U.S. District Court Enjoins Obama H2-A Rule

A Federal District Court in North Carolina recently issued a preliminary injunction prohibiting the U.S. Department of Labor (DOL) from suspending the H2-A rule, issued last December.  The preliminary injunction reinstates the Bush rule, which would have been suspended July 1, and halts DOL from reinstating the H2-A rules that were in effect previously.  This preliminary ruling is the latest – but not the last – in a series of developments over the H2-A program.  It represents, at least temporarily, a victory for advocates of reform of the H2-A program.  The ruling, however, is largely confined to how DOL went about suspending the December 2008 H2-A rule and reinstating the old rule, and does not speak to the merits of either rule.  Those issues – in particular the Adverse Effect Wage Rate (AEWR) methodology employed by DOL under the December rule – are being contested in another lawsuit brought by Unite Farm Workers (UFW) that is pending in the Federal District Court in Washington, DC.  AFBF, while not a party to the lawsuit in North Carolina, has filed a motion to intervene in the court case in Washington, DC.  The court has not ruled on AFBF’s motion.  The UFW recently filed a request for summary judgment on the wage portion of the December H2-A rule.  It is unclear what impact the ruling in North Carolina will have on that case.  While not a victory on the merits of the substance of the December H2-A rule, the North Carolina ruling is nonetheless a major win.  The case provides a positive outcome on the Administrative Procedures Act (APA), a statute that governs all federal rulemaking.  We will keep states appraised of any appeals or other developments as they occur.

Lynn Snyder 

Lynn Snyder is senior director of communications for Ohio Farm Bureau.