JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on plaintiffs' Motion for Preliminary Injunction (Doc. #2) filed on July 1, 2019. Defendants filed a Response in Opposition (Doc. #21) on July 16, 2019, and plaintiffs filed a Reply (Doc. #24) on August 1, 2019.
Plaintiffs are small business owners and employers claiming that defendants exceeded their authority under the Administrative Procedures Act (APA) to implement a lottery selection process for reviewing applications filed by employers seeking temporary employment of foreign workers with H-2B visas. (Doc. #1.) On March 4, 2019, the Department of Labor (DOL) issued a Notice in the Federal Register announcing the lottery selection process entitled "Selection Procedures for Reviewing Applications Filed by Employers Seeking Temporary Employment of H-2B Foreign Workers in the United States." 84 Fed. Reg. 7399 (the "Notice") (Doc. #2-1.) The Notice announced that beginning on July 3, 2019, DOL would begin use a new lottery system to randomly select and process applications for H-2B visas
Plaintiffs challenge the Lottery Selection in a four-count Complaint (Doc. #1) under the APA and request that the Court issue a preliminary injunction to restrain the Lottery Selection from continuing and find that the Notice is invalid and enter an order vacating the Notice.
Some background on how the Lottery Selection process came to be is helpful here. Participation of the H-2B visa worker program has grown significantly over the years. As a result, prior to Lottery Selection, employer's H-2B visa applications were sequentially assigned based on the calendar date and time the applications were received, measured to the millisecond. Plaintiffs state that they would submit their applications on the first filing day at midnight to ensure control over their access to the H-2B program. Because of the high number of applicants that wanted to be first in line during the most recent filing period on January 1, 2019, the DOL's electronic filing system crashed. Thereafter, the DOL reassessed its procedures and developed the Lottery Selection process announced in the Notice.
On July 1, 2019 (two days before the Lottery Selection process was set to be implemented), plaintiffs sought an
The Government informs the Court that July 3, 2019 came and went without any application from plaintiffs for a temporary labor certification(s) (TLC), which is required before an H-2B visa can be issued to an employer. Thus, the Government argues that plaintiffs lack Article III standing to seek judicial review because plaintiffs have not suffered an actionable injury-in-fact and requests that the Court dismiss this action in its entirety on this basis.
Plaintiffs concede that Carol King Landscaping has not yet filed their requests for a TLC, but that America at Play applied and was granted 7 TLCs on September 9, 2019 (Doc. #37-1), but they nonetheless have standing to bring this suit because they have suffered a procedural injury and will suffer a future injury when they file future TLC requests. (Doc. #24, pp. 2-4.) The Court has reviewed the Declarations of Bruce Bachand, Vice President of Carol King Landscaping Maintenance, Inc. (Doc. #1-2) and the Declaration of Jill M. Athans-Hemmes, owner of America at Play, Inc. (Doc. #1-3), who both assert that Lottery Selection will cause them to lose all control over access to the H-2B program and their businesses will suffer dramatically.
The authority to administer the H-2B program is vested in the Department of Homeland Security (DHS) pursuant to section 1184(c) of the Immigration and Nationality Act (INA), which directs that "[t]he question of any alien as a nonimmigrant under 8 U.S.C. § 1101(a)(15)(H) shall be determined by the [DHS] after consultation with appropriate agencies of the Government, upon petition of the importing employer." 8 U.S.C. § 1184(c)(1). The DHS has by regulation designated the DOL as the agency from which it seeks "advice" in determining whether to grant H-2B visa petitions. 8 C.F.R. § 214.2(h)(6)(iii). The DHS has also by regulation endowed the DOL with the authority to create the procedures necessary to fulfill its charge of issuing labor certifications.
The INA sets the annual number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status by the DHS to perform temporary non-agricultural work at 66,000, to be distributed semi-annually beginning in October and April. 8 U.S.C. § 1184(g)(1)(B). Up to 33,000 H-2B visas may be issued in the first half of a fiscal year (October 1 to March 31), and the remaining visas (33,000, or more if some are left over from the first semi-annual allocation) will be available for employers seeking to hire H-2B workers during the second half of the fiscal year (April 1 to September 30).
Because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply for a TLC 75 to 90 days before the start date of work, employers who wish to obtain visas for their workers under the semi-annual allotment for periods of need from April 1 to September 30, 2018 must promptly apply for a TLC and then file a petition with USCIS before the cap is reached. As a result, OFLC typically experiences a significant "spike" in labor certification applications for temporary or seasonal jobs beginning in the early spring and summer. The fiscal cap, however, may be supplemented, and it has been in recent years. For example, in fiscal year 2019, the H-2B visa cap for the second half of the fiscal year was reached on February 29, 2019, but an additional 30,000 H-2B visas for the remainder of fiscal year 2019 were authorized by the Secretary of Homeland Security and the Secretary of Labor. 84 Fed. Reg. 20005. Increases also were announced for fiscal years 2017 and 2018.
Article III standing is a prerequisite to a federal court's exercise of subject-matter jurisdiction"
When a court considers a Rule 12(b)(1) dismissal of a case on a factual challenge to subject matter jurisdiction (either for lack of standing or mootness), the court may consider facts outside the pleadings such as testimony and affidavits as long as the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.
To establish Article III standing, a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."
In cases such as this where the parties seek injunctive and declaratory relief, the injury-in-fact demanded by Article III requires an additional showing. In addition to past injury, "a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future."
Defendants appear to be making a purely facial attack on the Complaint, arguing that plaintiffs fail to sufficiently allege an injury-in-fact that would establish Article III standing to proceed as the Complaint makes no allegations that plaintiffs have actually submitted any TLCs for the DOL to process under its current Lottery Process. Although defendant raise a facial attack on Article III standing, in determining whether the Court has jurisdiction to entertain plaintiffs' claims, it may look beyond the four corners of the Complaint.
In addition to Article III standing, because this case is brought pursuant to the Administrative Procedures Act (APA), a plaintiff must also demonstrate that it has prudential standing.
Here, plaintiffs allege that they have a valid past, present, and future injury; and the unlawful Notice creates a procedural injury pursuant to the APA that affects plaintiffs' concrete interests as regulated entities. (Doc. #36, p. 2.)
The Eleventh Circuit just this year discussed future injury for purposes of standing at length:
The
In examining the record for evidence concerning the likelihood of future harm, the Court reviews the Government's Declaration of Brian Pasternak, stating that in the past five years, Carol King Landscaping has submitted H-2B applications at the beginning of January for four of those five years.
Plaintiffs state that on September 9, 2019, America at Play d/b/a Beach Road Wine Bar and Bistro, was able to obtain a TLC for this upcoming season under the Lottery Selection process. (Doc. #37-1.) The Approval of H-2B Temporary Labor Certification (Doc. #37-1) shows that America at Play received certification for 7 workers with an employment begin date of November 1, 2019, and end date of May 1, 2020. Therefore, America at Play's claim of future injury is too speculative to rise to the level of substantial likelihood as required by Supreme Court and Eleventh Circuit case law.
Therefore, this case is dismissed for lack of standing as to America at Play because they have failed to show a substantial likelihood of future injury.
By contrast, Carol King Landscaping (to the Court's knowledge) has not yet submitted H-2B applications during the pendency of this case but states that it plans to apply at the beginning January. Indeed, Carol King has applied at the beginning of January for four of the last five years. (Doc. #21-1.) However, even assuming that Carol King Landscaping does apply for under the Lottery Selection process in January 2020, there is no indication (let alone a substantial likelihood) that Carol King would be injured. Indeed, America at Play did receive TLCs when it applied, undercutting any argument that the Lottery Selection process forecloses plaintiffs' access to the program.
It is worth noting that as of July 5, 2019, the Government had received applications representing 12,098 worker positions for October 1, 2019 start dates. As this number is below the 33,000 slots allotted, plaintiffs state in their brief that the Lottery Selection process has not yet had the effect of actually depriving an applicant of a TLC. (Doc. #24, fn.3.) However, because the DOL conducts the lottery on a daily basis, plaintiffs believe that the Lottery Selection process will in fact deprive plaintiffs of a TLC when the number of applications exceeds the number of slots remaining. (
Therefore, this case is dismissed for lack of standing as to Carol King Landscaping because they have failed to show a substantial likelihood of future injury.
The more substantial standing issue, not raised by defendants, is the redressability prong of the constitutional standing requirements. In order for plaintiffs to show that they have standing, they must demonstrate that their alleged injury is redressable by a favorable ruling or decision.
Because the Court has determined that plaintiffs have failed to establish Article III standing, it need not address whether plaintiffs would have prudential standing under the zone-of-interest test. Accordingly, the request for a preliminary injunction is denied as moot.
Accordingly, it is hereby
1. Defendant's Motion to Dismiss for Lack of Jurisdiction (Doc. #35) is
2. Plaintiffs' Motion for Preliminary Injunction (Doc. #2) is