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Carol King Landscaping Maintenance, Inc. v. Pizzella

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

September 26, 2019

CAROL KING LANDSCAPING MAINTENANCE, INC., a Florida corporation, d/b/a Beach Road Wine Bar and Bistro and AMERICA AT PLAY, INC., a Florida corporation, d/b/a Beach Road Wine Bar and Bistro, Plaintiffs,
PATRICK PIZZELLA, in his official capacity as United States Secretary of Labor, MOLLY CONWAY, in her official capacity as United States Acting Assistant Secretary of Labor, Employment and Training Administration, and THOMAS DOWD, in his official capacity as Deputy Assistant Secretary of Labor, Employment and Training Administration, Defendants.



         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.[1] In its Response to the Preliminary Injunction Motion (Doc. #21), defendants raised the issue of standing, and on September 3, 2019 filed a Motion to Dismiss for Lack of Jurisdiction on this basis (Doc. #35). Plaintiffs filed a Response in Opposition and Exhibit (Docs. ##36, 37) on September 17, 2019.[2] For the reasons set forth below, the case is dismissed without prejudice for lack of jurisdiction.

         I. Background

         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[3] filed within the first three (3) days of the season until the agency reaches the 33, 000-worker cap set by the Department of Homeland Security (the “Lottery Selection”). DOL would thereafter process any remaining applications. The Notice invited public comment to be submitted by April 3, 2019. Public comments were received but were not published.

         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 ex parte temporary restraining order from this Court to enjoin the Lottery Selection process from taking effect. (Doc. #2.) On July 2, 2019, the Court denied the portion of the Motion requesting the entry of a temporary restraining order and took the request for a preliminary injunction under advisement pending formal service and a response. (Doc. #10.)

         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.[4] The Court has also reviewed the Declaration of Brian D. Pasternak from the Department of Labor, who is responsible for the Office of Foreign Labor Certification’s adjudication of applications for labor certification required for temporary and permanent employment-based immigration. (Doc. #21-1.) Pasternak is familiar with the plaintiffs’ past filing history for TLCs.

         II. Relevant Background of the H-2B Visa Program

         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).[5] 8 U.S.C. § 1184(g)(10).

         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. See 82 Fed. Reg. 32987 (2017); 83 Fed. Reg. 24905 (2018).

         III. Standing

         A. Standard

         Article III standing is a prerequisite to a federal court’s exercise of subject-matter jurisdiction” J W by & through Tammy Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1264 (11th Cir. 2018), and the Eleventh Circuit has repeatedly held “[s]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims.” Motions which raise mootness or the lack of standing attack the court’s subject matter jurisdiction and are therefore considered pursuant to Rule 12(b)(1). Doe v. Pryor, 344 F.3d 1282, 1284 (11th Cir. 2003). Rule 12(b)(1) motions challenging the subject matter jurisdiction of the court come in two forms, a “facial” attack motion and a “factual” attack motion. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). A facial attack challenges subject matter jurisdiction based on the allegations in the complaint, and the court takes the allegations in the complaint as true in deciding the motion. Id. at 924 n.5. The complaint ...

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