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Carol King Landscaping Maintenance, Inc. v. Acosta

United States District Court, M.D. Florida, Fort Myers Division

July 2, 2019

CAROL KING LANDSCAPING MAINTENANCE, INC. and AMERICA AT PLAY, INC. D/B/A/ BEACH ROAD WINE BAR AND BISTRO, Plaintiffs,
v.
ALEXANDER ACOSTA, in his official capacity as United States Secretary of Labor; MOLLY E. CONWAY, in her capacity as United States Acting Assistant Secretary of Labor, Employment and Training Administration; and THOMAS M. DOWD, in his official capacity as Deputy Assistant Secretary of Labor, Employment and Training Administration, Defendants.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiffs' Motion for Ex-Parte Temporary Restraining Order and Preliminary Injunction (Doc. 2), as well as Declarations submitted in support (Docs. 2-2, 2-3), filed on the evening of July 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. For the reasons set forth below, the request for a temporary restraining order is denied and the Court takes the request for a preliminary injunction under advisement pending formal service of the Complaint (Doc. 1) and a hearing.

         I.

         A. The Lottery Selection Process Notice

         On March 4, 2019, the Department of Labor (DOL) issued a Notice in the Federal Register 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 will use a new lottery system to randomly select and process applications for H-2B visas[2] filed within the first three (3) days in the season until the agency reaches the 33, 000-worker cap set by DHS (the “Lottery Selection”). DOL will thereafter process any remaining applications. The Notice invited public comment to be submitted by April 3, 2019. Although there is no indication that Plaintiffs participated in the comment process, Plaintiffs challenge the Lottery Selection in a four-count Complaint under the Administrative Procedures Act (APA) and request that the Court issue a temporary restraining order (and subsequent preliminary injunction) to restrain the process from taking effect on July 3, 2019.

         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.

         Plaintiffs argue that Lottery Selection will cause them to lose all control over access to the Program. As small business owners that rely heavily on seasonal workers, the new process will have drastic ramifications for Plaintiffs' business operations and ability to plan for seasonal employment needs. Plaintiffs argue that the DOL did not consider any of the consequences that Program-reliant employers such as themselves will suffer, nor did they consider the development of possibly alternative systems.

         Plaintiffs acknowledge that the Notice did invite public comment, but argue that DOL wrongly asserts in the Notice that the change is not a proposed rule - which would need to be issued pursuant to the notice and comment requirements of 5 U.S.C. § 553 - but is instead a “procedural change” to the assignment and review of H-2B applications. In this regard, on the merits, Plaintiffs allege that the Notice does not comply with 5 U.S.C. § 553 because, among other things, DOL never published a proposed rule and instead merely issued a final rule describing the rule change, and while the agency invited comments from affected persons, it did not publish any comments to the public. (Doc. 1, ¶ 39).

         Plaintiffs further allege that Defendants seeks to circumvent the notice and comment rulemaking requirements of the APA by labeling the change a procedural rule because Congress has not authorized the Secretary of Labor to issue legislative rules affecting the Program. (Doc. 1, ¶¶ 43, 65). In other words, the Notice is a legislative rule that exceeds Defendants' statutory authority. If notice and comment rulemaking was afforded, plaintiffs believe it would expose that the Notice is arbitrary and capricious under the APA. (Doc. 1, ¶ 44).

         B. Plaintiffs' Attempts to Apprise Defendants of its Actions

         Plaintiffs state that they met with the representatives from the DOL on June 27, 2019 and requested that implementation of the Lottery Selection be delayed. On July 1, 2019, the Seasonal Employment Alliance, with whom plaintiffs are affiliated, sent an email to DOL representatives stating that plaintiffs plan to seek judicial intervention to enjoin implementation of the Lottery Selection. Plaintiffs state that after filing the Complaint and Motion for Temporary Restraining Order and Preliminary Injunction, counsel would email a courtesy copy to DOL representatives. (Doc. 2, p. 25). Thus, although Plaintiffs made diligent attempts to apprise Defendants of their actions, at least at the time of filing, the request for injunction relief was ex parte as Plaintiffs request that the injunction be entered without the opportunity for Defendants to be heard.

         II.

         To obtain a temporary restraining order, a party must first establish that: (1) it is substantially likely to succeed on the merits of its underlying claims; (2) it will suffer imminent, irreparable injury without injunctive relief; (3) such injury outweighs the harm an injunction poses to the opposing party; and (4) injunctive relief will serve the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). Federal Rule of Civil Procedure 65(b) authorizes a court to grant injunctive relief ex parte - that is, against a party who has not yet received notice of the motion seeking injunctive relief and/or had an opportunity to be heard. To obtain such relief, however, the movant must make a “clear[] show[ing] that immediate and irreparable injury, loss, or damage will result . . . before the adverse party can be heard in opposition.” Fed.R.Civ.P. 65(b).

         The Local Rules of this District state further that an ex parte order “will be entered only in emergency cases to maintain the status quo until the requisite notice may be given and an opportunity is afforded to opposing parties to respond to the application for a preliminary injunction.” M.D. Fla. R. 4.05(a). To constitute a true “emergency, ” the injury alleged must be “so imminent that ...


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