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BNA DAILY LABOR REPORT
December
18, 2007
NINTH CIRCUIT REJECTS LATEST ATTEMPT BY GLOBAL HORIZONS TO BLOCK DOL
DEBARMENT
By Susan J. McGolrick
A federal district court properly denied farmworker supplier Global
Horizons
Inc.'s motion for a preliminary injunction to stay the Labor
Department's action
blocking the company's H-2A visa applications for three years, the U.S.
Court of
Appeals for the Ninth Circuit ruled Dec. 13.
A Department of Labor administrative law judge denied Global Horizons's
request for a hearing to challenge the July 2006 debarment notice,
finding that the request was
untimely and that the company was not entitled to equitable tolling.
The U.S. District Court for the Central District of California denied
Global Horizons's request for a preliminary injunction, finding that the
company failed to show a strong likelihood of success on the merits of
its claim that the ALJ's decision was arbitrary and capricious in
violation of the Administrative Procedure Act.
"The only real issue ... was whether the ALJ articulated a sufficiently
rational explanation for the decision," Judge J. Clifford Wallace wrote
for the appeals court. He found that "[t]he district court correctly
held that Global Horizons had not raised serious questions going to the
merits of this issue, given the 19 pages of in-depth rational analysis
provided by the ALJ."
Judges Thomas G. Nelson and N. Randy Smith joined in the opinion.
Applicant Must Seek DOL Certification.
Global Horizons, which is headquartered in Los Angeles, provides
temporary agricultural workers from other countries to work on farms in
the United States through the H-2A visa program. As part of the
application process, the company has to obtain DOL certification that
there are insufficient American workers to perform the specified
agricultural work and that the employment of aliens would not adversely
affect the wages and working conditions of similarly employed American
workers.
In the July 27, 2006, debarment notice, DOL said it will deny all future
H-2A visa applications filed by Global Horizons for a three-year period.
The agency found that the company had improperly sought DOL
certification regarding 200 foreign workers when the company did not
have a contractual relationship with an American farmer who had
agricultural work available. DOL also found that Global Horizons
"knowingly provided false information regarding the termination of the
employment of U.S. workers."
The DOL notice informed Global Horizons that it had the right to request
"an expedited administrative review or a de novo hearing" by an ALJ and
that the request had to be made within seven calendar days of the date
of the notice. The company filed a request late -- eight days after the
date it had received the notice.
After asking the parties to submit supplemental briefs on whether Global
Horizons was entitled to equitable tolling of the deadline, an ALJ on
Nov. 30, 2006, issued a 19-page decision and order denying the company's
untimely request. The ALJ found that the company was not entitled to
equitable tolling because Congress intended that H-2A matters be handled
in an expedited manner and that DOL had set numerous deadlines to meet
that goal. The ALJ also found that Global Horizons was familiar with the
expedited process and that the company failed to offer any satisfactory
explanation for its failure to meet the filing deadline.
The ALJ on Dec. 26, 2006, denied Global Horizons's emergency application
for a stay of the debarment. The company sued DOL the same day in the
district court, alleging that the ALJ ruling was arbitrary and
capricious in violation of the APA, and on Jan. 4 filed an application
for a temporary restraining order or a preliminary injunction. The
district court denied the application Jan. 8, finding that Global
Horizons failed to show a likelihood of success on the merits or the
existence of serious questions regarding the merits, and the company
thereafter filed a notice of appeal.
ALJ Need Only Provide Rational
Explanation.
Under the APA, "the district court could set aside the ALJ's decision
only if it was 'arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,' " Wallace said. He found that the
ALJ's ruling must be upheld if it articulates a rational connection
between the facts found and the conclusions made.
According to Wallace, Global Horizons argued that the district court
abused its discretion by denying the requested injunction because there
are serious legal questions about the ALJ's choice of equitable tolling
as the legal standard to apply under the circumstances of the case.
"The question for the district court ... was not whether Global Horizons
had raised serious legal issues with respect to the substance of the
ALJ's equitable tolling analysis," Wallace said. He found that the
district court correctly considered if the company raised serious
questions "whether the ALJ articulated a sufficiently rational
explanation for the decision" and correctly concluded that the company
failed to raise serious questions regarding the merits of that issue.
Global Horizons objected that the district court failed to consider the
other criteria for issuing injunctive relief. However, Wallace found
that "[w]hen, as here, a party has not shown any chance of success on
the merits, no further determination of irreparable harm or balancing of
hardships is necessary." He said the same rule applies to the fourth
criteria -- whether the public interest would be advanced by issuing an
injunction.
Global Horizons argued that the length of the debarment conflicts with
DOL regulations. But Wallace found that the company waived the argument
by failing to raise it in a timely request for an ALJ hearing.
Although the district court might have had jurisdiction to consider the
company's constitutional challenges to the applicable DOL regulations,
the company "provided only a conclusory one-sentence argument for each,"
and the district court therefore did not abuse its discretion by not
addressing those arguments in its order, Wallace said.
Finally, Wallace observed that in the 11 months since Global Horizons
filed its appeal, "the company has taken very few steps" to pursue a
permanent injunction from the district court. "Given the purported
urgency of Global Horizons' claims, the company would have been better
served to pursue aggressively its permanent injunction claim in the
district court, rather than apparently awaiting the outcome of this
appeal," Wallace said.
Global Horizons Involved in
Other Litigation.
In a class action brought on behalf of more than 700 local workers, a
federal court jury found this past October that Global Horizons violated
Washington's Farm Labor Contractors Act by providing jobs to foreign,
rather than local,workers and by discriminating against the local
workers because of their race in violation of the Civil Rights Act of
1866 (42 U.S.C. § 1981) and the Washington Law Against Discrimination.
The jury awarded $ 300,000 in punitive damages and over $ 17,000 in back
pay and emotional distress damages to three named plaintiffs.
In the class action, the district court previously had assessed nearly
$1.857 million in statutory damages against Global Horizons for
violation of the FLCA and the federal Migrant and Seasonal Agricultural
Worker Protection Act. The district court also levied $39,500 in
sanctions against the company and its president, Mordechai Orian, for
failing to cooperate in discovery.
Global Horizons initially agreed to pay $ 300,000 to settle a DOL action
accusing the company of underpaying 88 Thai workers that the company
sent to work in Hawaii after obtaining H-2A visas for them to work in
Arizona. But the company objected to DOL's characterization of the
settlement, refused to pay, and threatened to file a defamation suit.
California officials started administrative proceedings in August 2006
to revoke Global Horizons's state contractor license. The company then
sued a California blueberry grower for allegedly firing Global-provided
workers and replacing them with illegal immigrant workers.
In April 2006, Global Horizons signed a nationwide collective bargaining
agreement with the United Farm Workers covering H-2A visa holders
providing for employer-paid health care, seniority and grievance
procedures, a 2 percent increase over federally required minimum wage
rates, and paid work breaks.
Kari E. Hong of Portland, Ore., represented Global Horizons. Assistant
U.S. Attorney Ira
A. Daves in Los Angeles represented
DOL.
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