                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


PERI & SONS FARMS, INC., et al.,

               Plaintiffs,
       v.                                            Civil Action No. 19-34 (TJK)
R. ALEXANDER ACOSTA, et al.,

               Defendants.


                                  MEMORANDUM OPINION

       This case is about the H-2A temporary agricultural labor program, which permits

agricultural employers that face a shortage of domestic workers to meet their labor needs by

hiring foreign workers on a temporary or seasonal basis (“H-2A workers”). To ensure that the

employment of temporary foreign workers under this program does not adversely affect the

wages of similarly employed domestic workers, the Department of Labor (the “Department”)

must publish an annual notice setting forth the next year’s Adverse Effect Wage Rates

(AEWRs). AEWRs set a wage floor that employers participating in the H-2A program must pay

to all agricultural workers.

       Peri & Sons Farms, Inc., and the National Council of Agricultural Employers (NCAE)

(collectively, “Plaintiffs”) have sued the Secretary of Labor and two Department officials

(“Defendants”), alleging that the Department violated the Administrative Procedure Act (APA)

in two ways. First, Plaintiffs contend that the Department lacked statutory authority to

promulgate AEWRs without first making a finding on whether the employment of H-2A workers

adversely effected the wages of domestic agricultural workers. Second, Plaintiffs allege that the

Department acted arbitrarily and capriciously when it disregarded certain factors, such as
differences in workers’ geographic area, occupation, skills, and experience, in assessing any such

adverse effect.

       Before the Court is Plaintiffs’ motion for a preliminary injunction. The parties have

agreed to consolidate that motion with the merits, and to allow the Court to rule on the merits

based on the current briefing and record. Defendants argue in their opposition that the Court

does not have subject-matter jurisdiction over Plaintiffs’ claims. As explained in more detail

below, the Court agrees. Plaintiffs’ claims present challenges to the 2010 regulation that

established the methodology for determining AEWRs. Thus, because they fall outside the statute

of limitations set forth in 5 U.S.C. § 2401(a), and because Plaintiffs have not shown that a

narrow exception to that statute applies, the Court must dismiss the case for lack of subject-

matter jurisdiction.1

       Background

       A.         Statutory and Regulatory Background

       The H-2A visa program was created by the Immigration and Nationality Act of 1952

(INA) and amended by the Immigration Reform and Control Act of 1986. 8 U.S.C. § 1101 et

seq. Under the program, employers seeking to hire H-2A workers must first receive certification


1
  In reaching its conclusion, the Court considered all relevant filings including, but not limited to,
the following: Plaintiffs’ Complaint, ECF No. 1 (“Compl.”); Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction, ECF No. 2 (“Pls.’ Mot.”); Plaintiffs’
Memorandum in Support of Their Motion for Temporary Restraining Order and Preliminary
Injunction, ECF No. 3; Defendant-Intervenor United Farm Workers’ Motion to Intervene, ECF
No. 11 (“1st Mot. to Intv.”); Plaintiffs’ Supplemental Memorandum in Support of Their Motion
for Temporary Restraining Order and Preliminary Injunction, ECF No. 14 (“Pls.’ Supp. PI Br.”);
Defendant-Intervenors Michael Cortez, Arnoldo Charles, and Olegario Lopez’s Motion to
Intervene, ECF No. 15 (“2d Mot. to Intv.”); Plaintiffs’ Opposition to Defendant-Intervenors’
Motions to Intervene, ECF No. 26; Defendants’ Opposition to Plaintiffs’ Motion for Preliminary
Injunction, ECF No. 27 (“Dfs.’ Opp.”); Defendant-Intervenors’ Reply in Support of Their
Motions to Intervene, ECF No. 29; Plaintiffs’ Reply in Support of Their Motion for Preliminary
Injunction, ECF No. 31 (“Pls.’ Reply”); and Defendant-Intervenors’ Opposition to Plaintiffs’
Motion for Preliminary Injunction, ECF No. 32.

                                                  2
from the Department that (1) there are insufficient domestic workers available to perform the

needed labor or services and (2) the employment of the H-2A workers “will not adversely affect

the wages and working conditions of workers in the United States similarly employed.” 8 U.S.C.

§ 1188(a)(1). To meet the second requirement, the Department sets annual AEWRs—wage

floors for workers employed by an H-2A participating employer. 20 C.F.R. § 655.120. The

stated purpose of the AEWR is “to neutralize any ‘adverse effect’ resultant from the influx of

temporary foreign workers.” See Labor Certification Process for the Temporary Employment of

Aliens in Agriculture and Logging in the United States, 52 Fed. Reg. 20496-01, 20502 (June 1,

1987) (quoting Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976)).

       The Department last updated the methodology by which it calculates AEWRs through

notice-and-comment rulemaking in February 2010. See Temporary Agricultural Employment of

H-2A Aliens in the United States; Final Rule, 75 Fed. Reg. 6884 (Feb. 12, 2010) (“2010 Rule”).

Under the 2010 Rule, the Department determined that AEWRs are to be set at the “annual

weighted average hourly wage for field and livestock workers,” depending on the relevant state

or region, based on the Department of Agriculture’s “quarterly wage survey” (“USDA Average

Wage”). 29 C.F.R. § 655.103(b). In accordance with § 655.120(c), the Department publishes

annual notices in the Federal Register setting forth the upcoming year’s AEWRs for each state.

The Department published the AEWRs for 2019 through a notice in the Federal Register on

December 26, 2018 (“2019 AEWR Notice”). See 83 Fed. Reg. 66306-01 (Dec. 26, 2018). On

January 9, 2019, it went into effect. Id.

       B.      The Parties

       Peri & Sons is a farming operation with about 15,000 acres in and around Yerington,

Nevada, where it grows onions and leafy greens. Compl., Ex. 4 ¶ 3. Peri & Sons participates in

the H-2A program to meet its need for agricultural laborers. Id., Ex 4 ¶ 5. During its growing


                                                3
season in 2018, Peri & Sons employed 1,768 H-2A workers. Id., Ex. 4 ¶ 6. When Peri & Sons

filed its complaint, it employed 240 H-2A workers. Id., Ex. 4 ¶ 7. As an H-2A participating

employer, Peri & Sons is subject to the 2019 AEWR Notice, which set the 2019 AEWR for

Nevada at $13.13 per hour. Id., Ex. 4 ¶ 13. This rate for Nevada represented a 23% increase

above the 2018 AEWR of $10.69 per hour. Id., Ex. 4 ¶¶ 10, 13. And in compliance with H-2A

regulations, Peri & Sons pays additional expenses for its H-2A workers, including transportation

and subsistence costs, as well as the cost of housing for the workers. Id., Ex. 4 ¶ 12. Peri &

Sons estimates that the costs of housing and transportation for its H-2A workers adds $2.15 in

costs for each hour worked, which, it asserts, “translates to an effective hourly wage of $15.28

per hour” for 2019. Id., Ex. 4 ¶¶ 12–13. By its own estimations, Peri & Sons predicts that the

2019 AEWR will cause its labor costs to increase from approximately $45 million to $49

million, which will cause it to experience a net loss of around $3 million, compared to receiving

net profits of $974,755 in 2018. Pls.’ Supp. PI Br., Ex. 1 ¶ 7.

       NCAE is a national association founded in 1964 that represents the interests of

agricultural employers before Congress and federal agencies, with an exclusive focus on labor

issues. Compl., Ex. 5 ¶ 3. NCAE’s membership comprises around 85% of all employers in the

United States that participate in the H-2A program. Id., Ex. 5 ¶ 4. At the peak of growing

season, NCAE’s members employ about 204,000 H-2A workers. Id., Ex. 5 ¶ 6. NCAE brings

its claims on behalf of its H-2A participating employers and the H-2A participating employers of

its member associations. Id. Ex. 5 ¶ 9. Those employers, NCAE contends, face millions of

dollars in increased labor costs because of the 2019 AEWRs, which will threaten the viability of

some of its member farms. Id., Ex. 5 ¶ 14. For example, Cedar Farms in Idaho—an NCAE

member participating in the H-2A program—declared that the 2019 AEWR increase is




                                                 4
“catastrophic” to its operations and threatens the “sustainability and continued longevity” of the

company. Pls.’ Supp. PI Br., Ex. 7 ¶ 8. Similarly, Petrocco Farms in Colorado contends that the

2019 AEWR increase will cause it to “suffer significant harm” and lead to “unsustainable” losses

that will force it “to cease operations.” Id., Ex. 3.

        United Farm Workers (UFW), which joined this action as a Defendant-Intervenor, is the

largest farmworkers’ union in the United States with a membership of over 9,000 in 2018,

including both domestic and H-2A workers. 1st Mot. to Intv., Romero Decl. ¶¶ 2, 6. UFW is

headquartered in California and represents farmworkers in over 30 states. Id., Romero Decl.

¶¶ 3, 4. UFW seeks to protect the rights and interests of farmworkers by advocating for higher

wages and greater workplace safety protections. Id., Romero Decl. ¶ 5. UFW contends that the

enjoinment of the 2019 AEWRs would harm its members, many of whom would be paid at

lower wage rates and would face difficulty recovering earned backpay if the 2019 AEWRs were

to be reinstated at a later date. Id., Romero Decl. ¶¶ 11–13.

        Three individual farmworkers also joined this action as Defendant-Intervenors. Arnoldo

Charles is an experienced farmworker and U.S. citizen who has worked at farms in Ohio,

Indiana, and Mississippi from 2009 through 2015. 2d Mot. to Intv., Ex. 1 ¶ 5. When he moved

to intervene, Charles was prepared to accept seasonal agricultural work in Ohio and Indiana over

the course of 2019. Id., Ex. 1 ¶ 7. Olegario Lopez is also an experienced farmworker and a

lawful permanent resident of the U.S. who has performed agricultural work in Illinois, Michigan,

Nebraska, and the southeastern U.S. since 2001. Id., Ex. 2 ¶¶ 4, 5. When he moved to intervene,

Lopez planned to perform agricultural work in Illinois and in the southeastern U.S. in 2019. Id.,

Ex. 2 ¶¶ 5, 10. Michael Cortez is a U.S. citizen residing in Harlingen, Texas. Id., Ex. 3 ¶¶ 2, 3.

He plans to seek agricultural work in 2019 with an H-2A employer in Texas. Id., Ex. 3 ¶ 10. All




                                                   5
three individual intervenors assert an interest in preventing the enjoinment of the 2019 AEWRs

because of the higher wages they expect to be paid under those rates. Id., Ex. 1 ¶ 8; id., Ex. 2

¶ 11; id., Ex. 3 ¶ 10.

        C.      Procedural Background

        On January 7, 2019, Plaintiffs filed their complaint, as well as a motion for a temporary

restraining order and preliminary injunction. Plaintiffs bring two counts under the APA. Compl.

¶¶ 39–46. First, Plaintiffs allege that in setting the 2019 AEWRs, Defendants acted “not in

accordance with law” and “in excess of statutory jurisdiction, authority, or limitations” by

increasing the rates without finding that the use of H-2A workers had an “adverse effect” on the

wages of U.S. workers. Id. ¶¶ 39–42 (quoting 5 U.S.C. § 706(2)). Second, Plaintiffs allege that

Defendants acted arbitrarily and capriciously when it did not assess any potential “adverse

effect” without considering “differences in geographic areas, occupation, skills, or experience”

or the additional costs of H-2A employment, such as housing and transportation for H-2A

workers. Id. ¶¶ 43–46. Plaintiffs’ motion sought relief in the form of a temporary restraining

order and preliminary injunction that would enjoin Defendants from (1) implementing the 2019

AEWR Notice; (2) issuing any further notices without including “a finding of actual ‘adverse

effect’ or that do not consider geographic areas, occupation, skills, or experience;” (3) and

enforcing the 2019 AEWRs against any H-2A employer. Id. ¶ 46; see Pls.’ Mot. at 4–5.

        On January 8, 2019, the Court held a telephonic hearing on Plaintiffs’ motion for a

temporary restraining order. The Court denied that motion because Plaintiffs had not shown that

they faced imminent and irreparable harm between that time and when Plaintiffs’ motion for

preliminary injunction could be resolved. See Docket, Civ. No. 19-34 (January 9, 2019 Order).

On January 9 and 15, respectively, UFW and Michael Cortez, Arnoldo Charles, and Olegario

Lopez filed motions to intervene as Defendants. 1st Mot. to Intv.; 2d Mot. to Intv. On January


                                                 6
14, Plaintiffs filed a supplemental memorandum and declarations in support of their motion for

preliminary injunction. Pls.’ Supp. PI Br. On January 23, Defendants filed their opposition, and

on January 25, Plaintiffs filed their reply.

          On January 28, 2019, the Court held a hearing on Plaintiffs’ motion for preliminary

injunction, during which it granted both motions to intervene.2 The Defendant-Intervenors’

opposition briefs were docketed the next day. On February 1, 2019, the parties represented in a

joint status report that they had no objection to the Court consolidating the motion for

preliminary injunction with the merits of this case under Federal Rule of Civil Procedure

65(a)(2) and deciding the merits on the briefing and argument then in the record. See ECF

No. 33.

          Legal Standard

          Under Federal Rule of Civil Procedure 12(b)(1), “the plaintiff bears the burden of

establishing the factual predicates of jurisdiction by a preponderance of the evidence.” P & V

Enters. v. U.S. Army Corps of Eng’rs, 466 F. Supp. 2d 134, 139 (D.D.C. 2006) (quoting Erby v.

United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006)), aff’d, 516 F.3d 1021 (D.C. Cir. 2008).

In considering subject-matter jurisdiction, the Court has an “affirmative obligation to ensure that

it is acting within the scope of its jurisdictional authority.” Id. (quoting Abu Ali v. Gonzales, 387

F. Supp. 2d 16, 17 (D.D.C. 2005)). In so doing, “a court may consider material other than the

allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as

it still accepts the factual allegations in the complaint as true.” W. Va. Highlands Conservancy v.

Johnson, 540 F. Supp. 2d 125, 133 (D.D.C. 2008) (citing Jerome Stevens Pharm., Inc. v. FDA,

402 F.3d 1249, 1253–54 (D.C. Cir. 2005)). And if the Court “concludes that it lacks subject-


2
  Citations to the hearing transcript are to pages in a “rough” version provided by the court
reporter, since the final transcript is not yet available.

                                                  7
matter jurisdiction, [it] must dismiss the complaint in its entirety.” Arbaugh v. Y & H Corp., 546

U.S. 500, 514 (2006).

       Analysis

       Plaintiffs bring their two claims under § 706(2)(A) of the APA, and thus both are subject

to the statute of limitations set forth in 28 U.S.C. § 2401(a). See Mendoza v. Perez, 754 F.3d

1002, 1018–19 (D.C. Cir. 2014). Because these claims fall outside this statute of limitations, and

because Plaintiffs have not shown that they fall within a narrow exception to it, the Court must

dismiss the case for lack of subject-matter jurisdiction.

       A.      Plaintiffs’ Claims Accrued in 2010 and Are Therefore Barred By the Statute
               of Limitations

       Under 28 U.S.C. § 2401(a), a “civil action commenced against the United States shall be

barred unless the complaint is filed within six years after the right of action first accrues.” A

“‘right of action first accrues on the date of the final agency action,’ and promulgation of a rule

is ‘unquestionably final agency action.’” Koi Nation of N. Cal. v. U.S. Dep’t of Interior, No. 17-

cv-1718 (BAH), 2019 WL 250670, at *14 (D.D.C. Jan. 16, 2019) (quoting Wash. All. of Tech

Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 342 (D.C. Cir. 2018)). “Unlike an

ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the

government’s waiver of sovereign immunity, and as such must be strictly construed.” Spannaus

v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987); see also Wash. All. of Tech Workers,

892 F.3d at 345 n.4 (“Section 2401(a) ‘is a jurisdictional condition attached to the government’s

waiver of sovereign immunity.’” (quoting Spannaus, 824 F.2d at 55)).

       Plaintiffs purport to challenge the 2019 AEWR Notice. Compl. ¶¶ 41, 45. But

Defendants assert that Plaintiffs’ claims accrued when the Department promulgated the 2010

Rule. Thus, Defendants argue, they must be dismissed because they are barred by the statute of



                                                  8
limitations. As explained below, the Court agrees that Plaintiffs’ claims accrued almost a decade

ago.

       In Count I, Plaintiffs allege that the Department exceeded its statutory authority when it

failed to “measure for [or] make specific findings as to the existence of an ‘adverse effect’” on

the wages of similarly employed domestic workers when promulgating annual AEWRs. Compl.

¶¶ 3, 39–42. In other words, Plaintiffs allege that by issuing the 2019 AEWR Notice, the

Department “impose[d] significantly higher labor costs . . . without acting in accordance with the

INA’s requirement to find adverse effect and beyond the authority provided to it by Congress

with respect to setting the terms and conditions of H-2A employment.” Id. ¶ 41. The problem

for Plaintiffs is that the Department determined in 2010 that it did not need to make findings

about or measure any potential adverse effect when setting annual AEWRs.

       In fact, at that time, the Department set forth an extensive justification of its methodology

for determining the annual AEWRs. See 75 Fed. Reg. at 6891–93. As part of that justification,

the Department concluded that “evidence of current wage depression [was] not needed” to set

annual AEWRs. Id. at 6893 (edits to capitalization). The Department explained that, even

without a finding that the employment of H-2A workers created an adverse effect on domestic

wages, the use of AEWRs was necessary “in order to effectuate its statutory mandate of

protecting domestic agricultural workers from the possibility of adverse effects on their wages.”

Id. at 6895 (emphasis added). Because AEWRs represented “wage floor[s]” that addressed “the

forward-looking need to protect U.S. workers [from] wage stagnation or deflation that has the

potential to result from the hiring of immigrant labor,” the Department concluded that it could

circulate AEWRs without finding actual “evidence of wage depression in agriculture.” Id. at

6891–93. The Department codified how AEWRs are calculated a month later, in March 2010,




                                                 9
when it defined the AEWR as “[t]he annual weighted average hourly wage for field and

livestock workers (combined) in the States or regions as published annually by the U.S.

Department of Agriculture (USDA) based on its quarterly wage survey.” 20 C.F.R.

§ 655.103(b). Thus, the Department decided in 2010 whether it needed to “measure for [or]

make specific findings” as to the existence of any adverse effect when setting AEWRs. Compl.

¶ 3. In contrast, the 2019 AEWR Notice merely “announce[d] the annual update of the AEWRs”

in accordance with the methodology established in the 2010 Rule.3 83 Fed. Reg. 66306-01.

       In Count II, Plaintiffs allege that the 2019 AEWR Notice was arbitrary and capricious.

Compl. ¶¶ 43–45. They assert that any assessment of “adverse effect” must consider

“differences in geographic areas, occupation, skills, or experience” across the agricultural labor

market as well as the “additional Department-mandated costs of H-2A employment above and

beyond the required AEWR,” such as housing and transportation for temporary workers. Id.

¶ 44. But again, the Department determined in 2010 that it did not need to assess any potential

adverse effect on the wages of similarly employed domestic workers when setting annual

AEWRs. And not surprisingly, the 2019 AEWR Notice never mentions how any potential

adverse effect should be appraised.4



3
  Although Plaintiffs do not so assert, the Court notes that the 2019 AEWR Notice did not restart
the statute of limitations under the “renewal doctrine” because it did not “enact a substantive
change” to the 2010 Rule. Mendoza v. Perez, 754 F.3d 1002, 1018–19 (D.C. Cir. 2014) (citing
Impro Prods., Inc. v. Block, 722 F.2d 845, 850 & n.9 (D.C. Cir. 1983)). Nor do Plaintiffs argue,
much less demonstrate, that Defendants “reopened” the 2010 Rule for comment. See Pub.
Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 150 (D.C. Cir. 1990).
4
  To the extent that Count II asserts that the Department unlawfully failed to consider these
factors as part of the AEWR methodology itself, such a claim would also have accrued in 2010.
In fact, when it established the current AEWR methodology, the Department responded to
comments from “farm organizations and individual farmers” that specifically questioned whether
the methodology would adequately consider “data by skill level or experience, occupations, or



                                                10
       For these reasons, Plaintiffs’ claims first accrued, at the latest, on March 15, 2010—the

date the 2010 Rule was codified, 20 C.F.R. § 655.103(b)—and the statute of limitations expired

on those claims on March 15, 2016. Plaintiffs did not bring this lawsuit until January 7, 2019.

As a result, their claims must be dismissed.5

       Judge Bates reached the same conclusion in a highly similar circumstance in Alaska

Community Action on Toxics v. EPA, 943 F. Supp. 2d 96 (D.D.C. 2013). In that case, the

Environmental Protection Agency (EPA) had to publish a “product schedule” listing dispersants

used to clean up oil spills, as well as the quantities of those dispersants and the waters in which

they could be used safely. Id. at 98. EPA promulgated a rule that explained its decision not to

list the quantities and waters because, at least in its view, the wide variability in conditions

required “a flexible approach.” Id. at 99. EPA did, though, periodically publish a schedule that



geographic locales of workers” when setting annual AEWRs. 75 Fed. Reg. at 6899. Similarly,
the Department considered comments in that rulemaking related to its imposition of other
expenses on H-2A employers, including housing and transportation for temporary workers. See
id. at 6908–12.
5
  Plaintiffs also argue that several member farms of NCAE, including farms that filed
declarations attached to their motion, “are newcomers to the H-2A program” and therefore their
claims could not have accrued in 2010, before they decided to participate in the program. Pls.’
Reply at 4. But as the D.C. Circuit has made clear, there is a “six-year window to directly
challenge the statutory authority” of a regulation, which “accrues on the date of the final agency
action.” Wash. All. of Tech Workers, 892 F.3d at 342 (quoting Harris v. FAA, 353 F.3d 1006,
1010 (D.C. Cir. 2004)). As such, the limitations period for direct challenges to a regulation
“starts to run at the time the rule was published.” Koi Nation of N. Cal., 2019 WL 250670, at
*14 (citing Wash. All. of Tech Workers, 892 F.3d at 342). That a party did not become subject to
a regulatory scheme until a later date does not, on its own, restart the statute of limitations clock
for such challenges. See Hire Order Ltd. v. Marianos, 698 F.3d 168, 170 (4th Cir. 2012) (right
of action to bring facial challenges to a regulation governing licensed firearms dealers accrued on
the promulgation date and not the date the plaintiff received a license). And, as discussed below
in Section III(B), Plaintiffs’ claims are not saved by the narrow exception to the statute of
limitations when an agency “applies” a rule to them. Thus, Plaintiffs have not demonstrated that
the presence of these member farms permits NCAE to challenge a regulation outside of the six-
year limitations period established by § 2401(a).



                                                  11
listed particular dispersants. Id. at 99–100. The plaintiffs sued, challenging the agency’s

decision not to list the relevant quantities and waters. Id. at 100–01.

       The court dismissed the plaintiffs’ claims as time-barred, concluding that,

“notwithstanding plaintiffs’ insistence,” they challenged the underlying regulation, where EPA

had “spelled out” its “deliberate decision” not to identify the waters and quantities. Id. at 104.

The court also held that “EPA’s periodic publication of the . . . [s]chedule . . . and listing of

particular products [does] not restart the limitations period for challenging the agency’s decision

not to identify the waters and quantities in which listed products may be used.” Id. at 105. In

fact, the court reasoned, “EPA’s actions in the past six years have ‘simply implemented’ the

decision made and spelled out long ago regarding the pre-specification of waters and quantities;

that EPA continues to publish the schedule and list products but not pre-specify waters and

quantities only shows the agency’s continued adherence to its earlier decision.” Id. (quoting

Harris, 353 F.3d at 1011.

       So too here. Although Plaintiffs purport to question the Department’s statutory authority

to issue the 2019 AEWR Notice, the agency actions they challenge are in fact the Department’s

“deliberate decision[s]” that it “spelled out” in the 2010 Rule. Id. at 104. The Department’s

annual AEWR notices, like EPA’s periodically published schedules, do not restart the limitations

period for challenging these decisions; the notices simply implement the decisions it made

“long ago” and reflect the Department’s continued adherence to them.6 Id. at 105.



6
 At the hearing on their motion, Plaintiffs asserted for the first time that the annual AEWR
notices represented a “recurring violation” of the law, which the Court construes as an invocation
of the “continuing violation” doctrine. Hrg. Rough Tr. at 11:15–11:23; see Earle v. District of
Columbia, 707 F.3d 299, 306–07 (D.C. Cir. 2012). The Court will not consider this argument
because it was raised for the first time at oral argument. See Innovator Enterprises, Inc. v. Jones,
28 F. Supp. 3d 14, 28 n.6 (D.D.C. 2014). And even if this argument had been raised in



                                                  12
       B.      The 2019 AEWR Notice Does Not “Apply” the 2010 Rule to Plaintiffs Such
               That They May Invoke the Narrow Exception to the Statute of Limitations

       Plaintiffs also argue that even if the limitations period to bring their claims has expired,

they fall under “an implicit and narrow exception to the bar on judicial review for claims that

[an] agency exceeded the scope of its delegated authority or violated a clear statutory mandate.”

Pls.’ Reply at 2–3 (quoting Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir. 1996)). The D.C.

Circuit recognizes such an exception, but subjects it to important limitations. “Where Congress

imposes a statute of limitations on challenges to a regulation, running from a regulation’s

issuance, facial challenges to the rule . . . are barred.” Weaver v. Fed. Motor Carrier Safety

Admin., 744 F.3d 142, 145 (D.C. Cir. 2014). “But when an agency seeks to apply the rule, those

affected may challenge that application on the grounds that it ‘conflicts with the statute from


Plaintiffs’ briefs, it would not render their claims timely. Numerous district courts in this Circuit
have held that the continuing violations doctrine does not apply where, as here, the statute of
limitations is jurisdictional. See W. Va. Highlands Conservancy, 540 F. Supp. 2d at 138 (holding
that, because § 2401(a) was jurisdictional, it acts as an “absolute bar [that cannot] be overcome
by . . . the continuing violations doctrine”); see also Burt Lake Band of Ottawa and Chippewa
Indians v. Zinke, 304 F. Supp. 3d 70, 76 (D.D.C. 2018); Alaska Cmty. Action on Toxics, 943 F.
Supp. 2d at 106–09; but see Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 44–46
(D.D.C. 2013) (holding that the continuing violation doctrine may apply even where the statute
of limitations is jurisdictional). But even assuming that the doctrine could apply to claims
subject to a jurisdictional bar, it would be irrelevant here. “For statute of limitations purposes, a
continuing violation is ‘one that could not reasonably have been expected to be made the subject
of a lawsuit when it first occurred because its character as a violation did not become clear until
it was repeated during the limitations period,’ typically because it is only its cumulative
impact . . . that reveals its illegality.” Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997)
(internal citations omitted) (quoting Dasgupta v. Univ. of Wisc. Bd. of Regents, 121 F.3d 1138,
1140 (7th Cir. 1997)). Plaintiffs’ allegation that the Department overstepped its statutory
authority by imposing AEWRs without finding an adverse effect is not “the sort of conduct” that
would be viewed as a continuing violation, since its “illegality . . . would be immediately
apparent.” AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752, 757 (D.C. Cir.
2012). And while the Circuit has “occasionally recognized a second application of the
continuing violation doctrine” if an agency fails to meet its continuing legal obligations, that
form of the doctrine applies only “if the text of the pertinent law imposes a continuing obligation
to act or refrain from acting.” Earle, 707 F.3d at 307. “Whether an obligation is continuing is a
question of statutory construction.” Id. Here, Plaintiffs have not identified any statutory text that
imposes a continuing obligation that the Department failed to satisfy.


                                                 13
which its authority derives.’” Id. (quoting Nat’l Air Transp. Ass’n v. McArtor, 866 F.2d 483, 487

(D.C. Cir. 1989)).

       The D.C. Circuit’s recognition of this exception dates back, at least, to Functional Music,

Inc. v. FCC—a 1958 case holding that a “statutory time limit restricting judicial review of [an

agency] action is applicable only to cut off review directly from the order promulgating a rule,”

but “[i]t does not foreclose subsequent examination of a rule where properly brought before [the]

court for review of further [agency] action applying it.” 274 F.2d 543, 546 (D.C. Cir. 1958).

Since Functional Music, the Circuit has not precisely defined what constitutes an “application”

of a regulation for purposes of this exception, but it has provided some guidance. In Cellular

Telecommunications & Internet Association v. FCC, the Circuit described the exception as

permitting it to “entertain challenges beyond a statutory time limit to the authority of an agency

to promulgate a regulation . . . following enforcement of the disputed regulation.” 330 F.3d 502,

508 (D.C. Cir. 2003) (emphasis added); see also NLRB Union v. Fed. Labor Relations Auth., 834

F.2d 191, 195 (D.C. Cir. 1987) (noting that “[a] challenge of this sort might be raised, for

example, by way of defense in an enforcement proceeding”).

       In Weaver, however, the D.C. Circuit clarified that the circumstances under which the

exception applies are “not limited to formal ‘enforcement actions.’” 744 F.3d at 145. There, the

Circuit held that a plaintiff could directly challenge a regulation under this exception after an

agency denied his request to have a citation that had been issued to him removed from an online

database. Id. at 144. The court then listed examples the Circuit had previously considered “the

sort of ‘application’ that opens a rule to such challenge”—“an order imposing certain limitations

on a broadcast licensee, . . . an order rejecting challenges to auction procedures to which a bidder

objected, . . . an order dismissing a complaint based on the FCC’s tariff-filing requirements,




                                                 14
[and] . . . an order denying a mineral lessee’s claim to certain royalty reimbursements.” Id. at

145–46 (internal citations omitted) (reviewing D.C. Circuit cases).

       Since Weaver, the D.C. Circuit has recognized this exception in two additional cases

presenting similar “applications.” In Citizens for Responsibility & Ethics in Washington v. FEC,

it considered a plaintiff’s facial challenge to a regulation outside the limitations period because

the FEC “rel[ied] on the challenged regulation to dismiss [the plaintiff’s administrative]

complaint and to deny [the plaintiff’s] statutory right to information.” 904 F.3d 1014, 1018

(D.C. Cir. 2018). Likewise, in Genuine Parts Co. v. EPA, the Circuit considered, under this

“narrow exception to the statutory time limit,” an untimely challenge to a regulation after the

plaintiff raised a timely challenge to EPA’s determination that its property was a hazardous

waste site. 890 F.3d 304, 315–16 (D.C. Cir. 2018).

       While most of the above caselaw describes “the sort of application” that permits untimely

challenges to a rule, Weaver 744 F.3d at 145, the D.C. Circuit also determined that an agency

action failed to meet this standard in a case somewhat similar to the one here. In Edison Electric

Institute v. Interstate Commerce Commission, 969 F.2d 1221 (D.C. Cir. 1992), railroads

challenged a 1989 agency decision to incorporate a “productivity adjustment” into a cost index

measurement, which the agency used to set maximum shipping rates that a railroad could charge

without being subject to an administrative challenge. Id. at 1223–24. In raising a timely claim

against that decision, the railroads also sought to challenge a 1986 agency decision—the Yoyo

rule—that required them to roll back their rates when the cost index measurement dropped

significantly. Id. at 1228–29. Citing NLRB Union, the railroads argued that because the Yoyo

rule was “applied to them in the later productivity decision,” they could challenge it “on the

ground that it exceeds the agency’s statutory authority.” Id. at 1229.




                                                 15
        The Circuit disagreed, holding that the 1989 decision did not permit the railroads to

invoke the exception—which, it noted, “suggests that a party may challenge an agency’s

statutory authority whenever the agency applies a rule against it.” Id. Notwithstanding the

railroads’ argument that the Yoyo rule was “in some sense” applied to them through the agency’s

later decision, the Circuit concluded that “[i]n adding a productivity adjustment to the Yoyo rule,

the ICC did not apply the Yoyo rule to any particular carrier nor extend it to any new

circumstance.” Id.

        Applying the above precedent, the Court cannot conclude that Plaintiffs have met their

burden to establish that the 2019 AEWR Notice—to the extent it is even is an “application” of

the 2010 Rule—is “the sort of application” that allows them to invoke this narrow exception to

the statute of limitations.

        First, the Court’s conclusion is supported by Weaver. In that case, the Circuit clarified

that, for purposes of the exception, “applications” are not limited to “formal enforcement

actions.” Weaver, 744 F.3d at 145 (internal quotations omitted). But it also advised, at least by

implication, that the term does not include every type of agency action. By using the phrase “the

sort of ‘application’ that opens a rule to such challenge,” it suggested that the exception does not

extend to every situation in which a regulation affects a party, or even every situation in which,

at least arguably, the regulation has been “applied” in some sense. Id. (emphasis added). The

Circuit then listed “the sort[s]” of applications that it had held did so. Id. In every example, the

agency applied the challenged regulation through an order or other agency action directed at a

particular party, its property, or a set of circumstances specifically affecting that party. As far as

the Court can tell, district courts in this Circuit have permitted this exception to be invoked only




                                                  16
in similar circumstances.7 And unfortunately for Plaintiffs, the 2019 AEWR Notice simply does

not fit the description of agency “applications” under these cases. It did not, for example,

adjudicate a complaint or petition submitted by Plaintiffs or apply the 2010 Rule such a way that

affected Plaintiffs in particular.

        Second, Edison Electric further suggests that the 2019 AEWR Notice was not an

“application” of the 2010 Rule such that an otherwise time-barred challenge to it is permitted

under the exception. Although it is not precisely clear how the 1989 decision “applied” the

earlier Yoyo rule in that case, the Circuit’s analysis did not turn on the relationship between the

two agency actions. Instead, the court held that the 1989 decision, while perhaps affecting the

Yoyo rule’s impact on the railroads’ profits, did not apply it “to any particular [party] nor extend

it to any new circumstances.” 969 F.2d at 1229. And in contrast, the “sorts of applications” set

forth in Weaver had done precisely that. Here, the 2019 AEWR Notice did not apply the 2010

Rule to any particular party nor extend it to any new circumstances. Rather, it simply updated

the annual wage rates applicable to all H-2A employers in accordance with the methodology set

in 2010. To be sure, Plaintiffs, like all H-2A employers, are subject to the new AEWRs, just as




7
  See, e.g., Koi Nation of N. Cal., 2019 WL 250670, at *1, 14–17 (permitting untimely facial
claims against a regulation after the agency denied an Indian tribe’s eligibility to engage in
commercial gaming on certain land); Styrene Info. & Research Ctr., Inc. v. Sebelius, 944 F.
Supp. 2d 71, 78–79 (D.D.C. 2013) (permitting untimely facial claims brought by an association
of styrene manufacturers after the agency designated styrene as a regulated carcinogenic
substance for the first time); Tripoli Rocketry Ass’n, Inc. v. U.S. Bureau of Alcohol, Tobacco and
Firearms, No. 00-cv-273 (RBW), 2002 WL 33253171, at *5 (D.D.C. June 24, 2002) (permitting
untimely facial challenges where the agency issued letters to plaintiffs that “for the first time
indicated its intent to apply its regulation[s] . . . to plaintiffs”); Alaska Leg. Council v. Babbitt, 15
F. Supp. 2d 19, 24–25 (D.D.C. 1998) (rejecting a facial challenge to a regulation because the
plaintiffs “failed to identify a final agency action involving themselves—such as an enforcement
action against a named plaintiff” (internal quotations omitted)).



                                                   17
all railroads were subject to both the Yoyo rule and the subsequent 1989 decision. But that fact

alone does not an “application” make.

       Therefore, because Plaintiffs have not established that the 2019 AEWR Notice is an

“application” of the 2010 Rule for purposes of this exception, their claims, which are entirely

facial, must be dismissed because they are barred by § 2401(a).8

       The Court’s conclusion is guided by several additional considerations. The D.C. Circuit

has expressly described the exception as a “narrow” one. Genuine Parts, 890 F.3d at 315. But if

it applies here, the Court would be hard-pressed to describe its limitations. Moreover, where the

statute of limitations at issue is jurisdictional, the Court must start with a presumption that this

“narrow” exception does not apply. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994) (noting that because federal courts have limited jurisdiction, the law presumes that “a

cause lies outside this limited jurisdiction”). Similarly, any waiver of the government’s

sovereign immunity must be “strictly construed.” Spannaus, 824 F.2d at 55. Finally, in the

Court’s view, applying the exception here would effectively nullify the six-year statute of

limitations under § 2401(a). If the 2019 AEWR Notice were sufficient to invoke it, any H-2A

employer could challenge the 2010 Rule at any time. And regulations establishing other similar

regimes would also be exposed to never-ending facial challenges from those subject to them.




8
  As described above, Plaintiffs’ claims are wholly facial. They assert that AEWRs established
according to the 2010 Rule’s methodology are unlawful in all circumstances, not just in a
particular case. And, if successful, their claims would invalidate the AEWRs effective in 2018,
as well as in all previous years they were established under the 2010 Rule. Plaintiffs also seek to
enjoin all implementation and enforcement of the 2019 AEWRs, rather than their application to a
specific party or region. In response, Plaintiffs argue that they assert an “as applied” challenge to
the 2019 AEWR Notice because it generated a “feedback loop” that “ratchet[s] up U.S.
farmworker wages, year after year.” Pls.’ Reply at 5–6. But this assertion, whatever its truth,
does not transform their claims into “as-applied” challenges.



                                                  18
For that reason, allowing the exception to be invoked here would “frustrate Congress’s objective

that facial challenges to a regulation be confined to a limited period.” Coal River Energy, LLC v.

Jewell, 751 F.3d 659, 663 (D.C. Cir. 2014).

       Finally, the Court notes that although Plaintiffs’ claims are not timely, Plaintiffs are not

necessarily without a remedy. The law in this Circuit recognizes “[t]he general rule is that it is a

perfectly valid ‘method of obtaining judicial review of agency regulations once the limitations

period has run . . . to petition the agency for amendment or rescission of the regulations and then

to appeal the agency’s decision.” Am. Rd. & Transp. Builders Ass’n v. EPA, 588 F.3d 1109,

1112 (D.C. Cir. 2009) (quoting NLRB Union, 834 F.2d at 196); see also Pub. Citizen, 901 F.2d at

152. But this case does not present such an appeal.

       Conclusion

       As explained above, Plaintiffs’ claims are time-barred under § 2401(a). Therefore, in a

separate order, the Court will dismiss this case for lack of subject-matter jurisdiction.



                                                              s/ Timothy J. Kelly
                                                              TIMOTHY J. KELLY
                                                              United States District Judge


Date: March 18, 2019




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