GREENBERG, Circuit Judge.
This appeal is concerned with the ripeness doctrine, a constitutional mandate derived from Article III's requirement that federal courts hear only cases or controversies. U.S. Const., Art. III, § 2. The doctrine assists courts in avoiding the need to address speculative cases, in deferring to administrators with subject matter expertise, and in deciding cases on the basis of fully-developed records. The Supreme Court has explained that the question of whether a controversy is "ripe" for judicial resolution has two aspects that require a court to evaluate both the fitness of the issues for judicial decision and the possible hardship to the parties if it withholds consideration of a case presented to it. To some extent these inquiries require a court to exercise judgment, rather than to apply a black-letter rule. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).
In this case involving rules applying to the admission of certain foreign workers into the United States for temporary employment, we are mindful of the foregoing considerations and give due regard to the expertise exercised by the Department of Labor ("DOL"), the implicated agency principally involved in this case, and the historical shifts and political compromises underlying the DOL's adoption of the rules at issue. Furthermore, in view of the subject matter of this litigation, we are concerned with the congressional policy to protect American workers from a depression of their wages attributable to the entry of foreign workers into the domestic labor market.
Plaintiffs appeal from an order of the District Court dismissing their challenge to 20 C.F.R. § 655.10(f), a DOL regulation applicable in the administration of the H-2B visa program that authorizes the Department of Homeland Security ("DHS") to admit certain unskilled foreign workers into this country for temporary employment. On this appeal, we are concerned with an aspect of the H-2B program, the 2009 Wage Guidance, which authorizes employers to use privately-funded wage surveys to set the prevailing market wage for certain occupations. The Court at the outset of its consideration of the case invoked the ripeness doctrine when it made a determination that the matter was not at that time justiciable and, accordingly, the Court would not consider the merits of plaintiffs' challenge to the regulation. Comité de Apoyo a Los Trabajadores Agricolas v. Perez, No. 14-2657, 2014 WL 4100708 (E.D.Pa. July 23, 2014) (CATA III). We determine that this case is ripe for judicial review, render judgment for plaintiffs, and hold that 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious and in violation of the APA. We order vacatur of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance.
Plaintiffs based their complaint challenging 20 C.F.R. § 655.10(f) and DOL's 2009 Wage Guidance on the Administrative Procedure Act ("APA"). This case is another step in a long-running controversy concerning the administration of the H-2B program. Resolution of discrete disputes arising from the controversy have led to this Court and district courts setting out the factual background and procedural history of the controversy in previous opinions. See Comité de Apoyo a los Trabajadores Agrícolas v. Solis, No. 2:09-240 LP, 2010 WL 3431761 (E.D.Pa. Aug. 30, 2010) (CATA I); Comité de Apoyo a los Trabajadores Agrícolas v. Solis, 933 F.Supp.2d 700 (E.D.Pa.2013) (CATA II); La. Forestry Ass'n, Inc. v. Solis, 889 F.Supp.2d 711 (E.D.Pa.2012), aff'd sub nom. La. Forestry Ass'n Inc. v. Secretary, U.S. Dep't of Labor, 745 F.3d 653 (3d Cir.2014). Thus, though the issues we now address are new, we are not writing on a blank slate.
The H-2B visa program — named for the statutory section which authorized its creation
DHS and DOL currently administer the H-2B program. The INA confers broad authority on DHS to admit aliens into this country and to promulgate regulations governing the issuance of nonimmigrant visas. 8 U.S.C. § 1184(a)(1). The H-2B program establishes a method for the issuance of visas differing from the ordinary practice by which a person seeking to be admitted into the United States applies for a visa because under the H-2B program the putative employer, not the person seeking to be admitted, makes the application. Prior to filing an H-2B petition with DHS, an employer must obtain a temporary labor certification from the Secretary of Labor. 8 C.F.R. § 214.2(h)(6)(iii) (2011). That certification constitutes DOL's "advice" that DHS should grant the requested H-2B visa and must confirm that: (1) qualified workers are not available in the United States to perform the employment for which foreign workers are sought, and (2) the aliens' employment will not adversely affect wages and working conditions of similarly employed United States workers. 8 C.F.R. § 214.2(h)(6)(iii)(A), (iv)(A). DHS regulations provide for DOL to "establish procedures" for issuing labor certifications within these confines. 8 C.F.R. § 214.2(h)(6)(iii)(D). Inasmuch as the availability of workers is related to the wage offered for the employment because the higher the wage the greater the likelihood
DOL through its H-2B procedures long has sought to avoid causing adverse effects on American workers' wages and working conditions from the admission of foreign workers by requiring H-2B employers to offer and pay at least the prevailing wage both to the H-2B workers and to the United States workers engaged for the employment opportunity. To facilitate compliance with this requirement, DOL has from time to time published specific guidelines governing the system by which it will determine the prevailing wage for the employment that an employer is seeking to fill with foreign workers.
Over the years, DOL has changed its method for calculating prevailing wages on several occasions, often without giving interested parties notice of its intent to make the changes or the opportunity to comment on the contemplated changes, and has made the changes without explanation. Initially, DOL advised state workforce agencies that became involved in the administration of the program to calculate a single prevailing wage for any given occupation in the area of intended employment.
Prior to 2005, DOL required the use of wage rates established on the basis of government programs such as those under the Service Contract Act ("SCA") or the Davis Bacon Act ("DBA"), but in March 2005, DOL changed its approach through the 2005 Wage Guidance, which, in the absence of a collective bargaining agreement ("CBA"), permitted the prevailing wage rate to be set using either private employer surveys or a Bureau of Labor Statistics Occupational Employment Statistics ("OES") survey. Subsequently, on December 19, 2008, DOL adopted the "2008 Wage Rule," which states: "the prevailing wage for labor certification purposes shall be the arithmetic mean ... of the wages of workers similarly employed at the skill level in the area of intended employment." 73 Fed.Reg. 78,020, 78,056 (Dec. 18, 2008) (codified at 20 C.F.R. § 655.10(b)(2)) (emphasis added). By
Even though DOL did not seek public comments on the use of this four-level methodology in the H-2B program prior to adopting these rules, interested parties submitted comments to it contending that use of "skill level" prevailing wages made no sense in the context of low-skill H-2B jobs and that their adoption resulted in wage depression. The comments also criticized DOL's decision to permit the use of employer surveys when valid OES wage data was available for setting a prevailing wage because employer surveys would be used to undercut wages that would have been based on OES surveys to the detriment of both American and foreign H-2B workers. 73 Fed.Reg. at 78,031; A386-409 (Low Wage Worker Legal Network July 2008 comments ETA 2008-0002-0088). DOL did not respond to those comments, instead continuing to set skill-level OES wages and evaluate employer surveys submitted pursuant to these regulations using the later-adopted 2009 Wage Guidance.
Organizations representing H-2B and United States workers challenged 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance in CATA I. These plaintiffs asserted that the vast majority of H-2B jobs were low-skilled occupations filled by laborers, housekeeping cleaners, and amusement park workers, or persons in similar low-skilled employment, and that the rules recognized artificial skill distinctions that allowed employers to bring foreign workers into the country for employment at wages substantially below the average wage for an occupation, to the detriment of United States workers.
On August 30, 2010, a district court in CATA I held that DOL improperly promulgated the "skill level" 2008 Wage Rule. The court reasoned:
2010 WL 3431761, at *19. In invalidating the words "at the skill level," the court stressed that "DOL has never explained its reasoning for using skill levels as part
The district court further found that DOL's errors in promulgating the 2008 Wage Rule were "serious" and of a magnitude that counseled in favor of vacating the rule. Id. at *25 ("[W]hile the use of skill levels in 20 C.F.R. § 655.10 is invalid for lack of a rational explanation, DOL's failure to provide an explanation for using skill levels in the H-2B program constitutes a recurring issue stretching over more than a decade, and DOL was, in the context of the 2009 rulemaking, presented with comments alleging fundamental problems with the use of skill levels in the H-2B program."). Nonetheless, in view of the circumstance that the court was invalidating the rule due to DOL's procedural rather than substantive errors, it did not vacate the portion of the 2008 Wage Rule providing for skill-level methodology; instead, the court remanded the case to DOL and ordered it to promulgate a replacement rule within 120 days, pursuant to the APA's procedures for notice and comment. Id.
Pursuant to that order, DOL issued a notice of proposed rulemaking. This notice stated that the 2008 Wage Rule's skill-level methodology did not comply with DOL's regulatory and statutory mandate because the methodology did not produce "the appropriate wage necessary to ensure that U.S. workers are not adversely affected by the employment of H-2B workers." Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 75 Fed.Reg. 61,578-01, 61,579 (Oct. 5, 2010). Following notice and comment, DOL announced a revised prevailing wage rule in January 2011 ("the 2011 Wage Rule"). Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, 76 Fed.Reg. 34520176 (Jan. 19, 2011). The 2011 Wage Rule prohibits use of private surveys except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification. Id. at 3467. The 2011 Wage Rule's preamble explains that the Rule was promulgated in response to findings that the 2008 Wage Rule "artificially lowers ... wage[s] to a point that [they] no longer represent[] market-based wage[s] for the occupation." Id. at 3477. The preamble concludes: "continuing the current calculation methodology ... does not provide adequate protections to U.S. and H-2B workers," violating both the INA and DHS mandates. Id. at 3471, 3477. Though employer associations challenged the 2011 Wage Rule, we upheld the rule in Louisiana Forestry, 745 F.3d 653.
Notwithstanding the district court's 2010 order and the promulgation of the 2011 Wage Rule, DOL has continued to use 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance, as it has postponed the 2011 Wage Rule's effective date on several occasions because the 2011 Wage Rule was subject to congressional appropriations riders precluding its implementation.
DOL and DHS responded to CATA II by promulgating an Interim Final Wage Rule ("IFR") pursuant to the APA "good cause" exception to notice and comment rulemaking. 5 U.S.C. § 553(b)(B), (d)(3). The IFR eliminated the use of skill levels from the definition of prevailing wage, but continued the practice of allowing a prevailing wage to be set by use of either an OES or private wage survey.
The promulgation of the IFR caused DOL to abandon the use of the 2008 Wage Rule and 2009 Wage Guidance to derive four skill-level prevailing wages from the OES survey. Instead it set the OES prevailing wage at the mean wage for each occupation and area of employment. 78 Fed.Reg. at 24,053, 24,058-59. However, the IFR had no effect on DOL's use of private employer surveys in the calculation of prevailing wages as DOL continued to evaluate private surveys using the skill-level definition of prevailing wage.
The IFR, however, was hardly DOL's last word on the H-2B prevailing wage matter, for on March 14, 2014, the Secretary of Labor and DOL notified the regulated community that DOL "intends to publish a notice of proposed rulemaking on the proper wage methodology for the H-2B program working off of the 2011 Wage Rule as a starting point." 2014 H-2B Notice, 79 Fed.Reg. at 14,450. DOL stated that it "will consolidate our current review of comments on the 2013 IFR with review of comments received on the new notice of proposed rulemaking, and will issue a final rule accordingly." Id. Nevertheless, we cannot be certain if the new rule will be promulgated, or, if promulgated, become effective, because, among other possible impediments, its implementation depends on the availability of congressional funding and Congress might withhold the funding as it has in the past with earlier DOL rules. Moreover, unless and until a new final rule becomes effective, DOL will continue to approve skill-level prevailing wages based on private wage surveys. See 78 Fed.Reg. at 24,054 n. 13 (indicating intent to continue to evaluate private surveys using 2009 Wage Guidance).
Notwithstanding the March 14, 2014 notification, plaintiffs, facing an uncertain picture, on May 8, 2014, sued Thomas Perez in his official capacity as Secretary of Labor to challenge the lawfulness of the continued use of private wage surveys. Plaintiffs contend that the use of such private wage surveys violates the district court's order in CATA II, 933 F.Supp.2d 700,
After a hearing on the motion for a preliminary injunction, the District Court in CATA III dismissed the case without prejudice on July 23, 2014, on the ground that the proposed 2014 or 2015 rule-making process could result in a prospective change of the rules at issue such that plaintiffs' challenge was not ripe for adjudication. Plaintiffs filed a timely notice of appeal, and sought our expedited consideration of the appeal. We granted that request and now decide the case.
The District Court had jurisdiction over this APA case pursuant to 28 U.S.C. §§ 1331 and 1346, and we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 even though the dismissal was without prejudice. See Lichoulas v. City of Lowell, 555 F.3d 10, 13 (1st Cir.2009).
Our review of the District Court's dismissal on ripeness grounds is plenary. See Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1289 (3d Cir. 1993). We also review APA-based challenges on a de novo basis, "apply[ing] the applicable standard of review to the underlying agency decision." La. Forestry, 745 F.3d at 669 (citing Cyberworld Enter. Techs. Inc. v. Napolitano, 602 F.3d 189, 195-96 (3d Cir.2010)). In exercising our jurisdiction, we note that it is "generally appropriate" for an appellate court to reach the merits of an issue even if the district court has not done so, provided that, as here, "the factual record is developed and the issues provide purely legal questions upon which an appellate court exercises plenary review." Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 159 (3d Cir.1998).
The District Court concluded that plaintiffs' challenge was not ripe for adjudication because it believed that DOL should be permitted to review and rule on issues involving labor certification, at least in the first instance, without intervention from the judiciary. Although we do not doubt that ordinarily DOL rather than a court should make administrative determinations of the type at issue here, the history of this case convinces us that we should intervene at this time because the fact that DOL plans to reconsider the appropriateness of the use of private wage surveys does not mean that plaintiffs' challenge is unripe. See Am. Paper Inst. v. EPA, 996 F.2d 346, 355 n. 8 (D.C.Cir.1993) (finding case ripe even though EPA was considering rulemaking which could moot case); Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739-40 (D.C.Cir.1990) (rejecting EPA argument that planned rulemaking rendered case unripe and noting "an agency always retains the power to revise a final rule through additional rulemaking. If the possibility that amendments to a rule was sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely.").
As we have explained, courts require a case to be ripe to be adjudicated to avoid becoming entangled in premature adjudication. Abbott Labs., 387 U.S. at 148, 87 S.Ct. at 1515. With regard to administrative agency actions, considerations of ripeness reflect the need "to protect
We are satisfied that DOL's wage determinations predicated on private wage surveys are final agency actions. We come to this conclusion even though the District Court found that "DOL [has] not yet taken a final position — specifically here, as to whether prevailing wage determinations under 20 C.F.R. § 655.10(f) using the 2009 Wage Guidance are valid, enforceable, and the specific wage methodology to be used." CATA III, 2014 WL 4100708, at *8. Notwithstanding the District Court's view, it is uncontested that both 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance have been in place for years, and DOL has been using them regularly when acting on labor certification applications.
DOL's use of the challenged rules distinguishes this proceeding from cases the District Court cited in its opinion as in those cases the agencies involved had not implemented the challenged rule. See Felmeister v. Office of Att'y Ethics, 856 F.2d 529, 535-37 (3d Cir.1988) (challenge to attorney advertising rule not ripe where ethics committee had yet to interpret the rule and plaintiff had never submitted advertisement for approval); Wearly v. FTC, 616 F.2d 662, 66668 (3d Cir.1980) (challenge to subpoena not ripe where agency had not made a decision to enforce the subpoena); AT & T Corp. v. FCC, 369 F.3d 554 (D.C.Cir.2004) (challenge not ripe because the FCC reserved judgment on whether safeguards were necessary and its policy remained undetermined). This case is different because DOL's ongoing use of 20 C.F.R. § 655.10(f) and 2009 Wage Guidance to approve private wage surveys demonstrates that DOL has taken a "final" position for the purposes of our ripeness determination. This finality is not undermined even though the present rules may not remain DOL's last position with regard to H-2B program rules. See Philadelphia Fed'n, 150 F.3d at 323.
The use and effect of DOL's rules allowing private surveys in prevailing wage determinations make this case analogous to Center for Biological Diversity v. EPA, 722 F.3d 401 (D.C.Cir.2013), a case in which the Court of Appeals for the District of Columbia Circuit rejected a ripeness argument seeking dismissal of a challenge to a temporary regulation the EPA had committed to replace by a date certain. The court found the case ripe because the issues were "purely legal" and "sufficiently final" and the challenged regulation was causing injury to the plaintiff. Id. at 408.
Id. (emphasis added). The Cobell court emphasized that the Department was making ongoing use of the IIM system and that the plaintiffs had no choice but to have their accounts administered under that system. The accounting system was thus "final" for the purposes of a ripeness determination, although it was interlocutory in the sense that it was subject to further evaluation. See also Am. Paper, 996 F.2d at 355 n. 8.
The District Court also relied on National Treasury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996), for the proposition that the Court would conserve judicial resources by delaying adjudication of the dispute until DOL had completed its review and rule-making procedures. National Treasury, however, is unpersuasive with respect to the matter before us. That case involved a challenge to the Line Item Veto Act, which, although signed into law, would not go into effect until the President submitted a balanced budget. Id. Because it was unclear whether this triggering event ever would occur and, if so, when, and application of the Act could not harm the plaintiffs until such time, the court concluded that it would be a waste of judicial resources for it to entertain the challenge. Id. at 1430. Here, in contrast to the situation in National Treasury, plaintiffs' harm is not contingent on some triggering event; DOL is using the challenged rules on an ongoing basis in the administration of the H-2B program. Accordingly, this case is presently fit for adjudication.
The second prong of our ripeness analysis requires that we evaluate the hardship that may be imposed on the parties if the courts deny judicial review at this time, and determine whether the challenged action has a "direct and immediate" impact on the parties. See Abbott Labs., 387 U.S. at 152, 87 S.Ct. at 1517.
The DOL's evaluation of employer surveys using the skill-level provisions of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance is adversely affecting United States workers by forcing them to accept depressed wages or face being replaced by foreign H-2B workers. Indeed, the District Court recognized that the workers were suffering this injury and noted that "Plaintiffs ... will have every opportunity to participate in the new rulemaking planned for 2014-2015." CATA III, 2014 WL 4100708, at *10. But the possibility that plaintiffs will be able to participate in some future rulemaking that may or may not lead to a change in the rules does not ameliorate the harm that DOL's current use of those rules is causing plaintiffs now.
DOL is not delaying or conditionally issuing its labor certifications during its internal deliberations; rather, it is using the directives of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance to issue certifications.
It seems clear that each time DOL uses the challenged rules to certify to DHS that an application using a private survey wage "will not adversely affect U.S. workers" pursuant to 8 C.F.R. § 214.2(h)(6)(iv)(A), DOL is making a final economic determination as to both the validity of the survey and the economic effect of the survey wage.
In the 12 months prior to the District Court's March 21, 2013 order and subsequent issuance of the IFR, applicants submitted only 49 surveys employing a private wage survey determination.
DOL has found that these wage levels are causing wage depression among domestic workers. 76 Fed.Reg. at 3463. Perhaps the most vivid illustration of the detriment to workers such as those represented by plaintiffs is the significant expansion of the usage of employer wage surveys in the landscaping industry, which did not submit any employer wage surveys in the year prior to April 2013 despite being the industry employing the most H-2B employees.
We are convinced that we should not permit DOL to continue to discharge its investigatory and rule-making functions as it is doing now because its continued approval of skill-level wages submitted based on employer wage surveys is not only adversely affecting the wages of similarly employed United States workers, but the H-2B program as now administered is leading to unjustified disparities between employers who submit private wage surveys and otherwise similarly situated employers who do not submit surveys and who therefore must pay the OES prevailing wage. An agency's promise regarding prospective rulemaking has no effect on the ripeness of a challenge, like the one plaintiffs make here, when the challenged rules are being used as the basis of final agency actions. DOL's proposed rulemaking, in the context of its ongoing practices and the harm suffered by plaintiffs, does not somehow render what otherwise would be a case ripe for litigation unripe. Accordingly, we conclude that this matter is ripe for adjudication, and we will review the validity of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance.
We have considered but rejected remanding this case to the District Court so that it could decide the case on the merits. Rather, in the interest of judicial economy and because we recognize that workers in
We find support for our decision to reach the merits of the controversy in a recent court of appeals opinion dealing with a challenge under the APA to DOL's H-2A temporary labor certification rules. Mendoza v. Perez, 754 F.3d 1002 (D.C.Cir. 2014). There the court of appeals, after finding that the district court improperly had dismissed the case for lack of standing and thus lack of jurisdiction, concluded that "[a] remand to the district court would be a waste of judicial resources" in light of the fact that "the district court has no comparative advantage in reviewing the agency action for compliance with notice and comment requirements. An appeal from any district court decision after remand is likely, and our review of the district court's decision would be de novo." Id. at 1020. The long litigation history of this matter shows that these considerations apply with equal force here.
In considering this case on the merits, we determine first that Section 655.10(f) is procedurally invalid because DOL has not explained why it has been allowing employers to use private wage surveys in prevailing wage determinations when valid OES wage rates are available for the same purpose. An agency must show on the record that it has satisfied its obligation to supply a reasoned analysis when it departs from past policy. 5 U.S.C. § 706(2)(D). Without such analysis, a reviewing court may conclude that an agency has taken action without complying with procedures required by law. Id. When making a shift in policy, an agency "must examine the relevant data and articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made.'" Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 242, 9 L.Ed.2d 207 (1962)). A reviewing court then "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (citations and internal quotation marks omitted). A court will set aside an agency's action as "arbitrary and capricious" if the agency does not provide a "reasoned explanation" for its change in course. Massachusetts v. EPA, 549 U.S. 497, 534-35, 127 S.Ct. 1438, 1463, 167 L.Ed.2d 248 (2007); Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 2699-700, 162 L.Ed.2d 820 (2005) ("unexplained inconsistency" in agency practice is a reason for holding a policy reversal "arbitrary and capricious" under the APA, unless "the agency adequately explains the reasons for a reversal of policy"); see State Farm, 463 U.S. at 42 — 43, 103 S.Ct. at 2866-67; see also CBS Corp. v. FCC., 663 F.3d 122, 145 (3d Cir.2011).
Finally, in 2011, DOL proposed adoption of a policy limiting the use of private employer surveys to situations in which a valid government survey was not available for the same purpose. 76 Fed.Reg. at 3459, 3465-66. In doing so, DOL publicly acknowledged that DBA, SCA, and OES surveys were the most reliable bases for setting prevailing wages and that "employer surveys are not, generally, consistently reliable." Id. at 3465. DOL also noted that "[e]mployers typically provide private surveys when the result is to lower wages below the prevailing rate ... a result that is contrary to the Department's role in ensuring no adverse effect." Id. Yet when appropriation bill riders precluded the 2011 Rule from going into effect, DOL reversed its course again and issued its IFR in April 2013, allowing unlimited use of private surveys. The return to its post-2005 policy seems unjustifiable in light of DOL's findings in the 2011 rulemaking, but, as in 2005 and 2008, DOL offered no explanation for the change in its policy. DOL simply stated:
78 Fed.Reg. at 24,054. This "explanation" is hardly sufficient for it merely explains what has been done, not why it was done.
We accordingly conclude that DOL has violated the APA by its repeated failures to provide explanations for its policy shifts. See 5 U.S.C. § 706(2)(D); La. Forestry, 745 F.3d at 679. Though we are aware that DOL faced considerable difficulty implementing the 2011 rule because of congressional appropriations riders precluding the spending of funds for that purpose, we
We next conclude that in addition to being procedurally flawed, Section 655.10(f) is substantively arbitrary, and, thus by adopting it, DOL violated 5 U.S.C. § 706(2)(A). Under the APA, a reviewing court may set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An agency acts arbitrarily and capriciously if it "has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." State Farm, 463 U.S. at 43, 103 S.Ct. at 2867.
Given DOL's endorsement of the OES wages as "among the largest, most comprehensive, and continuous statistical survey programs of the Federal Government," 78 Fed.Reg. at 24,053; 76 Fed.Reg. at 3463; 69 Fed.Reg. 77,326, 77,369 (Dec. 27, 2004), and its finding that the OES survey "is the most consistent, efficient, and accurate means of determining the prevailing wage rate for the H-2B program," 76 Fed. Reg. at 3465; see also id. (DOL stating that "employers typically provide private surveys when the result is to lower wages below the prevailing wage rate"), we are satisfied that DOL acted arbitrarily and capriciously when it permitted — and by its policies, structurally encouraged — employers to rely on details of a private survey when there was a valid OES wage survey available for use in determining the prevailing wage for the implicated employment. After all, DOL publicly has pointed out that employer surveys are generally unrealistic. See 76 Fed.Reg. at 3465 (DOL stating that "employers typically provide private surveys when the result is to lower wages below the prevailing wage rate"). Nonetheless, DOL has perpetuated a system by which employers are benefitted financially by submitting private surveys to justify wages lower than the OES wages, a practice that the interested parties in this case have well understood. As the District Court noted, "both sides acknowledge that employers pay for expensive private surveys aiming to obtain a wage rate that is lower than the available OES survey wage rate." CATA III, 2014 WL 4100708, at *5.
As a further illustration of the arbitrary nature of Section 655.10(f), we emphasize that this authorization creates a system
Failure to consider relevant factors or provide an adequate explanation for an agency action are indeed among the "wide range of reasons why agency action may be judicially branded as `arbitrary and capricious.'" FEC v. Rose, 806 F.2d 1081, 1088 (D.C.Cir.1986). DOL has not attempted to demonstrate that it has considered the relevant factors brought to its attention by interested parties during the course of the rulemaking, or that it had made a "reasoned choice among the various alternatives presented." Nat'l Indus. Sand Ass'n v. Marshall, 601 F.2d 689, 700 (3d Cir.1979). We conclude that 20 C.F.R. § 655.10(f) is arbitrary and capricious and was adopted in violation of 5 U.S.C. § 706(2)(A).
DOL has acted contrary to law because, when evaluating wage surveys based on skill levels pursuant to the 2009 Wage Guidance, DOL directly contradicts the current prevailing wage definition in 20 C.F.R. § 655.10(b)(2) (2013), adopted in response to CATA I, which rejects skill-level considerations. Agency rules that are inconsistent with or in violation of an agency's own regulations are unlawful. 5 U.S.C. § 706(2)(A) & (C); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994). DOL admits as much as it "agrees that employer-provided surveys likely should not be based on the collection of wages at skill levels." See 76 Fed.Reg. at 3466-67. Despite this candid acknowledgement, DOL requests that we allow the 2009 Wage Guidance to remain enforceable until DOL completes its proposed rulemaking. But we see no reason to allow DOL to continue to use a wage guidance that contradicts its own rules.
It is particularly troublesome that use of the 2009 Wage Guidance violates 5 U.S.C. § 706(2)(A) and (C) in that the undercutting of the OES wage rate is impairing DOL's carrying out of Congress's statutory charge. Congress has charged DOL with the duty to ensure that it grants certifications only if they do not adversely affect wages and working conditions of United States workers, and it is the burden of DOL to be mindful of and honor that charge. However, employers increasingly have been submitting private surveys authorized by Section 655.10(f) in order to obtain a wage rate that is lower than the
Finally we come to the remedy. Section 706(2) of the APA provides that a reviewing court shall "hold unlawful and set aside agency action" that violates the APA. 5 U.S.C. § 706(2). Ordinarily, reviewing courts have applied that provision by vacating invalid agency action and remanding the matter to the agency for further review. See, e.g., Abington Mem. Hosp. v. Heckler, 750 F.2d 242, 244 (3d Cir.1984). Here it is particularly appropriate to remand the case with a vacatur because if we did not do so, we would leave in place a rule that is causing the very adverse effect that DOL is charged with preventing, and we would be "legally sanction[ing] an agency's disregard of its statutory or regulatory mandate." CATA II, 933 F.Supp.2d at 714. DOL's explanations during oral argument made clear that it has no expectation of expeditious administrative review or rehabilitation of either the 2009 Wage Guidance or its broad employer survey rule, 20 C.F.R. § 655.10(f), despite DOL's recorded admission that Section 655.10(f)'s broad authorization of employer surveys "is contrary to the Department's role in ensuring no adverse impact." 76 Fed.Reg. at 3465.
We therefore act now to grant plaintiffs' vacatur request of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance. We hold both provisions to be arbitrary and capricious and in violation of the APA. We direct that private surveys no longer be used in determining the mean rate of wage for occupations except where an otherwise applicable OES survey does not provide any data for an occupation in a specific geographical location, or where the OES survey does not accurately represent the relevant job classification. We note that DOL's existing regulations provide ample alternatives for setting prevailing wages including use of OES surveys. Moreover, DOL has the option of immediately issuing the employer survey portions of the 2011 rulemaking as an interim rule pursuant to 5 U.S.C. §§ 553(b)(B) and (d)(3). That rule offers rational, lawful limits on the use of employer surveys, already has gone through notice and comment, has been funded by Congress in its 2014 authorization, and has been upheld by this Court in Louisiana Forestry, 745 F.3d 653.
For the aforesaid reasons, we will reverse the District Court's order dismissing this case on the ground that it is not ripe for review and hold that 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance are arbitrary and capricious and adopted in violation of the APA. We grant plaintiffs' vacatur request of 20 C.F.R. § 655.10(f) and the 2009 Wage Guidance as we hold both regulations to be arbitrary and capricious and in violation of the APA.
