a practical matter be
impaired by the relief plaintiffs seek against DOL.
claims fail because plaintiffs have failed to identify a
final agency action. The BALCA decision does not represent a
"final decision" of the Department of Labor.
Indeed, the Department has contemplated issuing a
"Declaratory Order" reversing the
claims against the Employer Defendants likewise fail. They
have no standing to sue anybody other than Outside Unlimited,
Inc., their employer. Fed.R.Civ.P. 19 does not create a cause
of action against a party and allows joinder of persons only
against whom a plaintiff has a viable claim. See, e.g.
Viewc Carre Prop Owners, Residents & Associates v.
Brown, 875 F.2d 453, 457 (5th Cir. 1989); Becker v.
International Bhd. of Teamsters Local 120, 2011 U.S.
Dist. LEXIS 52424, @*6 (D. Minn. May 16, 2011). I reject the
view of the Ninth Circuit that parties can be joined under
Rule 19 when they have committed no wrong and are joined
solely so that plaintiffs can obtain complete relief. See
Lake Mohave Boat Owners Ass 'n v.
Nat'lParkServ., 78 F.3d 1360, 1369 (9th Cir. 1995);
E.E.O.C. v. Peabody W. Coal Co., 400 F.3d 774,
781-84 (9th Cir. 2005). Plaintiffs do not allege that any of
the defendants have acted unlawfully. They have only sought
to enjoin the Employer Defendants only on the ground that
absent their joinder, they could not obtain full relief.
separate order granting defendants' motion to dismiss is
being entered herewith.
There are other flaws in
plaintiffs' claims. Assuming that the BALCA decision does
constitute an "action" of the Department, it does
not "mark the 'consummation' of the agency's
decision making process" and does not constitute an
action "by which 'rights or obligations have been
Plaintiffs' claim that BALCA's decision was
"arbitrary and capricious" fails because plaintiffs
cannot establish their standing to assert the claim.
Plaintiffs were not parties to the case that resulted in the
BALCA decision. They allege that they have been injured by
the decision only by virtue of the fact that the Department
had stayed all their challenges to SPWD in response to the
BALCA decision. This constitutes an "independent
action" which prevents the injury claimed by plaintiffs
from being "fairly traceable" to the BALCO
decision. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992).
Plaintiffs' claim that the Department unreasonably
delayed issuing its Declaratory Order also fails. There is no
requirement that the Department issue the Order and that is
fatal to the claim. Norton v. Southern Utah Wilderness
Alliance, 542 U.S. 55, 64 (2004).
Plaintiffs' fourth and final claim fails because a
request for declaratory judgment must be premised upon an
"actual controversy" existing between the parties.
Here, there is no actual controversy between plaintiffs and
the Department because the Department has stated that it
agrees with plaintiffs' position ...