A federal judge has declined to set aside the Biden administration’s H-2A rule issued last year, rejecting a request for a preliminary injunction sought by the National Council of Agricultural Employers.
U.S. District Judge Rudolph Contreras also delivered a body blow to NCAE’s future prospects of unseating the regulations, finding that the group had “failed to demonstrate a substantial likelihood of success on the merits of its claim that the 2022 rule was unlawfully promulgated.”
The rule was published with modifications last year after having been withdrawn by the Biden administration Jan. 20, 2021, the first day it came into office. The previous administration, including the Labor Department and USDA, had published a version of it online Jan. 15, but it never appeared in the Federal Register or its pre-publication version, known as “public inspection.”
NCAE said the Labor Department should have provided an opportunity to comment on the withdrawal, but Contreras said it had not been able to demonstrate a “substantial likelihood” that notice-and-comment requirements applied to the rule posted online, which, as Contreras noted, plainly stated it was not the “official regulation.”
NCAE argued that sharp increases in the cost of surety bonds required for farm labor contractors justified its injunction request, but U.S. District Judge Rudolph Contreras said the evidence didn’t amount to a showing of “irreparable harm.”
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NCAE “provides loss estimates for three of its members, but fails to provide any information placing the alleged losses in the context of the companies’ overall finances,” Contreras said.
NCAE was able to demonstrate “that its members’ concrete interests are adversely impacted by the alleged procedural injury, (but) it has not done enough to clear the much higher bar of demonstrating irreparable harm for purposes of obtaining a preliminary injunction,” the judge said.
NCAE Executive Director Michael Marsh said Thursday he was “very disappointed” in the ruling and that NCAE counsel would be meeting with their Justice Department counterparts to discuss what happens next in the case.
He also said NCAE expects the Labor Department to issue its final Adverse Effect Wage Rate rule soon, since it has cleared review by the Office of Management and Budget.
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