[00:00:00] Speaker 03:
Good morning.

[00:00:01] Speaker 03:
May it please the court, I'm Andrea Schmidt here on behalf of the Farmworker Appellants in this case.

[00:00:06] Speaker 03:
And I'd like to reserve five minutes for rebuttal if I could.

[00:00:10] Speaker 03:
And I also want the court to know that I'm hearing impaired.

[00:00:13] Speaker 03:
And I wear hearing aids that mostly correct my impairment.

[00:00:18] Speaker 03:
But it's going to be important that everybody speaking speak into the microphone.

[00:00:22] Speaker 03:
And I already consulted with Mr. Drake about that.

[00:00:25] Speaker 03:
So I think we should be all right.

[00:00:32] Speaker 03:
The Department of Labor's violation of its own regulations in the past is having an ongoing and devastating effect on Washington farm workers.

[00:00:39] Speaker 03:
And before I get into that language of that regulation and the harm that DOL's abandonment of that regulation is causing, I want to make sure that the court understands three important things.

[00:00:50] Speaker 03:
The first thing is that DOL admits that the prevailing piece rates are higher than they were.

[00:00:57] Speaker 03:
That's that H2A minimum hourly wage when it says that workers can earn more working at the piece rates than they can at the hour.

[00:01:08] Speaker 03:
And second, because the H2A program protects workers on a market level,

[00:01:14] Speaker 03:
We don't have to know whether every single worker will in fact earn more than the AWAR when working at a piece rate to know that those piece rate wages are higher for the purposes of this regulation.

[00:01:26] Speaker 03:
And it's important to remember that these contracts under the H2A system are not individually negotiated contracts.

[00:01:34] Speaker 03:
These are contracts that are market protectors and market testers, and they operate on a farm by farm and on a market level, not on an individual level.

[00:01:44] Speaker 03:
The third thing I want the court to remember is that current and remediable harm is happening because of DOL's past violations of these regulations.

[00:01:55] Speaker 03:
So to talk about the regulatory language, the language at issue is- Sorry, could you explain that third point a little bit more?

[00:02:03] Speaker 01:
What is the current harm that's following from the past violations?

[00:02:07] Speaker 03:
So in 2023, DLL unlawfully approved 162 clearance orders affecting about 31,000 farm workers.

[00:02:17] Speaker 03:
So that's about a third of the hand harvest workforce in Washington that violated this regulation.

[00:02:25] Speaker 03:
The unlawful wages that were paid under those unlawfully approved clearance orders will now be reported on the prevailing wage survey that the state of Washington does.

[00:02:38] Speaker 03:
Actually, it's already been done.

[00:02:40] Speaker 03:
This prevailing wage survey happened at the end of 2023.

[00:02:42] Speaker 03:
Those prevailing wages are being calculated by the Washington Employment Security Department, which is the state workforce agency that works with DOL.

[00:02:55] Speaker 03:
What they do is release those findings in the late spring or the early summer So as we speak the prevailing wages that are going to control for 2024 are being calculated based on input tainted input

[00:03:11] Speaker 03:
from last year's prevailing wage survey because DOL allowed improperly depressed wages to be paid last year.

[00:03:21] Speaker 01:
So you would like us to tell DOL that they can't use those surveys because of the tainted data.

[00:03:27] Speaker 01:
What would they use instead?

[00:03:28] Speaker 03:
They don't have to throw out the surveys entirely.

[00:03:32] Speaker 03:
We've identified the improperly granted job orders.

[00:03:38] Speaker 03:
We've put in the record a massive declaration that does that.

[00:03:43] Speaker 03:
What they have to do is to tell DOL that they can't use improperly granted AWARE-only wages from these growers in calculating those prevailing wages.

[00:03:55] Speaker 03:
And when ESD does this survey, it knows who's responding.

[00:03:59] Speaker 03:
it can match a clearance order or a job order that's been improperly granted.

[00:04:05] Speaker 03:
And it can tell whether somebody is reporting having paid, for example, the A were only in a certain kind of apple because they were allowed to do so unlawfully by DOL.

[00:04:19] Speaker 04:
Let me follow up on that.

[00:04:21] Speaker 04:
Yes.

[00:04:21] Speaker 04:
So I kind of think of this case as you're arguing that, in a sense, the recipe

[00:04:29] Speaker 04:
that they're going to use going forward at a restaurant is bad.

[00:04:32] Speaker 04:
It's a bad recipe, and you want the recipe to be accurate.

[00:04:38] Speaker 04:
Normally in that situation, we would wait until someone orders the food at the restaurant to complain about how the food is being cooked.

[00:04:46] Speaker 04:
So I guess what I'm asking here is that do we have, I don't know, mootness and rightness at times?

[00:04:50] Speaker 04:
I get kind of confused as to which is which, but

[00:04:55] Speaker 04:
Two questions.

[00:04:56] Speaker 04:
One, is this the time to be complaining about rates that have not been put into effect yet?

[00:05:02] Speaker 04:
And then second, and we're going to have questions, I'm sure, for opposing counsel about this DOL regulation change.

[00:05:10] Speaker 04:
In light of those two things, I'm just trying to understand why is it now, why is this lawsuit about last year the one to determine what should be the recipe for this next year?

[00:05:23] Speaker 03:
The data set that is used to calculate, it's not the recipe.

[00:05:28] Speaker 03:
The food is rotten.

[00:05:30] Speaker 03:
The ingredients are rotten.

[00:05:33] Speaker 03:
The data set that is used to calculate the prevailing wage findings for 2024 is tainted by the fact that DOL allowed unlawful wages to be paid.

[00:05:45] Speaker 03:
And not just a small number of them, but a huge number.

[00:05:51] Speaker 03:
I mean, we reviewed the 192 relevant clearance orders, and 162 of them had this problem.

[00:05:58] Speaker 03:
That's an astounding number.

[00:06:00] Speaker 03:
The ingredients being used to make the food are bad and we know it, right?

[00:06:08] Speaker 03:
The process of calculating the prevailing wages for this year is tainted by the bad input.

[00:06:15] Speaker 01:
When you said that the state knows which order is which number,

[00:06:22] Speaker 01:
Do they communicate that in the survey in the way that the federal government could then take some of it out or do they need the state to help them figure out which things to take out?

[00:06:31] Speaker 03:
The federal government would likely need the state to help them.

[00:06:34] Speaker 03:
They would need to say, hey, you have the raw data.

[00:06:39] Speaker 03:
The raw data includes the name of the grower who's responding on the survey.

[00:06:44] Speaker 03:
And they can look at those and say, did this person report having paid the AWAR in an activity that had a published prevailing wage, in an activity that had a wage that was required to be paid that was higher than the AWAR last year?

[00:07:01] Speaker 01:
So do we have a problem that the state isn't here?

[00:07:04] Speaker 01:
Like, how do we know that the state will do what the federal government asks it to do?

[00:07:09] Speaker 03:
The state is the defendant in this case, but they aren't participating in this part of the appeal.

[00:07:20] Speaker 03:
The state is a contractor with DOL.

[00:07:24] Speaker 03:
The state is acting pursuant to the direction of the Department of Labor.

[00:07:31] Speaker 03:
The Department of Labor ultimately approves these wages.

[00:07:36] Speaker 03:
The state does some calculations and sends them over to the Department of Labor for approval So the Department of Labor can direct the state to take out wages that have been vacated by this court and it should So why don't we have a back wages claim in this case you there are 31,000 workers who have been underpaid 20 to 50 percent Why is that not part of this?

[00:08:03] Speaker 03:
because the defendant is the Department of Labor, and this is an APA case, and the remedy is to vacate the action of the Department of Labor and to order it to tell the growers that they paid unlawful wages.

[00:08:22] Speaker 03:
That opens up the possibility that workers will receive back pay, certainly.

[00:08:27] Speaker 03:
There are a couple of mechanisms for that.

[00:08:28] Speaker 03:
There's already an administrative system in the H-2A program that

[00:08:33] Speaker 03:
subjects growers to debarment if they don't pay the correct wages.

[00:08:38] Speaker 03:
So they'd be subject to debarment.

[00:08:39] Speaker 03:
They could decide for themselves whether they'd like to pay.

[00:08:42] Speaker 03:
And then workers could seek legal counsel and try to enforce their rights themselves.

[00:08:50] Speaker 03:
We've already said that that's hard and that's true, but some may be able to do it and may be able to send a message to the industry that back pay is the way to go to avoid further problems.

[00:09:02] Speaker 04:
Let me ask a follow-up question on that.

[00:09:05] Speaker 04:
So from an Article 3 standpoint, just help me understand the injury that you are alleging that your clients suffered and how the relief you're asking for now would redress that injury.

[00:09:19] Speaker 03:
Yes, so plaintiffs are U.S.

[00:09:23] Speaker 03:
workers who participate in the labor market, in the fruit harvest labor market in Washington.

[00:09:29] Speaker 03:
The statute and the regulations are designed to protect U.S.

[00:09:34] Speaker 03:
workers' wages from adverse effect.

[00:09:36] Speaker 03:
And the kind of standing we have in this case is competitor standing or opportunity standing.

[00:09:43] Speaker 03:
In fact, Judge Mendoza found that to be the case in the original preliminary injunction motion in this case.

[00:09:52] Speaker 03:
The harm to plaintiffs is that wages are pushed down in the market as a whole, and that US workers have fewer opportunities to do the jobs that they used to do at market rates.

[00:10:08] Speaker 03:
So I think it may be helpful to talk about what happens with these job orders.

[00:10:13] Speaker 03:
When a grower applies to be part of the H2A system, that grower submits a job order with the terms of the job.

[00:10:21] Speaker 03:
That job order is posted by the government and by the grower to try to recruit U.S.

[00:10:26] Speaker 03:
workers as a test of the U.S.

[00:10:28] Speaker 03:
labor market.

[00:10:30] Speaker 03:
Are there workers who are willing to do this job at these terms, on these terms?

[00:10:37] Speaker 03:
Workers look at that job order, they go to the work source office in Washington and they look at the job order and they say, Apple harvest at a flat

[00:10:49] Speaker 03:
$17.41 an hour, that's 30% lower than what I would make on the open market.

[00:10:55] Speaker 03:
This is not a job I'm willing to do, and I'm pushed out of that job.

[00:10:59] Speaker 03:
Now that sounds kind of benign because the assumption is they're going to go somewhere else and find another job.

[00:11:04] Speaker 03:
But as the use of the H2A system increases in Washington, and we've had a thousand percent

[00:11:10] Speaker 03:
increase in H2A since 2008.

[00:11:14] Speaker 03:
So first year of my career as a farm worker advocate, there were about 2,000 H2A workers.

[00:11:18] Speaker 03:
There are more than 35,000.

[00:11:20] Speaker 03:
So we're talking about more than a third of the hand harvest workforce at this point.

[00:11:26] Speaker 03:
These workers are not going to find real market wage rates.

[00:11:30] Speaker 03:
in many places anymore.

[00:11:32] Speaker 03:
And that is a harm in addition to the lowering of the wages across the market.

[00:11:38] Speaker 03:
The loss of opportunity at a certain wage is also a harm.

[00:11:41] Speaker 03:
And the organic statute is specifically designed to prevent that harm.

[00:11:47] Speaker 03:
It says we can't have adverse effect.

[00:11:50] Speaker 03:
to U.S.

[00:11:51] Speaker 03:
workers' wages and working conditions as a result of the H-2A program, which is exactly why this regulation exists.

[00:11:58] Speaker 03:
And I think this is a good opportunity to talk about what those wage rates actually look like.

[00:12:04] Speaker 03:
So in 2022, which is the last year that we have worker declarations in the record, the A were with $17.41 an hour.

[00:12:15] Speaker 03:
And that same year, the published prevailing piece rate for general apple harvest was $28.26 a bin.

[00:12:23] Speaker 03:
Now, bins are these big wooden boxes that workers pick apples into.

[00:12:30] Speaker 03:
And it's in the record, it's undisputed, that workers can pick about a bin an hour.

[00:12:35] Speaker 03:
So lucky for us, the math is easy.

[00:12:38] Speaker 03:
And workers should be making about $28.26 an hour.

[00:12:43] Speaker 03:
working at the piece rate.

[00:12:45] Speaker 03:
If they're paid VA were only, they're limited to $17.41.

[00:12:48] Speaker 03:
They lose $10, more than $10 an hour, and about 30% of their wages.

[00:12:58] Speaker 03:
Now, my client, Ramon Torres Hernandez, is not actually a person who was paid the A-word instead of a piece rate.

[00:13:07] Speaker 03:
What is he?

[00:13:08] Speaker 03:
He's a worker who participates in the local labor market, who wants to work for $28.26 an hour and not $17.41.

[00:13:16] Speaker 03:
And it becomes harder for him as a participant in the market to find a job that truly reflects that market wage.

[00:13:28] Speaker 03:
And I think it's extremely important for the court to understand that everybody in this case agrees that workers can earn more by the piece, that the piece rate gives the opportunity to earn more.

[00:13:43] Speaker 03:
And that the AWAR is the wage floor.

[00:13:48] Speaker 03:
for the H2A program.

[00:13:49] Speaker 03:
DOL says it in its briefing.

[00:13:51] Speaker 03:
DOL says it all the time in the Federal Register.

[00:13:54] Speaker 03:
At 75 Federal Register 6892, DOL says, the purpose of the AWARE, therefore, was to create a floor on the prevailing wage.

[00:14:05] Speaker 03:
It's totally clear that the higher wage here is the prevailing wage.

[00:14:15] Speaker 03:
These lower wages, when they're... Sorry, can I ask a question?

[00:14:20] Speaker 01:
If the new regulation comes out tomorrow, and it is what it was in the draft, would we be done?

[00:14:28] Speaker 03:
No, Your Honor.

[00:14:29] Speaker 03:
Thank you for that question.

[00:14:30] Speaker 03:
So the case absolutely is not moot if the regulation comes out tomorrow.

[00:14:35] Speaker 03:
The new regulation finally fixes the problem going forward.

[00:14:42] Speaker 03:
But it is not going to fix the taint in the calculations for the 2024 prevailing rages, because it's not going to act retrospectively.

[00:14:53] Speaker 01:
So you need us to order that DOL doesn't accept these surveys in order to fix that?

[00:15:01] Speaker 03:
Yes.

[00:15:03] Speaker 03:
We need you to order DOL that the wages that were unlawfully approved in 2023 are vacated for all purposes, including use in the future calculations or the current calculations of the prevailing wage survey.

[00:15:23] Speaker 03:
And that would also have the effect, of course, of allowing workers to collect back pay.

[00:15:30] Speaker 03:
Now, there could be a couple of mechanisms for that.

[00:15:34] Speaker 03:
Growers could pay voluntarily, or workers could seek some kind of a remedy.

[00:15:39] Speaker 04:
Do you want to reserve your time?

[00:15:41] Speaker 03:
I do.

[00:15:42] Speaker 03:
Very well.

[00:16:10] Speaker 00:
Good morning, Your Honors, and may it please the Court, John Drake, on behalf of the United States Department of Labor Defendants.

[00:16:18] Speaker 00:
Your Honors, one of the most striking aspects of this case is that it arrives in this Court in a rather convoluted procedural posture.

[00:16:26] Speaker 00:
And many of those procedural nuances implicate threshold jurisdictional issues that the Court can and must address before turning to the merits of the plaintiff's argument.

[00:16:37] Speaker 00:
I'll start by attempting to bring some clarity to that procedural posture.

[00:16:42] Speaker 00:
The top line here is that although the appeal that we have in front of us today was taken from a final judgment entered by the district court, the posture of the appeal is much more akin to an appeal of a denial of a preliminary injunction motion.

[00:16:59] Speaker 00:
Now, to be clear, we do not dispute that this court has proper appellate jurisdiction under 28 USC section 1291.

[00:17:07] Speaker 00:
But for reasons I'll explain, it really makes the most sense to view this appeal through the lens of a preliminary injunction appeal and to focus on the forms of relief that the plaintiffs are currently requesting.

[00:17:23] Speaker 00:
So the case initially arrived in this court on appeal from a denial of a preliminary injunction motion, as I said.

[00:17:31] Speaker 00:
That particular motion was the third P.I.

[00:17:34] Speaker 00:
motion that the plaintiffs filed over the course of nearly three years on a claim that they had asserted over two years earlier.

[00:17:42] Speaker 00:
after DOL had moved.

[00:17:43] Speaker 01:
So sorry, maybe let's cut to the chase.

[00:17:45] Speaker 01:
So your opposing counsel is arguing that the remedy on the table now is to order your client to not accept surveys that include the

[00:17:57] Speaker 01:
survey data that includes these wage orders that were based on the AOR instead of the peace rate.

[00:18:05] Speaker 01:
What is wrong with that remedy?

[00:18:08] Speaker 00:
Several things, Your Honor.

[00:18:09] Speaker 00:
First and foremost is that the plaintiffs did not request this relief in the district court below.

[00:18:14] Speaker 00:
The plaintiffs did mention

[00:18:16] Speaker 00:
this theory that there would be a corruption of the wage survey results.

[00:18:19] Speaker 01:
Well, at that point, they were trying to stop the original.

[00:18:23] Speaker 01:
I mean, we were before to the, so it was still in progress at that point.

[00:18:27] Speaker 01:
So I think they were trying to keep the surveys from affecting what you approved, because at the time, that was what the effect would be.

[00:18:37] Speaker 01:
Now it's the same sort of thing.

[00:18:38] Speaker 01:
It's just after, right?

[00:18:39] Speaker 01:
I'm not sure that's, like, why would they anticipate that the litigation would take this long and so ask for the thing that would need to be

[00:18:46] Speaker 00:
later the best answer to that question your honor is that the plaintiffs filed this preliminary preliminary injunction motion halfway through the 2023 harvest season so a lot of wages had already been paid at that point right and so the theory that this is all you know harm that's happening after the fact is not correct because if if plaintiffs are asking for

[00:19:10] Speaker 00:
this alleged corruption to be removed, the district court would have had to have gone back and said, OK, all those wages that have been paid prior to the date on which I hypothetically grant this motion need to be excluded from the prevailing wage survey.

[00:19:24] Speaker 00:
Now, I think it's also notable that the plaintiffs are now saying that this relief, excluding what they call AWARE-only wages from the wage survey, is, quote, part and parcel of the relief that they requested below.

[00:19:39] Speaker 00:
But if that were true now, it would also have been true back at the time that the parties were in the district court.

[00:19:47] Speaker 00:
There's really no explanation why this request has been made on appeal when it wasn't requested below.

[00:19:54] Speaker 02:
So what's your argument about what remedy do you think they are entitled to seek here based on their appeal, assuming that we think that the underlying claim is meritorious?

[00:20:04] Speaker 00:
Your honor, the plaintiff saying the reply brief that the relief they want first and foremost above and beyond this relief that we're talking about now is just a declaratory ruling that the department's interpretation of the regulation is wrong.

[00:20:19] Speaker 02:
And you think that we have authority to do that.

[00:20:22] Speaker 00:
I think that you do from a procedural standpoint.

[00:20:27] Speaker 02:
OK, are there any other remedies besides declaratory relief that you would agree the plaintiffs would be entitled to on this appeal if we ended up agreeing with them on the merits?

[00:20:38] Speaker 00:
Not on this record, Your Honor, no.

[00:20:41] Speaker 01:
And at the moment, the declaratory relief is not moot because the rule hasn't been promulgated, right?

[00:20:47] Speaker 00:
That's right.

[00:20:49] Speaker 01:
And what is the update on that?

[00:20:52] Speaker 00:
Thank you, Your Honor.

[00:20:53] Speaker 00:
As we noted in our letter brief filed on March 6, the rule is no longer in the proposed rule stage.

[00:21:03] Speaker 00:
The Department of Labor has submitted a final rule in draft form to the Office of Information and Regulatory Affairs, OIRA, which is an agency within OMB.

[00:21:16] Speaker 00:
The regulatory agenda on OIRA's website currently lists this month, April 2024, as the anticipated date by which that review will be completed.

[00:21:28] Speaker 00:
And so I think we are just weeks away from that.

[00:21:32] Speaker 01:
So I could not tell from your letter whether what was forwarded to OIRA was the same as the draft rule that had been put out for notice and comment.

[00:21:43] Speaker 00:
Correct, Your Honor.

[00:21:43] Speaker 00:
We deliberately did not include that information.

[00:21:46] Speaker 00:
It's not public.

[00:21:47] Speaker 00:
It's subject to the deliberative process privilege.

[00:21:50] Speaker 00:
I understand the reason why you're asking.

[00:21:52] Speaker 00:
I'm just not at liberty to explain what the draft rule contains.

[00:21:56] Speaker 01:
But so at the moment, we have no reason to think that this is about to become moot, because we don't even know if the regulation that you're wanting now is what they want.

[00:22:05] Speaker 00:
I don't think that's quite correct.

[00:22:07] Speaker 00:
I think that the proposed rule is exactly what they want.

[00:22:10] Speaker 00:
And as counsel conceded, it's finally fixing the problem going forward.

[00:22:15] Speaker 00:
It's contingent, of course, upon the final rule mirroring what was in the proposed rule.

[00:22:19] Speaker 00:
I do agree with that.

[00:22:21] Speaker 00:
I think our point is that we are very close to that final rule being issued.

[00:22:26] Speaker 00:
And it makes more sense for the court to wait a matter of weeks to determine whether

[00:22:31] Speaker 00:
It is, in fact, the same as the proposed rule, or if it is not.

[00:22:34] Speaker 02:
Does OIRA have a mandatory deadline to consider this, or could it kick it?

[00:22:40] Speaker 00:
Yes, they do, Your Honor.

[00:22:41] Speaker 00:
The executive order that establishes this review process says that OIRA has 90 days within which to issue a review decision.

[00:22:52] Speaker 00:
And that would be, I believe, late May on this record.

[00:22:56] Speaker 00:
But again, the regulatory agenda says that it's going to happen sooner.

[00:23:01] Speaker 00:
And so in furtherance of this discussion, I think it does make the most sense, given that what the plaintiffs really want, what they're asking for, first and foremost, is a review of DOL's interpretation of the regulation.

[00:23:14] Speaker 01:
Sorry, can I take you back to what on your view they needed to argue in the district court?

[00:23:19] Speaker 01:
So usually, when a case is there's standing, there's jurisdiction when it starts.

[00:23:28] Speaker 01:
It's harder for a case to become moot than it would have been to get it started in the first place.

[00:23:33] Speaker 01:
If there's any relief that is available, we're supposed to say the case is not moot.

[00:23:38] Speaker 01:
I'm not sure that that inquiry about whether any relief is available usually parses so finely what was asked for originally, because could any relief be given now?

[00:23:51] Speaker 01:
So why can't we look at the relief she's asking for now?

[00:23:55] Speaker 00:
I agree, Your Honor, that the effective relief line of cases do say that it doesn't need to be parsed that finely.

[00:24:02] Speaker 00:
But the cases that the plaintiffs cite in their brief and the cases that you're referring to are materially different.

[00:24:09] Speaker 00:
Those cases address a situation in which the relief that the plaintiffs originally requested is no longer available as a result of events happening throughout the course of the litigation.

[00:24:20] Speaker 00:
And the plaintiffs are then turning to the next best available relief.

[00:24:25] Speaker 00:
That's not what we have here.

[00:24:27] Speaker 00:
The plaintiffs are not saying that the relief they originally requested is no longer available.

[00:24:33] Speaker 01:
Well, I think they kind of are because originally they were asking for you to not approve the 2023 work orders that had this flaw.

[00:24:41] Speaker 01:
That's impossible now because the 2023 worker orders are done.

[00:24:44] Speaker 01:
So now they're saying at least don't consider those in the surveys that affect the 2024 wages.

[00:24:50] Speaker 01:
That seems like the best closest thing.

[00:24:53] Speaker 01:
I'm not sure I understand your answer.

[00:24:55] Speaker 00:
Well, to be clear, Your Honor, the plaintiffs still are asking for the same relief relative to the 2023 job orders.

[00:25:01] Speaker 00:
They are asking this court to vacate those job orders, retroactively vacate them.

[00:25:05] Speaker 01:
OK, well, so maybe we can't exactly do that.

[00:25:08] Speaker 01:
Maybe we won't give them everything they want.

[00:25:10] Speaker 01:
But why couldn't we do the part of it that has to do with incorporating that data into the 2024?

[00:25:16] Speaker 00:
Sure.

[00:25:17] Speaker 00:
And I think this is a good time to clear up some real confusion about what they're asking for relative to the exclusion of AWAR wages.

[00:25:26] Speaker 00:
It is a critically important point that the plaintiffs in this case are not

[00:25:31] Speaker 00:
H-2A workers.

[00:25:32] Speaker 00:
They are not the foreign workers who are coming in on H-2A visa and performing temporary agricultural work and then going back to their home countries.

[00:25:40] Speaker 00:
They are domestic workers.

[00:25:43] Speaker 00:
And to judge Owen's point earlier, the relief they are asking for at this point is to essentially order H-2A employers to pay back wages to H-2A employers.

[00:25:55] Speaker 00:
No, no.

[00:25:56] Speaker 01:
They're asking for you to exclude this data from the 2024

[00:26:01] Speaker 01:
orders that get approved so that they won't have foreign competitors getting paid too little?

[00:26:07] Speaker 00:
Correct.

[00:26:08] Speaker 00:
That is what they're asking.

[00:26:09] Speaker 00:
The important point relative to the prevailing wage survey that the state employment security department performs is that that survey is only capturing wages paid to domestic workers.

[00:26:23] Speaker 00:
Employers are not supposed to report wages that are paid to H2A workers because that would

[00:26:28] Speaker 00:
confound the whole analysis.

[00:26:30] Speaker 00:
The idea is to get a survey of wages paid in the domestic labor market so that wages paid to H2A employees will not undercut those wages.

[00:26:40] Speaker 00:
And so this idea that the prevailing wage survey is going to be fundamentally corrupted is just not accurate.

[00:26:48] Speaker 00:
And this is addressed on pages 37 to 39 of our answering brief.

[00:26:54] Speaker 00:
There are about six different

[00:26:56] Speaker 00:
links in the causation chain that would have to happen for the corruption that they're talking about to occur.

[00:27:02] Speaker 00:
Each one more and more attenuated.

[00:27:04] Speaker 00:
And most importantly would have to happen on such a pervasive scale that these corrupt wages are determined to become the prevailing wage for the entire crop activity.

[00:27:18] Speaker 01:
Now, I think to judge... So I think their theory must be that the domestic workers for some of these farms that had these orders where they were able to pay the foreign workers lower than what they say they should have, that the domestic workers were also paid that.

[00:27:33] Speaker 01:
That must be part of their theory, right?

[00:27:34] Speaker 01:
Are you saying that didn't happen?

[00:27:37] Speaker 00:
I don't think that's what they are saying, Your Honor, and we addressed this in our briefing.

[00:27:42] Speaker 00:
The plaintiffs have not shown that any domestic US workers were working for the same employers that are paying these H2A

[00:27:52] Speaker 00:
workers H2A wages.

[00:27:54] Speaker 00:
Had domestic workers been working alongside H2A workers in what's called corresponding employment, that employer would have been required to pay the same wage to both sets of workers.

[00:28:06] Speaker 00:
But on this record, there's just no evidence that that, in fact, occurred.

[00:28:09] Speaker 00:
And it's fatal, frankly, to their Article III standing to pursue

[00:28:13] Speaker 00:
these additional forms of relief that we're talking about.

[00:28:16] Speaker 02:
So are you saying then that what your colleague argued with respect to 31,000 workers being paid 20 to 50 percent less, 162 employers not following the appropriate prevailing wage regulation, are you saying that's just not true?

[00:28:37] Speaker 00:
I'm saying it's pervasively misleading, Your Honor, and let me explain why.

[00:28:43] Speaker 00:
The number of workers that the plaintiffs are saying are impacted, some 31,000, is based upon the total number of workers in the aggregate that these H2A employers sought labor certifications for.

[00:29:00] Speaker 00:
Those job orders, importantly, are not typically just for one crop activity.

[00:29:06] Speaker 00:
They are covering many, many, many different activities from harvesting, which we're concerned with in this case, to pruning, to thinning trees, et cetera, and of course, cover all different types of crops, apples, berries, oranges, et cetera.

[00:29:22] Speaker 00:
The easiest way to illustrate this point is by using an example from the declaration that opposing counsel referenced earlier.

[00:29:30] Speaker 00:
At 2ER78, there is a job order that was submitted by Upland Farms.

[00:29:38] Speaker 00:
This is paragraph 23 of the Hernandez-Jimenez declaration.

[00:29:42] Speaker 00:
There's a hyperlink there, and you need to click it.

[00:29:45] Speaker 00:
When you click that job order, you'll see that it covers 227 workers.

[00:29:50] Speaker 00:
The employer is saying, I have enough work to keep 227 workers busy.

[00:29:55] Speaker 00:
I will try to get those workers from the domestic labor pool.

[00:29:58] Speaker 00:
But if I can't, I need to hire H2A workers to fill those spots.

[00:30:03] Speaker 00:
The job order covers 36 different crop activities, from harvesting to thinning to pruning of cherries, pears, grapes, et cetera.

[00:30:14] Speaker 00:
The plaintiffs, in this case, are focused on one.

[00:30:17] Speaker 00:
One of those 36 crop activities, harvesting of rainier cherries, in this example.

[00:30:25] Speaker 00:
The other 35 activities that are covered by that job order are not at issue, and under plaintiffs' theory, were properly approved.

[00:30:33] Speaker 00:
And so it's really not accurate to say that

[00:30:35] Speaker 00:
that particular job order or all the job orders that they've cited are impacting 227 workers.

[00:30:42] Speaker 00:
Because obviously not all 227 of those workers are performing that one single crop activity out of the 36.

[00:30:50] Speaker 00:
And relatedly, the plaintiffs say in their briefing that almost 85% of fruit harvest job orders submitted for the state of Washington were unlawfully approved.

[00:31:03] Speaker 00:
along the same lines, they're counting that entire job order.

[00:31:07] Speaker 00:
And the example I just mentioned is having been unlawfully approved, even though only one of the 36 crop activities covered by that job order is implicating this issue that we're talking about.

[00:31:18] Speaker 00:
And so I think it is important to

[00:31:21] Speaker 00:
This is not something that was addressed in the district court because, again, the proceedings were very superficial on a preliminary injunction motion addressed primarily to

[00:31:35] Speaker 00:
the preliminary injunction factors, primarily whether the plaintiffs were facing irreparable harm.

[00:31:41] Speaker 00:
And so these are the types of issues that would have been fleshed out had the case continued in the district court.

[00:31:48] Speaker 01:
I'm pretty confused, I must admit, because I thought they were saying there are workers side by side.

[00:31:52] Speaker 01:
You're saying there aren't.

[00:31:54] Speaker 01:
What if we say they're right about the statute and if it's possible to parse these job orders out of the surveys, that would be a remedy that would keep this from being moot and then send it back to the district court to figure out who's right about whether workers are side by side and whether it can be parsed.

[00:32:11] Speaker 01:
Is there any problem with that?

[00:32:13] Speaker 00:
I think the first problem is that on the current record, it's not possible.

[00:32:16] Speaker 00:
Because while it is theoretically possible for domestic workers to be working in corresponding employment with H2A employers, there is no evidence of record in this case to establish that that has happened.

[00:32:29] Speaker 00:
So the plaintiffs could have filed declarations saying, I work for Upland Farms.

[00:32:35] Speaker 00:
They employed me.

[00:32:37] Speaker 00:
10 other US workers in addition to 217 H2A workers.

[00:32:43] Speaker 00:
But there is no evidence along those lines.

[00:32:47] Speaker 00:
If the court is inclined to have these nuanced issues fleshed out, I do think it would be most appropriate for the district court to do that, because it is important, of course, to have a developed factual record.

[00:33:01] Speaker 00:
And it's also important to note, let's not forget, that what the plaintiffs are requesting here in the way of

[00:33:07] Speaker 00:
forward-looking relief is mandatory injunctive relief.

[00:33:12] Speaker 00:
And that's subject to a doubly demanding burden under this court's precedent, the Garcia v. Google case that we cited in our briefing.

[00:33:20] Speaker 00:
And it's frankly not appropriate, appropriate use of judicial resources for this court to engage in that sort of analysis with that high evidentiary burden on a record that's not fully developed.

[00:33:36] Speaker 00:
I'd like to turn just briefly to the other new form of relief the plaintiffs are seeking on appeal, and that's the payment of back wages.

[00:33:47] Speaker 00:
And I use that as a shorthand.

[00:33:49] Speaker 00:
What the plaintiffs are really asking is for this court to order the Department of Labor to require H2A employers to go back and pay.

[00:33:56] Speaker 01:
It didn't really sound like your opposing counsel is asking for that today, as I understood her argument.

[00:34:03] Speaker 00:
I agree that it was not covered by her argument.

[00:34:05] Speaker 00:
However, it is something that they requested in their briefing.

[00:34:08] Speaker 00:
And so I think it's important to note that, again, plaintiffs did not request this relief below.

[00:34:15] Speaker 00:
And in fact, they expressly disclaimed any intent to pursue payment of back wages in the district court.

[00:34:23] Speaker 00:
They said they had no practical path to obtain this relief and that it would not remedy their harm in any event.

[00:34:30] Speaker 00:
And they said that in connection with each of the three different preliminary injunction motions that were filed.

[00:34:36] Speaker 00:
3ER401, SER164165, and SER55.

[00:34:46] Speaker 00:
So this relief has been clearly waived by expressly conceding that they're not seeking it.

[00:34:53] Speaker 00:
But it's a little more sinister than that, frankly, because the plaintiffs made a strategic decision not to request

[00:34:59] Speaker 00:
this relief.

[00:35:01] Speaker 00:
They actually convinced the district court to issue a preliminary injunction based on that argument back in March of 2021.

[00:35:08] Speaker 00:
And so the fact that the plaintiffs are saying, we can't get this relief, that's why we need injunctive relief now, the district court agreed with them, and they're now taking the opposite position on appeal, is frankly a classic judicial estoppel problem.

[00:35:26] Speaker 00:
In the short time that I have remaining, I will just note that what we're talking about here is a small corner of the prevailing, excuse me, of the H2A regulations.

[00:35:36] Speaker 00:
It is not the case that prevailing wage rates are always validated at a piece rate prevailing wage.

[00:35:44] Speaker 00:
It's more common for them to be hourly wages.

[00:35:48] Speaker 00:
And when the piece rate wage is an hourly wage, it's an easy comparison to the AWAR, which is always an hourly wage.

[00:35:54] Speaker 00:
Compare the two numbers, whichever is higher.

[00:35:56] Speaker 00:
We have here a unique circumstance where prevailing wage rates are, in some cases, validated at a piece rate wage, which has the potential to yield higher wages.

[00:36:07] Speaker 00:
And the Department of Labor, again, is in the process of amending the regulation to reflect that those wages ought to be offered in the job order.

[00:36:15] Speaker 00:
Thank you.

[00:36:16] Speaker 04:
All right.

[00:36:16] Speaker 04:
Thank you, Council.

[00:36:28] Speaker 03:
Your Honors, I want to first correct the statement that workers filed this motion after the harvest season.

[00:36:35] Speaker 03:
Workers filed this motion during the first harvest season, which was cherry, and certainly well before cherry ended and before pear and apple harvest happened.

[00:36:46] Speaker 03:
Judge Owens, I want to go back to a question you asked, which is, aren't we too early to be challenging bad findings?

[00:36:53] Speaker 03:
We need a declaration that DOL's actions here were unlawful and those wages that they approved were unlawful if we're going to challenge the bad findings in the future.

[00:37:04] Speaker 03:
So this court should not wait.

[00:37:06] Speaker 03:
to say that DOL at a minimum has been violating this regulation when it has been improving these wages, because that's what we would need in order to challenge bad wages when they come out.

[00:37:17] Speaker 03:
Now, I want to talk about this interplay between domestic workers and H2A workers.

[00:37:26] Speaker 03:
It is the duty of an H2A employer and the duty of the government to recruit as many U.S.

[00:37:31] Speaker 03:
workers as possible under a job order before allowing for H2A workers to be brought in.

[00:37:38] Speaker 03:
Corresponding workers, U.S.

[00:37:40] Speaker 03:
corresponding workers, do work on these farms.

[00:37:45] Speaker 03:
And the survey instrument that ESD uses to do this survey asks employers to answer the questions as to its non-H2A workers, but as to the other workers who work on its farm.

[00:38:01] Speaker 03:
If the employer is an H2A worker, excuse me, an H2A employer, that employer pays the same wage

[00:38:09] Speaker 03:
to H2A workers and corresponding workers.

[00:38:13] Speaker 03:
And so when that employer answers the questions about what wages it has paid for the year, that employer says that it has paid those wages that were included in the H2A contract even to its domestic workers.

[00:38:31] Speaker 01:
That's how... The government is saying you haven't shown any evidence that the particular farms

[00:38:37] Speaker 01:
had both types of workers.

[00:38:38] Speaker 01:
So do you have a response to that?

[00:38:40] Speaker 01:
I mean, you're saying in general this is how it should be, but is there evidence?

[00:38:46] Speaker 03:
It is how they, that there isn't specific evidence in the record.

[00:38:50] Speaker 03:
It is how the system works.

[00:38:54] Speaker 03:
Any employer who is using any H2A workers is required to actively recruit U.S.

[00:39:01] Speaker 03:
workers.

[00:39:02] Speaker 03:
We have a robust U.S.

[00:39:04] Speaker 03:
workforce in Washington among farm workers.

[00:39:08] Speaker 03:
Now it is possible that there is a farm that recruited no U.S.

[00:39:12] Speaker 03:
workers.

[00:39:13] Speaker 03:
This is possible.

[00:39:14] Speaker 03:
it is unlikely that that is the case because the system doesn't work that way.

[00:39:20] Speaker 03:
And we don't have to know whether each farm actually had corresponding workers to get effective relief to the market harm here.

[00:39:31] Speaker 03:
this court can order that the AWARE-only wages, the improperly approved AWARE-only wages, are rescinded in those job orders.

[00:39:42] Speaker 03:
And then ESD can parse the data.

[00:39:46] Speaker 03:
ESD knows the name of the employer who answered the wage question, and it knows the activity for which that employer is answering the question.

[00:39:54] Speaker 03:
And it can see whether that employer is answering using the AWARE,

[00:40:00] Speaker 03:
or some other piece rate or some other wage, hopefully the prevailing piece rate, right?

[00:40:07] Speaker 03:
And it can remove AWARE-only answers for an employer who was in fact required to offer a prevailing piece rate in that job order in the first place.

[00:40:19] Speaker 03:
Now, we don't have to know exactly who those employers are to know that we are securing the integrity of the data.

[00:40:28] Speaker 03:
by doing that, by making that order.

[00:40:35] Speaker 03:
Thank you.

[00:40:37] Speaker 04:
Thank you very much to both counsel for their briefing and argument in this case.

[00:40:40] Speaker 04:
This matter is submitted and a couple of us will be back tomorrow.

[00:40:45] Speaker 04:
Thank you again Judge Orrick for pitching in.

[00:40:48] Speaker 04:
Very appreciated.

[00:40:49] Speaker 04:
And for those who are going to be attending the functions later today, stay tuned.

[00:40:54] Speaker 04:
We have some guest speakers who I think are going to be speaking to you while we conference.