United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
Memorandum Opinion resolves a motion to supplement the
administrative record in connection with a suit challenging,
inter alia, the authority of two federal departments
- the Department of Labor and the Department of Homeland
Security - to issue jointly certain regulations pertaining to
the H-2B visa program (the "Program"). The Program
governs the temporary employment of nonimmigrant aliens.
are trade associations whose members rely on the Program to
obtain workers, as well as business entities that utilize the
Program. Id., ¶¶ 12-17. In particular,
they are Outdoor Amusement Business Association, Inc.;
Maryland State Showmen's Association, Inc.; The Small and
Seasonal Business Legal Center; Lasting Impressions Landscape
Contractors, Inc.; Three Seasons Landscape Contracting
Services, Inc.; and New Castle Lawn & Landscape, Inc.
They have sued the following defendants: the Department of
Homeland Security ("DHS"); the United States
Citizenship & Immigration Services ("USCIS"), a
component agency of DHS; the Department of Labor
("DOL"); the Employment & Training
Administration ("ETA"), a component agency of DOL;
and the Wage & Hour Division ("WHD"), another
component of DOL.
Second Amended Complaint (ECF 44, "SAC"), filed on
July 5, 2016, is the operative complaint. In the SAC,
plaintiffs outline the purpose of the Program, as follows,
ECF 44, ¶ 26:
Since 1952, the purpose of the temporary employment H visas,
including the H-2B program, has been to alleviate U.S. labor
shortages for temporary work and provide nonimmigrant alien
labor to fill those temporary or seasonal positions. The H-2B
program protects the interests of both U.S. non-agricultural
workers and employers, as well as the U.S. economy as a
whole, through the preservation of jobs, work opportunities,
and employers in the United States. The H-2B program is a
legally-authorized source of employees for difficult-to-fill
temporary positions, and supports the employment of countless
other U.S. workers whose jobs rely on the temporary work
performed by foreign workers.
SAC, which is over 40 pages in length, contains six counts.
In Count I, plaintiffs assert that certain rules and
regulations, discussed infra, exceed
defendants‘ statutory authority, citing 5 U.S.C.
§§ 558 and 706(2)(C). Count II challenges the
disputed regulations as arbitrary and capricious, citing 5
U.S.C. § 706(2)(A). In Count III, plaintiffs assert that
the regulations are unconstitutional and violate 5 U.S.C.
§ 706(2)(B). Count IV is titled "Compulsion of
Agency Action Unlawfully Withheld." It is predicated on
5 U.S.C. § 706(1). Count V is titled "Mandamus,
" pursuant to the Mandamus Act, 28 U.S.C. § 1361,
and the All Writs Act, 28 U.S.C. § 1651. Finally, Count
VI seeks a declaratory judgment, pursuant to the Declaratory
Judgment Act, 28 U.S.C. § 2201.
submitted notice of the filing of the administrative record,
which consists of almost 3, 800 pages. ECF 46. Thereafter,
defendants filed a "Notice of Filing of Corrected
Certified Index" (ECF 53), containing three corrections.
Plaintiffs subsequently filed a "Motion To Strike And
Correct Record Certification, Motion To Complete And
Supplement The Record, And Motion For Discovery" (ECF
60), supported by an amended memorandum of law (ECF 61- 1)
(collectively, "Motion" or "Motion to
Supplement"), and numerous exhibits. ECF 60-2 to ECF
60-19; ECF 61-2; ECF 61-4. Defendants oppose the Motion (ECF 69,
"Opposition"), supported by exhibits, docketed
collectively at ECF 69-1. Plaintiffs have replied (ECF 73,
"Reply"), supported by an exhibit. ECF
hearing is necessary to resolve the Motion to Supplement.
See Local Rule 105.6. For the reasons that follow, I
shall grant the Motion in part and deny it in part.
Factual and Procedural Summary
1952, as part of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1101 et seq.,
"Congress created the nonimmigrant H-2 visa category for
temporary agricultural and non-agricultural employment that
did not require advanced education, skills, or
training." ECF 44, ¶ 25. Thereafter, the
Immigration Reform and Control Act of 1986 "redesignated
the extant H-2 classification as the nonagricultural H-2B
visa category, and moved agricultural labor into a
newly-created H-2A category." Id. The H-2B visa
program permits U.S. employers to recruit and hire foreign
workers to fill temporary unskilled, non-agricultural
positions for which domestic workers cannot be located.
See 8 U.S.C. § 1101(a)(15)(H)(ii)(b); La.
Forestry Ass'n, Inc. v. Sec'y of Labor, 745 F.3d
653, 658 (3d Cir. 2014).
employee is defined as a nonimmigrant alien "having a
residence in a foreign country which he has no intention of
abandoning who is coming temporarily to the United States to
perform other temporary service or labor if unemployed
persons capable of performing such service or labor cannot be
found in this country…." 8 U.S.C. § 1101
(a)(15)(H)(ii)(b). The INA charges DHS with determining,
"upon petition of the importing employer, " whether
to grant an H-2B visa "after consultation with
appropriate agencies of Government." 8 U.S.C. §
1184(c)(1); see also ECF 46, ¶ 28.
to certain DHS labor certification regulations, issued in
2008, DHS asked DOL to determine whether (1) qualified
workers in the United States are available to fill an
employer‘s job and whether (2) the alien‘s
employment will adversely affect wages and working conditions
of similarly employed U.S. workers. 8 C.F.R. §
214.2(h)(6)(iii)(A). If, after reviewing an employer‘s
job offer and recruitment efforts, the Secretary of Labor
determines that U.S. workers are not available to fill the
jobs described in the employer‘s application and that
the offered terms of work will not adversely affect similarly
employed U.S. workers, DOL issues a "temporary labor
certification" that the employer must attach to the H-2B
visa petition it submits to DHS. 8 C.F.R. §§
214.2(h)(6)(iii)(C) and 214.2(h)(6)(iv)(A). No petition for
H-2B visas may be issued by DHS without an approved labor
certification from DOL. Id.
April 29, 2015, DHS and DOL jointly issued revised H-2B
regulations: the Temporary Non-Agricultural Employment of
H-2B Aliens in the United States, 80 Fed. Reg. 24, 042
(Apr. 29, 2015) ("Interim Final Rule"), and the
Wage Methodology for the Temporary
Non-Agricultural Employment H-2B Program, 80 Fed.
Reg. 24, 146 (Apr. 29, 2015) ("Final Rule"). ECF
44, ¶ 2. Collectively, I shall refer to these rules as
the "2015 Rules." Both the Interim Final Rule and
the Final Rule are in effect.
2015 Rules replace the prior H-2B regulations published on
December 19, 2008, at 73 Fed. Reg. 78, 020 ("2008 Final
Rule"). The 2008 Final Rule was regarded as
"vulnerable to challenges by employers in current and
future enforcement proceedings based on the ground that the
regulations…are void because DOL exceeded its
statutory authority in unilaterally issuing the 2008
rule." See 80 Fed. Reg. at 24, 048-49. Among
other things, various provisions of the 2008 Final Rule were
invalidated by the United States District Court for the
Eastern District of Pennsylvania in Comité de
Apoyo a los Trabajadores Agrícolas v. Solis, No.
09-240, 2010 WL 3431761 (E.D. Pa. Aug. 30, 2010).
See 80 Fed. Reg. at 24, 046.
contend that DHS and DOL violated the INA and the
Administrative Procedure Act ("APA"), codified in
various sections of 5 U.S.C., as well as the United States
Constitution, by jointly issuing certain regulations with
respect to the Program. ECF 44, ¶ 4; see also
SAC Count I (id, ¶ 94) and Count III
(id, ¶ 96). In particular, plaintiffs contend
that DHS has impermissibly "redelegate[d]" its
rulemaking authority to DOL by, inter alia, allowing
DOL to undertake the initial review of the visa program
applications. Id., ¶ 4; see also id,
¶ 35. Further, plaintiffs allege that, even if DHS has
authority to structure the Program as it has, including by
designating DOL as a consultant and relying on DOL‘s
expertise, the challenged rules are an unreasonable exercise
of that authority (Counts I-II of SAC). Id.,
contest the Interim Final Rule and the Final Rule. The rules
establish "the process by which employers obtain a
temporary labor certification from DOL for use in petitioning
DHS to employ a[n H-2B] nonimmigrant worker, " 80 Fed.
Reg. at 24, 042; "the methodology by which DOL
calculates the prevailing wages to be paid to H-2B workers
and U.S. workers recruited in connection with application for
temporary labor certification, " id. at 24,
146; and "enforcement procedures and remedies pursuant
to DHS‘s delegation of enforcement authority to
DOL." Id. at 24, 046.
the Interim Final Rule "expands the ability of U.S.
workers to become aware of the job opportunities in question
and to apply for opportunities in which they are
interested" and "requir[es] that U.S. workers in
corresponding employment receive the same wages and benefits
as the H-2B workers." See 80 Fed. Reg. at 24,
043. The regulations also provide additional protections to
H-2B workers (such as guaranteed minimum hours and
reimbursements for visa and transportation expenses) and to
whistleblowers. See Id. The Final Rule "set[s]
the methodology by which DOL calculates the prevailing wages
to be paid to H-2B workers and U.S. workers recruited in
connection with applications for temporary labor
certification." See 80 Fed. Reg. at
addition, plaintiffs challenge certain DHS regulations,
"collectively referred to and identified …as
DHS's Labor-Certification Regulations." ECF 44,
¶ 2; see also id., ¶ 34; 8 C.F.R. §
214.2(h)(6). The Labor-Certification Regulations, issued in
2008, "govern DHS‘s administration of the H-2B
program generally, including DOL‘s role in the
program." ECF 69 at 11.
to plaintiffs, the regulatory scheme is
"unworkable" (ECF 44, ¶ 8) and causes
unnecessary delay in visa processing. They assert that
"H-2B workers are now arriving weeks, and often months,
after employers‘ dates of need, " which has harmed
plaintiffs and/or their members‘ businesses.
Id., ¶ 8. Therefore, plaintiffs ask the Court
to enter an Order "enjoining the Defendants nationwide
from implementing the unlawful" Interim Final Rule, the
Final Rule, and the Labor-Certification Regulations.
Id., ¶ 115.
filed the administrate record on August 19, 2016. ECF 46. The
original certification accompanying the administrative record
was signed by William W. Thompson II, the Acting
Administrator of DOL‘s Office of Foreign Labor
Certification ("OFLC"). ECF 69-1 at 68. Mr.
Thompson "certif[ied] that the index…lists all
non-privileged documents that constitute the administrative
record underlying" the 2015 Rules. Id. The
index accompanying the record lists 18 entries dated between
2011 and 2015. Id. at 66-67.
administrative record consists of 3, 769 pages. It includes,
among other things, the 2015 Federal Register notices
adopting the Interim Final Rule; the 2011 H-2B Notice of
Proposed Rulemaking ("NPRM"); all timely,
non-duplicative comments received in response to the 2011
H-2B NPRM, because the 2015 Interim Final Rule was adopted
after considering all the comments received as to the 2011
H-2B NPRM, see 80 FR 24043, id. at 24049;
and the 2012 Federal Register notice adopting the 2012 H-2B
Rule. The administrative record also includes the 2015
Federal Register notice adopting the Final Rule; the 2013
Interim Final Wage Rule, which is the basis of the 2015 Final
Rule; and all timely, non-duplicative comments received in
response. However, the record does not contain materials
concerning DHS's 2008 Labor-Certification Regulations.
week after the filing, on August 24, 2016, counsel for
plaintiffs, R. Wayne Pierce, Esquire, contacted defense
counsel via email, beginning a series of exchanges in which
plaintiffs asserted flaws in the administrative record and
the certification of the record. Plaintiffs indicated that
they planned to seek to add unspecified "additional
documents" into the record. ECF 69-1 at 16. Defense
counsel responded the following day, asking counsel to
explain what documents he believed should be included in the
administrative record. Id. at 21.
August 26, 2016, plaintiffs‘ counsel replied, asserting
that the record certification was incomplete because it
failed to state explicitly that the index contained
"''considered‘" by the agencies
during the rulemaking process. Id. at 19. Defense
counsel responded on August 29, 2016, asking again what
documents plaintiffs believed should be in the record that
were not included. Id. at 25. Defendants also noted
that the record certification was virtually identical to that
used in Bayou Lawn & Landscape Services v. Johnson,
173 F.Supp.3d 1271 (N.D. Fla. 2016), which also
challenged the 2015 Rules, and in which plaintiff The Small
and Seasonal Business Legal Center was a party, and in
La. Forestry Ass'n v. Solis, 889 F.Supp.2d 711
(E.D. Pa. 2012), a case challenging a 2011 DOL regulation
regarding the H-2B visa program, in which plaintiffs‘
counsel participated. ECF 69-1 at 25; see also ECF
69 at 19. According to defendants, no party in either case
raised any issue with the certifications. ECF 69 at 19.
August 30, 2016, Mr. Pierce responded, alleging that
defendants were required to submit a certification that
established, among other things, that "the relevant
agency official" had "actually considered" the
record; it "is full or complete"; and it
"existed at the time of the decision." ECF 69-1 at
24. On August 31, 2016, defense counsel responded, noting
that they were "still waiting to hear from [Mr. Pierce]
what exactly [he] think[s] it is that should have been in the
record that was not." ECF 69-1 at 32. Defense counsel
also said that, "out of an interest in avoiding
unnecessary, wasteful motion practice, " if plaintiffs
agreed to "stipulate in writing to not filing
any motion to supplement the record to submit extra-record
evidence that is not otherwise subject to judicial notice,
" defendants would add additional language to the
certification to clarify that "this is the full and
complete record." Id. (underlining in
declined and, on September 13, 2016, they provided defendants
with a draft motion to strike and correct the record
certification. ECF 69-1 at 42. Then, on September 27, 2016,
defendants filed a "Corrected Certified Index",
which contains three corrections. ECF 53 at 1. First,
defendants corrected the title of item 7 of the index.
Id. at 1-2. Second, the index bifurcated entry 14
into two separate entries, numbers 14 and 15. Third, the
certification was revised to include language indicating that
for both DHS and DOL, the corrected index was the "true,
correct, and complete" record considered by the agencies
in jointly promulgating the 2015 Rules. Id. at 2.
The revised index is docketed at ECF 53-2 and contains 19
entries. The revised certification is located at ECF 53-1 and
consists of certifications by DOL and DHS.
certification, again signed by Mr. Thompson, indicates that
Mr. Thompson is employed as Acting Administrator of OFCL with
responsibility for "overall management of OFLC, "
including during the period when the 2015 Rules were
promulgated. ECF 53-1 at 1. The certification further
provides that "OFLC maintains the documents relevant to
these rules held in DOL‘s possession that make up part
of the administrative record for the [Interim Final Rule] and
Final Rule, " including "items 1-13 and 15-19 of
the attached index, " and that "to the best
of" Mr. Thompson‘s knowledge, "these
documents are a true and correct copy of the original
document [sic] located in the files of DOL."
Id. Finally, Mr. Thompson certified that "to
the best of [his] knowledge and belief" the
"materials listed in the attached index are a true,
correct, and complete administrative record in this action,
and that this index lists all non-privileged documents
considered by DOL in issuing the [Interim Final Rule] and
Final Rule." Id. at 2-3.
certification, signed by Denise M. Bailey, provides that Ms.
Bailey is a Records Specialist at DHS, responsible for the
Office of the Executive Secretary records, including at the
time that the 2015 Rules were promulgated. ECF 53-1 at 4. The
certification further states that Ms. Bailey is the
"custodian of the documents relevant to these rules held
in DHS‘s possession that make up part of the
administrative record for the IFR and Final Rule, "
including "item 14 of the attached index, " which
is, "to the best of [her] knowledge, " a "true
and correct copy of the original document located in the
files of DHS." Id. Finally, Ms. Bailey
certified that "to the best of [her] knowledge and
belief" the "materials listed in the attached index
are a true, correct, and complete administrative record in
this action, and that this index lists all non-privileged
documents considered by DHS in issuing the [Interim Final
Rule] and Final Rule." Id. at 4-5.
to defendants, on October 18, 2016, plaintiffs "for the
first time disclosed being in possession of some 17, 778
documents from DHS and others from DOL…alleging that
some or all of these 17, 778 documents must be part of the
administrative record." ECF 69 at 22; see also
ECF 69-1 at 60.
explain that on May 28, 2015, plaintiffs' counsel sent
substantively identical FOIA requests to USCIS and DOL
requesting copies of any documents pertaining to the
DHS's transfer of any H-2 or H-2B authority to DOL at any
time since 1952, as well as all statements of DOL rulemaking
or adjudicative authority. ECF 61-1 at 38; see also
ECF 60-14 (FOIA request to USCIS); ECF 60-15 (FOIA request to
DOL). In response, on October 2, 2015, DOL contended that all
of the documents requested could be viewed online and
included the DOL‘s news release discussing the 2015
Rules, the Interim Final Rule, and the Final Rule. ECF 60-16
(DOL's Response to FOIA Request).
on August 26, 2016, DHS responded to the FOIA request by
producing 17, 778 pages, consisting of, ECF 61-1 at 38:
15, 785 pages "released in part" (meaning the
entire page was redacted but for a notation of the claimed
1770 pages "released in their entirety" (meaning
that they were extensively redacted)
212 pages "with[eld]" for no stated reason 11 pages
referred to DHS "for their direct response to you"
See also ECF 60-16 (USCIS's Response to FOIA
Request). According to plaintiffs, DHS has not responded as
to the "missing" 11 pages. ECF 60-1 at 39.
November 4, 2017, plaintiffs filed the instant Motion.
Thereafter, defendants proposed that they would be willing to
provide the record relevant to the 2008 Labor-Certification
Regulations as a basis for resolving the outstanding record
dispute. ECF 69 at 22-23; ECF 63 at 1. According to
defendants, plaintiffs declined that offer. ECF 69 at 23.
Standard of Review
provides for judicial review of a final agency action.
See Roland v. United States Citizenship & Immigration
Servs., 850 F.3d 625, 629 n. 3 (4th Cir. 2017);
Friends of Back Bay v. U.S. Army Corps of
Eng'rs, 681 F.3d 581, 586 (4th Cir. 2012); Lee
v. U.S. Citizenship & Immigration Servs., 592 F.3d
612, 619 (4th Cir.2010); Ohio Valley Envtl. Coal v.
Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009). An
agency‘s regulations must be set aside and held
unlawful when they are "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law",
5 U.S.C. § 706(2)(A); when they are "contrary to
constitutional right, power, privilege, or immunity", 5
U.S.C. § 706(2)(B); or when they are "in excess of
statutory jurisdiction, authority, or limitations, or short
of statutory right." 5 U.S.C. § 706 (2)(C).
"claims brought under the APA are adjudicated without a
trial or discovery, on the basis of an existing
administrative record...." Audubon Naturalist
Soc'y of the Cent. Atl. States, Inc. v. U.S. Dep't of
Transp., 524 F.Supp.2d 642, 660 (D. Md. 2007) (citing
Citizens for the Scenic Severn River Bridge, Inc. v.
Skinner, 802 F.Supp. 1325, 1332 (D. Md. 1991),
aff'd, 1992 WL 180138, (4th Cir. July 29,
1992)). In this context, "review of the administrative
record is primarily a legal question...." Skinner,
supra, 802 F.Supp. at 1332.
APA provides that a reviewing court is bound to
''hold unlawful and set aside agency action‘
for certain specified reasons, including whenever the
challenged act is ''arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law.‘" Friends of Back Bay, 681 F.3d at
586-87 (quoting 5 U.S.C. § 706(2)(A)); see United
States v. Bean, 537 U.S. 71, 77, (2002); Camp v.
Pitts, 411 U.S. 138, 142 (1973) (per curiam); N.
Carolina Growers' Ass'n, Inc. v. United Farm
Workers, 702 F.3d 755, 763 (4th Cir.2012) (quoting 5
U.S.C. § 706(2)). Review under the APA is highly
deferential, however, and the agency action enjoys a
presumption of validity and regularity. Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977); Ohio Valley Envtl.
Coal. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir.
2009) (citing Natural Res. Def. Council, Inc. v.
EPA, 16 F.3d 1395, 1400 (4th Cir.1993)). The party
challenging an agency decision has the burden to demonstrate
that the agency action was arbitrary or capricious.
Sierra Club v. Marita, 46 F.3d 606, 619 (7th
"[t]he scope of review under the ''arbitrary and
capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency...."
Motor Vehicle Mfrs. Ass'n of the United States v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
In assessing an agency decision, "the reviewing court
''must consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment.‘" Marsh v.
Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)
(quoting Overton Park, 401 U.S. at 416).
"''Deference is due where the agency has
examined the relevant data and provided an explanation of its
decision that includes ''a rational connection
between the facts found and the choice made.‘"
Ohio Valley Envtl. Coal., Inc. v. United States Army
Corps of Engineers, 828 F.3d 316, 321 (4th Cir. 2016)
(citation omitted); see Trinity Am. Corp. v. U.S.
EPA, 150 F.3d 389, 395 (4th Cir. 1998); Clevepak
Corp. v. U.S. EPA, 708 F.2d 137, 141 (4th Cir. 1983).
However, "[t]he ''arbitrary and capricious'
standard is not meant to reduce judicial review to a
''rubber-stamp‘ of agency action."
Ohio Valley Envtl. Coal, 556 F.3d at 192 (quoting
Ethyl Corp. v. Envtl. Prot. Agency, 541 F.2d 1, 34
extent an administrative record is relevant to issues subject
to APA review under 5 U.S.C. § 706, "the focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in
the reviewing court." Camp, 411 U.S. at 142.
"[C]ourts are to decide, on the basis of the record the
agency provides, whether the action passes muster under the
appropriate APA standard of review." Fla. Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
Section 706 of the APA instructs the reviewing court to
review the "whole record or those parts of it cited by a
party…." 5 U.S.C. § 706; Overton
Park, 401 U.S. at 420 (1971) (clarifying that judicial
review "is to be based on the full administrative record
that was before the [agency] at the time it made its
whole administrative record includes pertinent but
unfavorable information, and an agency may not exclude
information on the ground that it did not
''rely‘ on that information in its final
decision." Tafas v. Dudas, 530 F.Supp.2d 786,
793 (E.D. Va. 2008). See, e.g., Bar MK Ranches v.
Yuetter, 994 F.2d 735, 739 (10th Cir.1993) (stating that
"the administrative record consists of all documents and
materials directly or indirectly considered by the
agency."); Thompson v. United States Dep't of
Labor, 885 F.2d 551, 555 (9th Cir.1989)("The whole
administrative record ... consists of all documents and
materials directly or indirectly considered by
agency decision-makers and includes evidence contrary to the
agency's position") (citation and quotation marks
omitted, emphasis in Thompson); Ad Hoc Metals Coalition
v. Whitman, 227 F.Supp.2d 134, 139 (D.D.C.
2002)(determining that a complete record must include any
materials that were "referred to, considered by, or used
by [the agency] before it issued its final rule");
Environmental Defense Fund, Inc. v. Blum, 458
F.Supp. 650, 661 (D.D.C. 1978)("The agency may not ...
skew the ''record‘ for review in its favor by
excluding from that ''record‘ information in
its own files which has great pertinence to the proceeding in
a "complete administrative record" does not include
"privileged materials, such as documents that fall
within the deliberative process privilege, attorney-client
privilege, and work product privilege." Tafas,
530 F.Supp.2d at 794 (citing Town of Norfolk v. U.S.
ArmyCorps of Eng'rs,968 F.2d 1438,