JUDICIAL:

MIGUEL GARCIA, et al., Plaintiffs, v. R. ALEXANDER ACOSTA, et al., Defendants., No. CV 18-1968 (RDM), 2019 WL 2581324 (D.D.C. June 24, 2019)
The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., permits employers to hire temporary foreign workers “to perform agricultural labor or services” in the United States. 8 U.S.C. § 1101(a)(15)(H)(ii)(a). To hire a temporary foreign worker under this program—known at the H-2A visa program—an employer must petition the Secretary of Labor “for a certification that [1] there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed,” to perform the work, and, “[2] the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.” Id. § 1188(a). As required by the INA, the Secretary of Labor has promulgated implementing regulations to govern the “process by which the Department of Labor” issues such certifications. 20 C.F.R. § 655.103(a); see also id. § 655, subpart B (regulations governing H-2A visa program). These regulations require, among other things, that “employer[s] … offer, advertise in [their] recruitment, and pay a wage that is the highest of” four wage measures specified in the regulations. Id. § 655.120(a); see also id. § 655.122(l)(1). At issue in this case is one of those four measures known as “the prevailing hourly wage.”
Plaintiffs—four agricultural workers and a farmworkers labor union—bring this action against the Secretary of Labor and the Departmentof Labor (collectively, “the Secretary”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. They allege that the Secretary has a policy and practice of certifying employers to hire H-2A workers at wages lower than the applicable prevailing wages, and they challenge the grant of five specific certifications.  Plaintiffs contend that the Secretary’s policy and practice of granting certifications that fail to comply with the existing regulations constitutes a de facto amendment to the regulations, without observance of the APA’s notice and comment procedures, and that this policy and practice and the Secretary’s decision to issue the five specific certifications is arbitrary and capricious and contrary to the Department’s own regulations.
The matter is before the Court on Defendants’ motion to dismiss for lack of subject-matter jurisdiction, or, in the alternative, to transfer the case to the U.S. District Court for the Northern District of Illinois or to stay the case. Dkt. 9. Defendants argue that the case should be dismissed because Plaintiffs’ challenges to the five specific certifications are moot and their policy and practice claims are unripe.  If the Court declines to dismiss the action, Defendants request that the Court transfer the case to the Northern District of Illinois—where the Department of Labor’s Chicago National Processing Center is located—or, at the very least, stay the case to provide the Secretary with time to initiate a rulemaking to “modernize” the H-2A visa program.  For the reasons explained below, the Court will grant in part and deny in part Defendants’ motion to dismiss. The Court will grant the motion to dismiss with respect to Plaintiffs’ wrongful certification claims and will deny the motion with respect to Defendants’ policy and practice claims. The Court will also deny Defendants’ motion to transfer or to stay the case.
LYNN MOORE, et al., Plaintiffs, v. TRADER JOE’S COMPANY, Defendant. Additional Party Names: Jeffrey Akwei, Shanque King, No. 4:18-CV-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019)
Plaintiffs claim that two of the Product’s representations contributed to their alleged injuries: (1) the statement “100% New Zealand Manuka Honey” or “New Zealand Manuka Honey” on the Product’s front label; and (2) the “ingredient statement,” which lists “manuka honey” as the only ingredient.  Plaintiffs allege that tests of Product samples purportedly purchased by Plaintiffs Moore and Akwei showed between 57.3% and 62.6% of the pollen in the tested honey was from the manuka flower, with the remainder from other floral sources. Plaintiffs allege that Trader Joe’s sales and marketing practices for the Product violate consumer protection and similar laws of all fifty states and the District of Columbia. Plaintiffs contend that the state laws mirror federal law regulating food labeling deception and food adulteration. As a result, Plaintiffs allege that Defendant’s honey is mislabeled and falsely advertised as pure Manuka honey when it should be labeled as a “Manuka-based honey blend.”  Defendant’s motion to dismiss was granted without leave to amend, because any amendment would be futile.
JOHN WAHRMUND d/b/a WAHRMUND FARMS PLAINTIFF v. TERRY BUSCHMAN, RYAN BUSCHMAN, & CATTLE CONNECTIONS, LLC f DEFENDANTS AND TERRY BUSCHMAN; & RYAN BUSCHMAN COUNTER-CLAIMANTS, No. 4:16-CV-00137-KGB, 2019 WL 2590863 (E.D. Ark. June 24, 2019)
On June 21, 2019, the Court conducted a pretrial conference with counsel for plaintiff/counter-defendant John Wahrmund d/b/a Wahrmund Farms (“Wahrmund”) and counsel for defendants/counter-claimants Terry Buschman, Ryan Ruschman (collectively the “Buschmans”). The Court notes that cross-defendant Cattle Connections, LLC (“Cattle Connections”) remains unrepresented in this matter and did not appear at the pretrial conference. The Court made the following rulings and addressed the following matters. If the parties and their counsel believe that a door has been opened for introducing the evidence, testimony, and argument addressed and excluded by this Order, counsel are directed to approach the Court before introducing or eliciting such evidence, testimony, or argument before the jury. Before introducing any evidence, testimony, or argument regarding the matters the Court takes under advisement in this Order, counsel are directed to approach the Court and seek a ruling before introducing or eliciting such evidence, testimony, or argument before the jury.

Valero Energy Corp. v. Envtl. Prot. Agency, No. 18-1028, 2019 WL 2587837 (D.C. Cir. June 25, 2019)

The Energy Independence and Security Act of 2007 contains a citation to nowhere. The Act requires gasoline sold in the United States to include a certain amount of renewable fuel, and tasks the Environmental Protection Agency with conducting periodic reviews to enable appropriate adjustments to the renewable–fuel requirements. In setting out EPA’s periodic-review obligation, the statute directs the agency to examine certain requirements ostensibly set out in a referenced provision of the Clean Air Act. The cited provision, though, does not exist.
In an effort to make sense out of nonsense, EPA issued a document setting forth its interpretation of the periodic-review provision and explaining why it believes it has complied. Valero Energy Corporation, a petroleum refiner, took issue with EPA’s position in the document and filed a petition for review in this court. The Court concludes that the EPA document does not constitute final agency action. The Court therefore dismiss Valero’s petition for lack of jurisdiction.

REGULATORY:
Correcting amendment: Animal and Plant Health Inspection Service, USDA; In a final rule that was published in the Federal Register on March 25, 2019, and effective on April 24, 2019, we amended the regulations by changing the requirements for records needed to trace animals and by adding provisions to link official individual animal identification applied by persons other than the flock owner to the flock of origin in the National Scrapie Database rather than just the person who applied the official identification. This document corrects an error in that final rule. Info HERE

Final rule: Commodity Credit Corporation and Farm Service Agency, USDA; This final rule implements the requirements of the dairy programs administered by the Farm Service Agency (FSA) on behalf of the Commodity Credit Corporation (CCC). The Dairy Margin Coverage (DMC) Program, as authorized by the Agriculture Improvement Act of 2018 (2018 Farm Bill), replaces the Margin Protection Program (MPP-Dairy) for dairy producers and retains much of the structure of MPP-Dairy. DMC is a margin-based support program for dairy producers that provides risk management coverage that will pay producers when the difference between the national price of milk and the national estimated cost of feed (the margin) falls below a certain level. The rule also extends the Dairy Indemnity Payment Program (DIPP) through 2023 and amends the regulations to incorporate a specific period of time for which claims for the same loss will be eligible for indemnification under DIPP. Info HERE

Final rule: Foreign Agricultural Service and Commodity Credit Corporation (CCC), USDA; This final rule modifies the certifications required to qualify to participate in the Export Credit Guarantee (GSM-102) Program and the Facility Guarantee Program (FGP) to make them consistent with Government-wide debarment and suspension guidelines and U.S. Department of Agriculture requirements. Specifically, CCC is eliminating the requirement for participants to make certain certifications with respect to affiliates. Info HERE

Final rule: Commodity Credit Corporation and Farm Service Agency, USDA; This final rule implements the requirements of the dairy programs administered by the Farm Service Agency (FSA) on behalf of the Commodity Credit Corporation (CCC). The Dairy Margin Coverage (DMC) Program, as authorized by the Agriculture Improvement Act of 2018 (2018 Farm Bill), replaces the Margin Protection Program (MPP-Dairy) for dairy producers and retains much of the structure of MPP-Dairy. DMC is a margin-based support program for dairy producers that provides risk management coverage that will pay producers when the difference between the national price of milk and the national estimated cost of feed (the margin) falls below a certain level. The rule also extends the Dairy Indemnity Payment Program (DIPP) through 2023 and amends the regulations to incorporate a specific period of time for which claims for the same loss will be eligible for indemnification under DIPP. Info HERE

Notice of open public meetings: U.S. Department of Agriculture (USDA), Food, Nutrition, and Consumer Services; Department of Health and Human Services; The Departments of Agriculture and Health and Human Services announce the second and subsequent meetings of the 2020 Dietary Guidelines Advisory Committee (the Committee). These meetings will be open to the public. The period for written public comments to the Committee, which opened on March 12, 2019, will remain open throughout the Committee’s deliberations. The public is invited to provide oral comments at two of the Committee’s meetings. Info HERE

Final rule; request for comments: Rural Utilities Service, USDA; The Rural Utilities Service (RUS), an agency of U.S. Department of Agriculture, is amending its regulations on Electric and Telecommunications Standards and Specifications for Materials, Equipment and Construction, to make changes to Bulletin 1728F-700, RUS Specification for Wood Poles, Stubs and Anchor Logs; Bulletin 1728H-701, Specification for Wood Crossarms, Transmission Timbers, and Pole Keys; and Bulletin 1728H-702, Specification for Quality Control and Inspection of Timber Products (Wood Bulletins) to keep RUS standards current with the technology advances and consistent with the industry practice. The bulletins are provided as regulated specifications to RUS Electric Program borrowers for procurement of electric transmission and distribution line wood materials. Info HERE

Semiannual regulatory agenda: Office of the Secretary, USDA; This agenda provides summary descriptions of the significant and not significant regulatory and deregulatory actions being developed in agencies of the U.S. Department of Agriculture (USDA) in conformance with Executive Orders (E.O.) 12866 “Regulatory Planning and Review,” 13563, “Improving Regulation and Regulatory Review,” 13771 “Reducing Regulation and Controlling Regulatory Costs,” and 13777, “Enforcing the Regulatory Reform Agenda.” The agenda also describes regulations affecting small entities as required by section 602 of the Regulatory Flexibility Act, Public Law 96-354. This agenda also identifies regulatory actions that are being reviewed in compliance with section 610(c) of the Regulatory Flexibility Act. We invite public comment on those actions as well as any regulation consistent with Executive Order 13563. Info HERE

Notice: Food Safety and Inspection Service, USDA; The Food Safety and Inspection Service (FSIS) is announcing the dollar limitations on the amount of meat and meat food products and poultry and poultry products that a retail store can sell to hotels, restaurants, and similar institutions without disqualifying itself for exemption from Federal inspection requirements. Info HERE

Final rule: Animal and Plant Health Inspection Service, USDA; We are revising our regulations regarding the movement of plant pests. We are also adding criteria to the regulations for the importation, interstate movement, and release of biological control organisms. This final rule also establishes regulations to allow the interstate movement of certain plant pests and biological control organisms without restriction by granting exceptions from permit requirements for those pests and organisms. Finally, we are revising our regulations regarding the importation and interstate movement of soil. This rule clarifies the points that we will consider when assessing the risks associated with the movement and release of certain organisms and facilitates the movement of regulated organisms and articles in a manner that protects U.S. agriculture. Info

Final rule: Environmental Protection Agency (EPA); This regulation establishes tolerances for residues of trifloxystrobin in or on tea (dried and instant). Bayer CropScience requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info HERE

Call for nominations: Forest Service, USDA: The United States Department of Agriculture (USDA) is seeking nominations for the Secure Rural School Resource Advisory Committees (SRS RACs) pursuant to the Secure Rural Schools and Community Self-Determination Act (the Act) and the Federal Advisory Committee Act (FACA). Additional information on the SRS RACs can be found by visiting the SRS RACs website at: http://www.fs.usda.gov/​pts/​. Info HERE

 

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