In 1984, a coalition of apple growers filed suit in the U.S. District Court for the District of Vermont, challenging a regulation, 20 C.F.R. § 655.207(b) (1984), adopted by the U.S. Department of Labor for the determination of annual wage rate increases for temporary foreign workers under the "H-2 Program." Under the "H-2 Program," aliens were granted temporary visas to work in the United States. Workers were certified under the program upon an employer's agreement to pay both foreign and domestic employees a specially computed minimum hourly wage, called the "adverse effect rate" ("AER"). Plaintiffs alleged that the Labor Department's adoption of the regulation for calculating the AER violated the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982),

The Labor Department moved for summary judgment, contending that adoption of the regulation was within its discretion. The District Court (Judge Albert W. Coffrin) denied the motion. The Department appealed.

The Court of Appeals for the Second Circuit, (Circuit Judge Jon O. Newman) reversed and remanded with instructions. The Appeals Court held that the regulation was not arbitrary and capricious and that the District Court erred in denying the Department's motion for summary judgment. Shoreham Co-op. Apple Producers Ass'n, Inc. v. Donovan, 764 F.2d 135 (2nd Cir. 1985).

Dan Dalton - 10/30/2007


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