[00:01:22] Speaker 05:
May it please the court, Dermot Lynch, along with my co-counsel, Bill Taylor, William Taylor, for plaintiff appellants.

[00:01:29] Speaker 05:
H2A shepherds work in the United States for years or sometimes decades on end.

[00:01:34] Speaker 05:
They are permanent fixtures on western ranches.

[00:01:37] Speaker 05:
They are by no rational definition performing temporary work as required by the INA.

[00:01:43] Speaker 05:
This court can address DOL and DHS's clear violation of the H2A provision, and the most straightforward approach implicates one of the regulations that DOL issued in response to Mendoza v. Paris from this court.

[00:01:57] Speaker 05:
That regulation, 20 CFR 655.215b2, allows Shepard's to stay in the United States for what DOL calls 364-day periods of need.

[00:02:09] Speaker 05:
The regulation is invalid because the reasoning that DOL relies upon as support is both arbitrary and capricious and cannot be squared with the H2A provision.

[00:02:18] Speaker 05:
DOL provides this flawed reasoning in the final rule, JA620.

[00:02:25] Speaker 05:
There, DOL does three things.

[00:02:29] Speaker 05:
First, it recognizes that H2O work must be either temporary or seasonal.

[00:02:33] Speaker 05:
Second, it concludes that Shepard work fits in the temporary category.

[00:02:38] Speaker 05:
And third, it says that the 364-day period of need complies with the definitions of temporary in the DOL and the DHS regulations and is consistent with the INA.

[00:02:50] Speaker 05:
As we explained on pages 30 to 31 of our opening brief,

[00:02:53] Speaker 01:
This reasoning fails on at least three grounds.

[00:03:06] Speaker 05:
That's correct, given what DOL has recognized, given what the administrative record, an abundance of evidence both within and without the administrative record establishes.

[00:03:18] Speaker 05:
There's a permanent domestic shortage.

[00:03:21] Speaker 01:
And the other side says that that specific complaint, that argument, wasn't raised in the comments.

[00:03:27] Speaker 01:
Can you point me to a comment that

[00:03:30] Speaker 01:
discusses that point that they should never be given temporary visas?

[00:03:36] Speaker 05:
I have two responses.

[00:03:39] Speaker 01:
First responses point me to the comment that you want to rely on.

[00:03:45] Speaker 05:
It's AR1996.

[00:03:46] Speaker 05:
It's the comment that we've been debating about, right?

[00:03:52] Speaker 01:
That's the one that says the best way to reflect the distinct temporary and or seasonal needs

[00:03:59] Speaker 01:
would be to separate certification periods that reflect the nature of the work.

[00:04:04] Speaker 05:
And on that same page or on the next page, they also talk about how that should be required.

[00:04:09] Speaker 05:
I'm quoting from the language of the comment.

[00:04:11] Speaker 01:
But that doesn't say you should never give a temporary or seasonal

[00:04:16] Speaker 01:
It says you should separate into two separate seasons.

[00:04:21] Speaker 05:
I think that what was implicit in what they were saying there was they were responding to a question that was asked by the Department of Labor and the NPRN.

[00:04:30] Speaker 05:
They asked, how do we make this visa program comply with temporary or seasonal need?

[00:04:36] Speaker 01:
Your position is it can't comply.

[00:04:39] Speaker 01:
with a temporary or seasonal certificate, right?

[00:04:42] Speaker 05:
Yes.

[00:04:43] Speaker 01:
But that's not what they say here.

[00:04:44] Speaker 01:
They talk about a separate three-month certification is appropriate during the spring months.

[00:04:51] Speaker 01:
A nine-month certification for open range herder would be sufficient to encompass most open range work.

[00:05:00] Speaker 01:
If you were here arguing for the two shoulder season kind of things and the thing in the middle thing,

[00:05:06] Speaker 01:
then you would have something.

[00:05:08] Speaker 01:
But your position is that they can never get a

[00:05:13] Speaker 01:
visa for a temporary or seasonal visa, right?

[00:05:17] Speaker 05:
With respect, I don't think that's quite right.

[00:05:19] Speaker 01:
I think that they could have... I thought that's what I asked you to begin with.

[00:05:23] Speaker 05:
Maybe I misunderstood your question with apologies.

[00:05:26] Speaker 05:
We believe that the Shepherds could receive seasonally-based H2A visas, or they could also receive the 1153 visa that we talk about elsewhere.

[00:05:35] Speaker 05:
But they could receive a seasonal visa for the lambing season.

[00:05:39] Speaker 05:
and a subsequent seasonal visa for the herding season.

[00:05:43] Speaker 05:
We think that's the only way that shepherds can, that what is said in the H2A statute can be squared with the type of work that the shepherds are performing.

[00:05:57] Speaker 01:
I want to understand something.

[00:05:59] Speaker 01:
I'm sorry, just for one second.

[00:06:00] Speaker 01:
Number item one of your argument, DOL and DHS cannot approve

[00:06:08] Speaker 01:
H-2A visas for shepherds because shepherd work is not temporary.

[00:06:13] Speaker 01:
My question is, is that argument, which is your number one argument in your brief, raised in the comments?

[00:06:21] Speaker 05:
We think that it was in response to the question.

[00:06:24] Speaker 05:
We do not think that you need to reach that question either because DOL itself raised the issue.

[00:06:30] Speaker 05:
I'm pointing to JA 620 and the final rule.

[00:06:34] Speaker 05:
DOL on that page very clearly said,

[00:06:37] Speaker 05:
These visas have to comply with the temporary or seasonal requirement.

[00:06:41] Speaker 05:
They raised the issue.

[00:06:43] Speaker 05:
They said that the temporary bucket is what we're using here, and that is in compliance with DOL and DHS regulations.

[00:06:53] Speaker 05:
I would point you to the 2014 NRDC case, which we cite on page 47 of our briefs.

[00:06:58] Speaker 05:
If DOL itself raises the issue, that is sufficient.

[00:07:02] Speaker 05:
The facts of that case, the 2014 NRDC case,

[00:07:06] Speaker 05:
are illustrative here.

[00:07:07] Speaker 05:
That is a case about EPA allowing for an exemption from a hazardous waste materials exemption.

[00:07:15] Speaker 05:
The challenge that was brought in this court was whether or not that was statutorily authorized.

[00:07:21] Speaker 05:
The same waiver argument was raised.

[00:07:23] Speaker 05:
There was a similar, this court said, you know what, we're not certain whether or not that issue was raised in the comments, but in reaction to the comments,

[00:07:33] Speaker 05:
EPA definitely raised the issue as to whether or not the exemption it was using here was statutorily authorized.

[00:07:40] Speaker 05:
So I think that you don't have to reach the question as to whether or not the commenters raised the issue.

[00:07:48] Speaker 05:
I think that on two separate grounds, actually, the 2014 NRDC opinion disposes of the waiver issue.

[00:07:54] Speaker 05:
First, because DOL itself raised the issue, and second, because in the language of the opinion, one of the key assumptions that was at play in that analysis was that they did have statutory authority.

[00:08:09] Speaker 02:
I'm sorry, can you just point me again to the precise language you said, I think you said JA620?

[00:08:14] Speaker 05:
JA620, the first column, the second full paragraph.

[00:08:18] Speaker 05:
In that paragraph, which the government hasn't addressed, we address quite clearly on page 47 of our brief.

[00:08:25] Speaker 04:
Which sentence in that second paragraph?

[00:08:27] Speaker 05:
The second full paragraph talks about the first sentence.

[00:08:30] Speaker 05:
Let me pull it out here.

[00:08:31] Speaker 05:
The first, this is the entire section, right?

[00:08:35] Speaker 05:
These two pages are the entire sort of analysis of why these visas can fit within the temporary bucket.

[00:08:44] Speaker 05:
As we've stated, as we've said on page 31 to 32 of our opening brief, the analysis in that second full paragraph on page 620

[00:08:51] Speaker 05:
is flawed.

[00:08:52] Speaker 05:
It's completely flawed.

[00:08:54] Speaker 05:
That right there is the issue being raised.

[00:08:58] Speaker 05:
It is squarely on point with the facts of the NRDC case from 2014.

[00:09:06] Speaker 05:
The site is 755 F3rd, 1010.

[00:09:13] Speaker 05:
And it was raised towards the end of the opinion.

[00:09:17] Speaker 05:
So with respect to your question, Chief Judge Garland, I don't think you need to reach the issue as to whether or not the commoners made it.

[00:09:23] Speaker 05:
You didn't reach that issue in the NRDC case, and we think that that squarely resolves the waiver issue.

[00:09:29] Speaker 05:
If I may talk about the merits as to DOL.

[00:09:33] Speaker 05:
We think that the analysis on page 620 does not comport with, is arbitrary and capricious because it ignores abundant evidence in the administrative record that says that, you know, all these H2H shepherds are here for years or decades on end.

[00:09:49] Speaker 05:
There's one rancher who says it's misleading to even call them temporary because call a spade a spade.

[00:09:54] Speaker 05:
Somebody who works in the United States in the same job for 20 years is not performing temporary work.

[00:09:58] Speaker 04:
So this merit, just to solve my understanding because there's many claims raised in this case,

[00:10:02] Speaker 04:
The mayor's argument that you're launching into now was not considered by the district court.

[00:10:06] Speaker 05:
The district court disposed of the DOL challenge.

[00:10:12] Speaker 05:
There's two challenges, right?

[00:10:13] Speaker 05:
To the labor certifications with DOL.

[00:10:16] Speaker 05:
The district court resolved that on the waiver issue, which we think was erroneous, especially given the NRDC case.

[00:10:23] Speaker 05:
And the DHS, which the district court resolved on what we think is an erroneous interpretation of what we call the other employment regulation.

[00:10:36] Speaker 05:
If I may, just make one brief comment on the merits, or I can also talk about our secret.

[00:10:42] Speaker 04:
I didn't mean to cut you off on discussing the merits.

[00:10:44] Speaker 04:
I just want to make sure that I understand that the argument that you're making now is one that hasn't been resolved on the merits by the district court.

[00:10:51] Speaker 04:
Yes.

[00:10:51] Speaker 05:
And just with respect to we mentioned this in our reply, we think that you can reach the merits.

[00:10:56] Speaker 05:
The last time the Shepherds were at the DC Circuit, this is exactly what happened.

[00:11:00] Speaker 05:
You reached a merits argument after the district court had disposed on procedural grounds.

[00:11:06] Speaker 05:
So as to the record evidence here, right?

[00:11:08] Speaker 01:
Just for one more second.

[00:11:09] Speaker 01:
Sure.

[00:11:09] Speaker 01:
So in the NRDC case, it says that it was OK because the NRDC understood the comment to be the kind of attack that was now being made on appeal.

[00:11:22] Speaker 01:
Where in the Federal Register notice, this is for the 2015 rule, is that what we're talking about?

[00:11:27] Speaker 01:
The 2015 rule, yes.

[00:11:29] Speaker 01:
Tell me again where it's, you understand, where the agency understands it's being told that there can't be any temporary visas?

[00:11:38] Speaker 05:
I think that that's squarely addressed in the second full paragraph.

[00:11:43] Speaker 05:
You know, the first paragraph starts, we have decided the second.

[00:11:46] Speaker 05:
I'm so sorry, 620, it's 63,000 of the Federal Register.

[00:11:55] Speaker 05:
The previous page, you can read it in full, talks about here's our analysis, here are the different seasons that are available.

[00:12:06] Speaker 05:
We reject that line of reasoning.

[00:12:10] Speaker 05:
We think that shepherds are performing temporary work.

[00:12:13] Speaker 05:
But if you look at the framework, in a matter of RT and a number of these different cases,

[00:12:17] Speaker 01:
That doesn't line up with that second full paragraph.

[00:12:27] Speaker 01:
the idea that there could be separate seasons, right?

[00:12:29] Speaker 05:
This is, well, but I think that if you look at what DOL is saying here, they're saying, and you know, our position is, right, they said in the NPRM, ooh, we might have a problem, is, does this work comply with the temporary season requirement in the INA?

[00:12:45] Speaker 05:
Response in the final rule.

[00:12:47] Speaker 05:
Is, the issue is resolved in a flawed way on page 63,000.

[00:12:51] Speaker 05:
I think we say the same thing on page 47 of our brief.

[00:12:57] Speaker 05:
I – if you don't agree with me that NRDC and the posture that we think we've outlined in the rulemaking here disposes of the waiver issue, I think you have to address the issue as to DHS.

[00:13:11] Speaker 05:
I can talk about that or I can talk about wages.

[00:13:15] Speaker 01:
We'll let you talk about both.

[00:13:17] Speaker 05:
Oh, thank you.

[00:13:18] Speaker 05:
Okay.

[00:13:20] Speaker 05:
For the DHS challenge, I just want to flag two important things.

[00:13:24] Speaker 05:
One, the government's litigation strategy or DHS's litigation strategy should be deeply concerning to this court.

[00:13:30] Speaker 05:
It's using bureaucratic constructs to sort of deny reality or defy reality here.

[00:13:37] Speaker 05:
The reality is, most of these shepherds are here for three years.

[00:13:40] Speaker 05:
There's an OLC memo at J389 that squarely says, shepherds cannot be here for three year periods of time.

[00:13:50] Speaker 05:
And yet, that's what's happening.

[00:13:52] Speaker 05:
The government's only response is to raise this Lujan programmatic attack argument.

[00:13:56] Speaker 05:
And we think that they're just capitalizing on the unwritten nature of the policy.

[00:14:00] Speaker 04:
So just so I can understand exactly what you're saying about DHS, unlike with DLL, you're not pointing to a regulation that you're challenging as arbitrary and capricious.

[00:14:12] Speaker 04:
You're saying there's an unwritten practice or policy of granting temporary status in a situation in which, by nature, the shepherds are not temporary.

[00:14:22] Speaker 05:
That, I believe, that is, with one clarification, I think that is what I believed until I received a response to the notice of supplemental authority last week.

[00:14:31] Speaker 05:
There, the government for the first time actually addressed the fact that shepherds are here for three years.

[00:14:35] Speaker 05:
And in that, at the end of that supplemental authority, they say at most, and you have all these affidavits, right, and they kind of dispute whether or not they're admissible here, they say at most the affidavits suggest that unidentified shepherds stay in the United States for up to three years, which, as the district court explained,

[00:14:50] Speaker 05:
is explicitly permitted by DHS regulations.

[00:14:53] Speaker 05:
If DHS is now taking the litigating position in this case that three-year shepherd visas are legally authorized, that is interpreting the law.

[00:15:03] Speaker 05:
That is the equivalent of an agency rule.

[00:15:05] Speaker 05:
And I think under the Venetian Casino case, that gives you final agency action to reach the issue.

[00:15:10] Speaker 01:
Are they saying it's in the regulation?

[00:15:14] Speaker 01:
I thought that's part of their argument that you should have challenged the regulation.

[00:15:19] Speaker 05:
There is no regulation.

[00:15:20] Speaker 05:
The regulation, if the regulation were actually enforced as it should be under a matter of RT and this wide framework about temporary work,

[00:15:29] Speaker 05:
We wouldn't be here.

[00:15:31] Speaker 05:
No shepherd would receive a visa because the DOL or DHS would review the payroll records as we, you know, talk about the Aldolf case explains like how you determine temporary need.

[00:15:43] Speaker 05:
The ranchers would have all these payroll records that, you know, confirm that the work is permanent and not temporary and every single visa petition we denied.

[00:15:50] Speaker 04:
So you're probably DHS but for the supplemental authority point, just bracket it for a second.

[00:15:55] Speaker 04:
is that the regulations are fine, it's just that they're not being applied.

[00:15:58] Speaker 05:
There's an unwritten exemption or there might even be a written rule that we haven't received, right?

[00:16:05] Speaker 05:
Just to clarify, the position of DHS below is our argument is confusing.

[00:16:11] Speaker 05:
They're just capitalizing again on the unwritten nature of the exemption that they've

[00:16:15] Speaker 05:
created here, and we think, you know, it is possible that there is, in some vault at DHS, something that says, listen, shepherds are allowed to stay here for three years, unlike all other H2A workers, because they're X. I don't know the answer to that question, and DHS has provided it for me, and I think that that's a problem we have here, right?

[00:16:41] Speaker 01:
Looking at your

[00:16:42] Speaker 01:
The last complaint here is the Second Amendment complaint.

[00:16:44] Speaker 05:
Second Amendment complaint, yes.

[00:16:45] Speaker 01:
So the district court said you didn't make this challenge that you're making now.

[00:16:51] Speaker 01:
And as I look at the numbered causes of action, beginning on JA 66, the first one is about the 2011 Shepherd, is it Tegely, Tegel, how do you pronounce it?

[00:17:04] Speaker 01:
Tegel, I've been saying.

[00:17:05] Speaker 01:
Tegel, all right.

[00:17:06] Speaker 01:
That's not what we're talking about here.

[00:17:08] Speaker 05:
No, well, not, we have one minor claim as regards to the T. Well, you're talking now about a policy of constant renewal.

[00:17:16] Speaker 05:
Yes.

[00:17:16] Speaker 05:
Right.

[00:17:18] Speaker 01:
Second cause of action is the same.

[00:17:20] Speaker 01:
Third cause of action is the same.

[00:17:21] Speaker 01:
Fourth, same.

[00:17:24] Speaker 01:
Fifth, hold on one second.

[00:17:25] Speaker 01:
I'm so sorry.

[00:17:26] Speaker 01:
Fifth is about the 2015 rule.

[00:17:28] Speaker 01:
Same sixth, seventh, eighth.

[00:17:34] Speaker 01:
And then you get into your quasi-contract claims.

[00:17:37] Speaker 01:
And then for the prayer for relief, it's issue a wage determination, of course, with the regulatory framework in the TIGLs, and join the 2015 rule, approving under the 2015 rule.

[00:17:53] Speaker 01:
So where is the cause of action that you're raising here that is a policy of permitting essentially permanent

[00:18:03] Speaker 05:
So as to, I can provide you on rebuttal the exact sites, but in each of those cause of action we say this is arbitrary and capricious because DOL is, you know, approving the labor certifications and DHS is separately approving the visa petitions.

[00:18:17] Speaker 05:
This issue was actually litigated in a motion to dismiss, which is not subject of a cross appeal here.

[00:18:22] Speaker 01:
But the district court's opinion mentions that this claim wasn't raised in the complaint.

[00:18:30] Speaker 05:
There is

[00:18:33] Speaker 05:
There's a bit of a tension between the reasoning of the denial of the motion to dismiss and what the district court says at summary judgment.

[00:18:41] Speaker 01:
It's not really that unusual.

[00:18:43] Speaker 01:
One happens very early on in the litigation.

[00:18:46] Speaker 01:
One happens later in the litigation.

[00:18:48] Speaker 05:
So from our perspective, DHS raised two arguments in the motion to dismiss.

[00:18:58] Speaker 05:
They first of all said that when we pleaded within each of those causes of action that DHS was taking these illegal actions, that they weren't on sufficient notice

[00:19:08] Speaker 05:
of the policy that we were talking about.

[00:19:10] Speaker 05:
We responded that yes, we are, we are, you should be on sufficient notice because we are, you know, we're challenging what is effectively what we call a rubber stamping policy.

[00:19:22] Speaker 04:
It has to be, I take it, it must be from the fifth and sixth causes of action in paragraphs 112 and 114 because I think those

[00:19:28] Speaker 04:
That's the places where you mentioned DHS.

[00:19:31] Speaker 05:
Yes, and I don't have the, I will trust you on that, right.

[00:19:35] Speaker 05:
And if you look, if you look closely, honestly, if you look at the denial of the motion for summary judgment, the district court adopted our view that we did raise a challenge to DHS's policy

[00:19:49] Speaker 05:
of rubber stamping the visa petitions after the labor certifications were approved by DOL.

[00:20:00] Speaker 04:
Well, I don't read the complaint to say anything about rubber stamping, because that may be the argument that you made in effectuation of your complaint, but what your complaint says

[00:20:08] Speaker 04:
is that the actions of DOL and DHS authorize the creation of permanent herder jobs that are not temporary.

[00:20:14] Speaker 05:
Right.

[00:20:15] Speaker 05:
And so DHS responded, moved to dismiss, said that we were challenging.

[00:20:23] Speaker 05:
We couldn't bring this type of a challenge to this policy that creates a permanent labor force.

[00:20:29] Speaker 05:
And we responded in the motion to dismiss by saying, yes, we can.

[00:20:33] Speaker 05:
Here's how you should be on notice of this.

[00:20:37] Speaker 05:
We litigated that issue fully in the district, this report.

[00:20:40] Speaker 01:
Can I pause over that?

[00:20:41] Speaker 01:
Sure.

[00:20:42] Speaker 01:
What are the 2015 special procedures?

[00:20:45] Speaker 01:
Is that the, what are the 20?

[00:20:48] Speaker 05:
The 20, excuse me, the 2015 special procedures are what DOL has used to... The sentence about DHS's actions in paragraph 112

[00:21:00] Speaker 01:
challenged DHS's actions in issuing H2A herder visa authorizations in accord with the 2015 special procedures.

[00:21:10] Speaker 01:
It's not about a policy that's different from the DOL rule.

[00:21:15] Speaker 01:
It's from following the DOL rule.

[00:21:17] Speaker 05:
We think that as a term of art that we used in the complaint, we said DHS is effectively

[00:21:27] Speaker 05:
authorizing these visas in accord with the 2015 rule because it hasn't announced any sort of its own policy.

[00:21:34] Speaker 05:
There's this sort of, I will concede, a kind of bizarre sub-delegation issue where DOL is

[00:21:43] Speaker 05:
taking all of these actions, and it does seem that DHS is sort of the passive player here, and they're not doing anything, but they have a de facto policy of approving these visa petitions and that.

[00:21:59] Speaker 04:
Do you have the complaint in front of you now?

[00:22:01] Speaker 04:
I do, yeah.

[00:22:02] Speaker 04:
So the relevant pages it looks like are 68 and 69, and can you just say which, it seems like it's 112 and 114 that mention DHS at all.

[00:22:16] Speaker 04:
Is that what you're talking about, or is there something else that we should be looking at?

[00:22:26] Speaker 05:
I can also submit a 28-J to give you further, but if it's not immediately, the prayer for relief also, and I believe the district court relied on the prayer for relief.

[00:22:37] Speaker 05:
And is 114 relevant, or is it not relevant?

[00:22:47] Speaker 04:
to the DHS challenge, the one that DHS has a de facto policy of allowing non-temporary?

[00:22:54] Speaker 05:
Yes, yes.

[00:22:55] Speaker 05:
We think that the APA violations here are that it's arbitrary and capricious.

[00:23:01] Speaker 05:
It hasn't been explained.

[00:23:02] Speaker 05:
It's not the product of reasoned decision-making and that it's ultra-various of the H2A provision, which

[00:23:10] Speaker 05:
you know, defines temporary work much more narrowly than what's at issue here.

[00:23:18] Speaker 05:
If we had been told that we hadn't provided sufficient notice to DHS about our claims with these allegations, we would have amended, but the district court agreed with our position in denying the motion to dismiss that claim and allowing our challenge to

[00:23:38] Speaker 05:
DHS's policy to proceed.

[00:23:40] Speaker 05:
So what we did was we said, okay, we have plausibly alleged a policy.

[00:23:44] Speaker 05:
The district court agrees with us on that.

[00:23:47] Speaker 05:
How can we find evidentiary support for this?

[00:23:49] Speaker 05:
And we did what was done in the RILR case, and Judge Boasberg also looked at

[00:23:54] Speaker 05:
You know, well, it seems like we're going to have to litigate the existence of this policy before we decide whether or not it's the product of reason decision making.

[00:24:02] Speaker 05:
And we did that as best we could because it's hard to prove a policy without

[00:24:11] Speaker 05:
without having sort of any written documents, but you can see the policy in its effect.

[00:24:15] Speaker 05:
We've submitted five or six different declarations from, you know, from actual H2A Sheppards.

[00:24:22] Speaker 05:
One of them has worked in the United States for nine years.

[00:24:25] Speaker 05:
He would be a U.S.

[00:24:25] Speaker 05:
citizen today if he was given the right visa the first time around by DHS.

[00:24:31] Speaker 05:
We have all these different declarations from American workers who are asking for work on these ranches and they can't get it because the ranchers can pay $4 an hour and they can rely on year-round shepherd labor, foreign shepherd labor.

[00:24:49] Speaker 05:
from this sort of captive workforce.

[00:24:51] Speaker 02:
Can you explain to me?

[00:24:55] Speaker 02:
So the authorizations that come from DHS are for 364 days.

[00:25:02] Speaker 02:
How does that turn into three?

[00:25:03] Speaker 02:
Who does the renewal?

[00:25:05] Speaker 02:
Is that labor?

[00:25:06] Speaker 02:
Is it DHS?

[00:25:08] Speaker 02:
And I assume at some point the State Department's got to extend the visa.

[00:25:10] Speaker 02:
So I didn't quite understand the renewal process, how you got to the three years.

[00:25:15] Speaker 02:
I got that you were arguing that.

[00:25:17] Speaker 02:
Who's doing that?

[00:25:18] Speaker 02:
Who's making it?

[00:25:19] Speaker 05:
So they're line officers who will... In which agency?

[00:25:24] Speaker 05:
First of all, it's sort of like a conveyor belt.

[00:25:26] Speaker 05:
It goes to DOL first.

[00:25:27] Speaker 05:
They have to approve.

[00:25:28] Speaker 02:
For renewal or for an extension.

[00:25:30] Speaker 05:
For renewal and for the extension, right?

[00:25:32] Speaker 02:
And then it goes to... Is it the exact same process to get the extension?

[00:25:35] Speaker 02:
I just didn't see much discussion of the extension process, which seems to me that's really the crux of... The problem isn't that they're issued 364-day visas.

[00:25:44] Speaker 02:
The problem would seem to be

[00:25:46] Speaker 02:
if you're going to show, if one we're going to show unwritten policy or for a ledge one, that the renewal process.

[00:25:54] Speaker 05:
I actually, I think we've, I think it's easier to grasp the renewal, but I actually think the initial visa, the first visa is also illegal because there's, there would be obvious evidence that there's a permanent domestic labor shortage.

[00:26:08] Speaker 05:
If you have that RTE, the RTE case,

[00:26:11] Speaker 05:
says, you know, that that's dispositive, right?

[00:26:16] Speaker 05:
You can't get the, you know, just as a machinist in that case couldn't get the initial visa.

[00:26:20] Speaker 05:
The shepherds here shouldn't be able to get that initial visa for the 364 days of need.

[00:26:25] Speaker 02:
But does the renewal go through the exact same steps so that both labor and DHS are implicated in that?

[00:26:31] Speaker 02:
Does the employer go on day 360 or something to labor and

[00:26:38] Speaker 05:
Yeah, I mean, as a practical matter, they generally go before, you know, they want some lag time, so they'll renew, you know, say two months out from the end of the first labor certification, and then they'll start that process, but it's the same process for the financing.

[00:26:55] Speaker 02:
Same process for the renewal.

[00:26:56] Speaker 05:
Same process for the renewal as it is for the original.

[00:26:58] Speaker 02:
And did you have evidence or want an opportunity to get evidence of the volume of renewals?

[00:27:05] Speaker 05:
or how often there are windows?

[00:27:11] Speaker 05:
I think we do have evidence.

[00:27:13] Speaker 05:
I think we've submitted all these declarations.

[00:27:16] Speaker 05:
John Doe said, I've done this for nine years.

[00:27:19] Speaker 05:
I did one contract.

[00:27:21] Speaker 05:
I had it renewed at the end of the first year, second contract, third contract.

[00:27:25] Speaker 05:
The same thing is said by Ricardo Perez, who's HAP's executive director.

[00:27:33] Speaker 05:
At JA332, this expert, we have the Alvarado Declaration, who also says, I've worked for years and years helping shepherds, and they're all working here for three years.

[00:27:49] Speaker 05:
So if the question is, do I have those pieces of paper that say this is renewed in front of me,

[00:27:57] Speaker 05:
I don't.

[00:27:58] Speaker 05:
I'm not sure that it would be necessary for this court to rule on the DHS challenge, because we've provided – I think that litigating the question of the existence of this policy is what this court did in Venetian Casino.

[00:28:16] Speaker 05:
And that question is a very simple question.

[00:28:18] Speaker 05:
It's a summary judgment question.

[00:28:19] Speaker 05:
Is there a genuine dispute of material fact that the Shepherds are here for three years?

[00:28:23] Speaker 05:
The answer to that question is no.

[00:28:25] Speaker 05:
There's no genuine dispute.

[00:28:26] Speaker 05:
We've put forward – there must be – we've pointed to at least 200 or 300 different instances where these shepherds have been working for three-year periods, and the government has never put any factual support in the record to rebut that.

[00:28:42] Speaker 04:
And I just – I do want to – That's for you to get summary judgment in your favor, right?

[00:28:46] Speaker 04:
That's for – Whereas at this point, the question is whether we should overturn the grant of summary judgment in the government's favor.

[00:28:52] Speaker 05:
Well, so I think that, first of all, I think that, and we're talking about the DHS challenge here.

[00:29:00] Speaker 05:
The reason we lost on summary judgment on the DHS challenge is because the district court misinterpreted what we call the other employment regulation, right?

[00:29:10] Speaker 05:
We provided analysis from when that regulation was first issued in 1987.

[00:29:13] Speaker 05:
It's pretty clear that other employment is about other jobs.

[00:29:16] Speaker 05:
It's from moving from being a H2A peach picker to being an apple picker.

[00:29:20] Speaker 05:
So that doesn't authorize three years of work in the same employment.

[00:29:26] Speaker 05:
We provided that analysis in our opening brief.

[00:29:28] Speaker 05:
The government didn't rebut it.

[00:29:30] Speaker 05:
I also think that, you know, what the district court said is this is, you know, this is a time bar problem for you because you should have been challenging the other employment regulation.

[00:29:40] Speaker 05:
We think that's wrong on two grounds, right?

[00:29:42] Speaker 04:
Yeah, I guess my point is different from that, at least the attempted point is different from that, which is that at this

[00:29:49] Speaker 04:
The posture of the case right now is that the district court granted summary judgment in the government's favor against you.

[00:29:56] Speaker 04:
In order to get that vacated, if you didn't have any evidence at all in the record on a genuine dispute of material fact on whether Shepard's in fact

[00:30:06] Speaker 04:
are here permanently, then the grounds on which the district court may have granted summary judgment against you might not matter, because if you don't have any evidence, then there's no genuine issue anyways in supporting your claim.

[00:30:17] Speaker 04:
So it seems to me your point is, we did raise a genuine issue because we introduced these affidavits.

[00:30:23] Speaker 04:
That's all you need to know.

[00:30:23] Speaker 05:
And I apologize if I misspoke.

[00:30:26] Speaker 05:
We actually think the problem here is that the government hasn't raised a genuine issue.

[00:30:29] Speaker 05:
We've put forward mountains of evidence, and we think that

[00:30:33] Speaker 05:
The proper resolution of the DHS claims as follows, either dispose of the time bar argument because it wasn't raised below and it's non-jurisdictional.

[00:30:43] Speaker 05:
I think that the Spanish case is a drive by jurisdictional ruling or the legal analysis doesn't support that that's actually what we're challenging.

[00:30:53] Speaker 05:
And then the third step is what this court did in Mendoza, which has actually reached the merits.

[00:30:59] Speaker 04:
I'm just saying we wouldn't have to do that because in order to – I think this is a point potentially in your favor.

[00:31:06] Speaker 04:
I'm not saying that we're necessarily there, but which is that for you to get the summary judgment grant against you overturned, you wouldn't have to prove that you're entitled to summary judgment.

[00:31:15] Speaker 04:
You just have to prove that you raised a genuine issue so that it should go back on the question

[00:31:20] Speaker 05:
Oh, to have to have like a trial on whether or not or whatever.

[00:31:24] Speaker 04:
I mean, the district court just hasn't looked at it in the way that you think it should be looked at.

[00:31:27] Speaker 05:
Yeah.

[00:31:27] Speaker 05:
Well, I think that is my wrong about that.

[00:31:31] Speaker 05:
We would be very happy to to litigate those facts below, but we think that the record is sufficient at the court.

[00:31:38] Speaker 04:
You think it would be pretty straightforward below.

[00:31:41] Speaker 05:
but below, but I think that you have the grounds to reach it.

[00:31:44] Speaker 05:
I think Mendoza provides a path forward for that.

[00:31:47] Speaker 05:
I did want to just, I'll talk about wages in the rebuttal, but the government does raise this question about if you reach the issue for DOL,

[00:32:01] Speaker 05:
Is that enough?

[00:32:03] Speaker 05:
Is that a final agency action?

[00:32:04] Speaker 05:
I think, you know, they talk about, if you reach the issue that 215, if you reach the issue that the regulations they issued is arbitrary and capricious, we think that that regulation is final agency action.

[00:32:18] Speaker 05:
We don't think there's any finality frame there.

[00:32:19] Speaker 01:
I don't think you have any questions on that one.

[00:32:21] Speaker 01:
I have one question.

[00:32:25] Speaker 01:
Not necessarily directly relevant, but I'd like to understand it so I understand the case.

[00:32:30] Speaker 01:
You represent both American shepherds and foreign shepherds.

[00:32:33] Speaker 05:
That's correct, and an organization with both.

[00:32:36] Speaker 01:
I understand, but how are the interests of the American and those looking for visas consistent with each other?

[00:32:45] Speaker 05:
You know what I'm asking, right?

[00:32:49] Speaker 01:
So that if all the foreign shepherds get permanent visas, will that drive the Americans out of business?

[00:33:01] Speaker 05:
So we litigated that issue on the motion to dismiss, and we think that it's a win-win for both the American and the foreign shepherds.

[00:33:12] Speaker 05:
What would happen is one of two things.

[00:33:15] Speaker 05:
You rule in our favor, and DOL and DHS have to go back and figure out the seasonal visas.

[00:33:21] Speaker 05:
And I think that if they do seasonal visas, they have this idea that

[00:33:26] Speaker 05:
We can do this monthly wage, but the monthly wage wouldn't work for certain seasons, especially the lambing season, so they'd have to do an hourly wage, and that would raise their wages.

[00:33:34] Speaker 01:
But it would mean they couldn't stay for three years.

[00:33:36] Speaker 05:
Well, I think that it would be – I think it's hard to spec – I don't think we have to – I think that in the short term, you would have – you would probably have more foreign workers continue to work on these seasonal H2As.

[00:33:53] Speaker 05:
It isn't that you're earning more money.

[00:33:54] Speaker 05:
Or the other option, right, is there's an entire separate regulatory framework

[00:33:59] Speaker 05:
for shepherds.

[00:34:00] Speaker 05:
There's so much shepherd stuff in the CFR here that would allow them these green cards.

[00:34:06] Speaker 05:
And I think that the district court accepted this reasoning, and it hasn't been cross-appealed here.

[00:34:12] Speaker 05:
If these workers had green cards, they would vote with their feet to move to different employers, right?

[00:34:19] Speaker 05:
Because they wouldn't be stuck with the visa sponsor.

[00:34:23] Speaker 05:
They could go work in different industries, and that would create

[00:34:27] Speaker 05:
an increase, a natural increase in the wages, right?

[00:34:32] Speaker 01:
That's actually how it worked, right, in the 1950s.

[00:34:34] Speaker 01:
Would it not displace the American shepherds?

[00:34:40] Speaker 05:
I mean, I think it would... I have no idea how the economics... I'm not talking about the public policy question here at all.

[00:34:47] Speaker 01:
I'm just trying to understand how...

[00:34:51] Speaker 01:
The interests of both are advanced by whatever result occurs here.

[00:34:59] Speaker 05:
I think – well, I think that the interests of both are advanced because it seems pretty clear that the wages for those jobs would go up.

[00:35:09] Speaker 05:
I think that the rising tide there would raise the ships of both workers.

[00:35:12] Speaker 05:
Sure, in the long term, maybe some of the H2A workers would be displaced by American workers, because it would cost less to – you wouldn't have to fly them up from Peru, for example.

[00:35:23] Speaker 05:
I don't think – if what your question is driving at is whether or not we have a sort of – some sort of Article 3 problem with representing both those – I really don't think so.

[00:35:31] Speaker 01:
I mean, I've – It might be a problem for your class action, but it's not really a problem for us right now.

[00:35:36] Speaker 01:
Take it the class action is in –

[00:35:38] Speaker 01:
Detroit or something somewhere Denver Denver it was where most of the Starts with a D that starts with a D. That's where most of the shepherds are so it got moved back there Let me just ask if there are questions about the wage issues from the bench because I don't want you to wait for your rebuttal on that We're not 20 over oh, okay, but okay I

[00:36:23] Speaker 00:
Good morning, Your Honor.

[00:36:24] Speaker 00:
My name is Heather Sacklauer, and I'm here on behalf of the government defendants.

[00:36:29] Speaker 00:
Plaintiffs say that they are seeking review of unwritten policies, but as you know, they do not raise this claim in the complaint, and their arguments about the alleged policies change each time they file a brief.

[00:36:38] Speaker 00:
I just understood finally today what they have been arguing about the DHS regulation that allows a specific H2A worker to stay in the country for up to three years at a time.

[00:36:52] Speaker 00:
That regulation does not limit the category of agricultural employment or the occupation that an actual H2A worker

[00:37:08] Speaker 00:
can perform well in the country.

[00:37:09] Speaker 00:
It's not, as you said, I think, an apple pickers to a corn pickers.

[00:37:13] Speaker 00:
It's based on the need of the petitioning employer.

[00:37:17] Speaker 00:
All right.

[00:37:18] Speaker 02:
So in the industry issue here, shepherds, do you dispute that there's a high volume

[00:37:27] Speaker 02:
Request for renewals that are constantly granted.

[00:37:31] Speaker 00:
Yeah, I I don't have that data It's not in the record plaintiff didn't provide it.

[00:37:37] Speaker 00:
He did cite other deal data, which is publicly available on the website I I didn't personally go through and pull out the shepherds and look at their dates and the renewals and compare them year-to-year But but the data isn't in the record But does DOL have that data

[00:37:57] Speaker 00:
I don't personally know whether they've compiled it and compared all of the various years.

[00:38:03] Speaker 02:
Wouldn't they just know how many renewal requests they got in a given year and what their action was on them?

[00:38:10] Speaker 02:
They would be able to compile that, yes.

[00:38:17] Speaker 01:
What do you mean when you say you only just realized our argument about Section 214?

[00:38:21] Speaker 01:
They make it pretty clearly on page 13 of their reply brief.

[00:38:26] Speaker 00:
I wasn't understanding that they believed that the agricultural employment as a general matter rather than an employer-specific matter was being assessed.

[00:38:40] Speaker 00:
The regulations that DHS has, and as explained in the Office of Legal Counsel memo that plaintiffs counsel cites, explains that it's based on the petitioning employer's need for the work, not the general occupation.

[00:38:56] Speaker 01:
So what does it mean when it says an alien may remain longer to engage in other qualifying temporary agricultural employment?

[00:39:04] Speaker 01:
What does other mean?

[00:39:06] Speaker 00:
It would be something that a party petitions for.

[00:39:12] Speaker 01:
But other still has to be something other than something.

[00:39:15] Speaker 01:
Other than what?

[00:39:16] Speaker 00:
Other than what they were doing before.

[00:39:23] Speaker 00:
DHS assesses the petitions based on the employer that files them.

[00:39:29] Speaker 01:
I understand, but what does the word other mean?

[00:39:34] Speaker 01:
It's limits on an individual's stay and an alien

[00:39:43] Speaker 01:
may remain longer to engage in other qualifying temporary agricultural employment.

[00:39:48] Speaker 01:
What does it mean?

[00:39:50] Speaker 00:
I don't have a specific answer to that.

[00:39:52] Speaker 01:
So then you can't really say that it doesn't mean what the other side says?

[00:39:59] Speaker 00:
That would be correct.

[00:40:01] Speaker 00:
I was understanding that regulation and I believe, but I would have to check, that it

[00:40:09] Speaker 00:
pertains to the type of work, or it pertains to the petition that is being filed by the employer to employ that worker.

[00:40:21] Speaker 00:
But we don't have data on whether what plaintiffs allege is happening.

[00:40:27] Speaker 00:
He hasn't sought that from DHS.

[00:40:29] Speaker 00:
In his claim, he only challenges the actual DOL 2015 rule.

[00:40:35] Speaker 00:
He agreed that the case should be decided on the administrative record, and specifically the administrative record produced by the Department of Labor.

[00:40:43] Speaker 00:
And there is nothing in that record that pertains to DHS's decision-making process.

[00:40:50] Speaker 04:
Can I just ask a conceptual question?

[00:40:54] Speaker 04:
In order for the visa ultimately to be approved and let's just take DHS's role in it.

[00:41:00] Speaker 04:
Okay.

[00:41:03] Speaker 04:
Then that's the petition.

[00:41:04] Speaker 04:
That's the approval of the visa petition.

[00:41:06] Speaker 04:
That's what DHS does.

[00:41:08] Speaker 00:
No, so DHS approves a visa petition that is filed on behalf of a beneficiary.

[00:41:16] Speaker 00:
Sometimes they can be unnamed in the HTA process.

[00:41:19] Speaker 04:
So it's not the certification stage, that's DLL, but then we get to the visa petition stage, that's DHS.

[00:41:24] Speaker 00:
Correct, and that's never issued for more than 364 days at a time.

[00:41:28] Speaker 04:
Right, so my question is this.

[00:41:32] Speaker 04:
Suppose it's true that shepherds are essentially permanent.

[00:41:37] Speaker 04:
that they're not temporary, then it should also be true that visa petitions that are presented on an assumption that they're temporary shouldn't be approved because, in fact, they're permanent.

[00:41:52] Speaker 04:
I yeah I is that true or do you agree with that or do you disagree with that?

[00:41:55] Speaker 00:
Well I I mean I could speculate that's my own personal opinion but DHS is interpretation of their own statutory length or the statutory language Congress has asked them to interpret is not in the record so

[00:42:11] Speaker 04:
I guess it's just a very basic question.

[00:42:15] Speaker 04:
Maybe it's so basic that you're not perceiving it this way.

[00:42:20] Speaker 04:
But as I understand their claim, they're saying, look, this is a regulatory regime that's supposed to allow for temporary visas.

[00:42:30] Speaker ?:
Yes.

[00:42:30] Speaker 04:
But really, it's a sham because nobody's really thinking that these are temporary.

[00:42:38] Speaker 04:
They're actually permanent.

[00:42:40] Speaker 04:
Everybody understands that the shepherds are coming here for a more permanent basis than 364 days.

[00:42:46] Speaker 04:
And so whatever DHS's role is in authorizing these supposedly temporary petitions, DHS should be doing something different.

[00:42:56] Speaker 04:
They should be denying them because they're not actually temporary.

[00:42:59] Speaker 04:
They're, in fact, permanent.

[00:43:01] Speaker 04:
So they shouldn't be getting these visa petitions.

[00:43:05] Speaker 00:
It's interesting that nobody of the 560 unique comments that were submitted during the rulemaking proceeding, nobody raised this as an issue.

[00:43:15] Speaker 00:
that a 364-day period, a maximum period, would be a problem, and plaintiffs didn't.

[00:43:23] Speaker 01:
Well, can I take a look on page 62-999 of the final rule?

[00:43:29] Speaker 01:
It says, comments on temporary need.

[00:43:34] Speaker 01:
Several employer comments indicated that they re-employed the same H-2A workers over the years.

[00:43:42] Speaker 00:
yes and that that could be we don't know that and it couldn't possibly be consecutively given that you can't get a certification for a full year.

[00:43:50] Speaker 00:
We don't know what the temporal period is.

[00:43:54] Speaker 00:
There are many agricultural employers that employ H2A workers over the year for shorter span of time.

[00:44:02] Speaker 00:
So it could be seasonal.

[00:44:04] Speaker 01:
You are disputing that they normally re-up for three years?

[00:44:11] Speaker 00:
I'm saying that we don't

[00:44:12] Speaker 00:
don't have that answer in the record.

[00:44:14] Speaker 00:
It's not clear.

[00:44:15] Speaker 00:
Plano hasn't provided the data to respect.

[00:44:19] Speaker 04:
And this is with respect to the DOL rules, 62999 and 6300.

[00:44:23] Speaker 04:
Am I understanding that right?

[00:44:25] Speaker 00:
There is anecdotal evidence that some employers have said this.

[00:44:28] Speaker 00:
It's not clear.

[00:44:29] Speaker 04:
No, I'm just saying that it's not with respect to DHS's practice.

[00:44:32] Speaker 04:
This is with respect to the DOL rule.

[00:44:34] Speaker 00:
OK.

[00:44:35] Speaker 04:
Is that right?

[00:44:36] Speaker 04:
I'm sorry, I didn't.

[00:44:38] Speaker 04:
The exchange that you were just having with Chief Judge Garland about 62999,

[00:44:41] Speaker 04:
And 63,000.

[00:44:42] Speaker 04:
Is that with respect to the DOL rule?

[00:44:44] Speaker 00:
This is all DOL's conclusion.

[00:44:46] Speaker 00:
DOL makes a separate assessment from DHS and the ultimate assessment is made by DHS.

[00:44:52] Speaker 00:
DOL is assessing the effect on the labor market.

[00:44:55] Speaker 00:
I mean, DOL is assessing the effect on the labor market.

[00:45:00] Speaker 00:
is the final arbiter of that language defining the H2A classification.

[00:45:07] Speaker 04:
So with respect to the DHS piece of it, I guess I'm trying to understand what you think plaintiffs are required to do.

[00:45:13] Speaker 04:
Because if they say

[00:45:16] Speaker 04:
If they just start with a legal premise, the legal premise of which is that if these workers are in fact permanent, they shouldn't be getting approval on a temporary basis.

[00:45:26] Speaker 04:
That seems to, that, correct me if I'm wrong, but that just seems to me to be an indisputable proposition.

[00:45:32] Speaker 04:
That seems just right as a matter of law, that if in fact they're permanent, they shouldn't be getting approval on a temporary basis.

[00:45:38] Speaker 00:
Yeah, now I understand your question.

[00:45:41] Speaker 00:
Yeah, if they are permanent workers, then they shouldn't get approval on a temporary basis.

[00:45:44] Speaker 00:
Right.

[00:45:46] Speaker 00:
discrete instance in which this has happened, which is how APA review is supposed to work.

[00:45:52] Speaker 04:
Well, so that's the question.

[00:45:53] Speaker 04:
So that's what I want to get to.

[00:45:54] Speaker 04:
So now we agree on the legal presumption, the assumption that there is, at least in theory, a potential claim here.

[00:46:01] Speaker 04:
Then the question becomes, what are they supposed to state in order to get that claim heard?

[00:46:05] Speaker 04:
And if they say, look, we've got some people for whom we have declarations who say that they just got automatically renewed, so it seems to us that they're basically permanent.

[00:46:16] Speaker 04:
And if the allegation is that DHS just has a practice of just rubber stamping this,

[00:46:21] Speaker 04:
They don't even look to see whether these folks are in fact temporary or permanent.

[00:46:26] Speaker 04:
They just assume that they're temporary when in fact they're not.

[00:46:29] Speaker 04:
And maybe DHS has some secret memo in a file somewhere that says we're going to approve these even though they're in fact permanent.

[00:46:40] Speaker 04:
approve them anyway.

[00:46:41] Speaker 04:
They don't know any of that.

[00:46:43] Speaker 04:
They're making an assertion based on the folks for whom that they have declarations and an observation as to the practice.

[00:46:51] Speaker 04:
And what do you – I'm not saying that you're necessarily wrong in saying they need to do something other than that.

[00:46:56] Speaker 04:
I'm just trying to understand what you're saying.

[00:46:57] Speaker 00:
That would suggest that DOL is violating its own regulation here that says that they're not going to issue a certification for a period of greater than 360 days.

[00:47:11] Speaker 00:
Yeah, I think they are.

[00:47:11] Speaker 00:
There's no possible way to get a consecutive three year.

[00:47:16] Speaker 00:
But I think they are.

[00:47:16] Speaker 04:
I think as I understand they're brief and they can correct

[00:47:19] Speaker 04:
correct me on rebuttal, but as I understand their argument, they are saying that DHS is not acting in compliance with its own regulatory framework.

[00:47:28] Speaker 00:
In terms of what, so there would never be a period of more than 364 days approved that would go.

[00:47:36] Speaker 00:
Well, the renewal, that's the renewals.

[00:47:38] Speaker 00:
Could you get a renewal on the next day?

[00:47:40] Speaker 00:
So as far as it goes, the back-to-back with the 300s, you know, I don't have, I

[00:47:45] Speaker 00:
I'm sorry, I must have misunderstood your question.

[00:47:47] Speaker 00:
I thought you meant consecutively without the extra day, the 365 days of the year.

[00:47:55] Speaker 00:
You know, I can't speak to what DHS's position would be on the 365 day consecutive, you know.

[00:48:06] Speaker 00:
entire year.

[00:48:08] Speaker 00:
There's a renewal process, correct?

[00:48:11] Speaker 00:
There is no renewal process.

[00:48:13] Speaker 00:
There is an extension of status for the petitioner.

[00:48:20] Speaker 00:
How long can the extension be for?

[00:48:25] Speaker 00:
you would need a labor certification so it could never be more than three hundred and sixty-four so it's three years it's three days shy of three years that they're getting so plaintiffs believe that's a problem then I think that they should petition DHS to either adopt a Shepard specific rule or to well you already have a rule that says that

[00:48:49] Speaker 02:
The employer's need for a position must be temporary and will not be more than a year, except in extraordinary circumstances.

[00:49:01] Speaker 02:
Do you have a sense of what extraordinary circumstances mean?

[00:49:05] Speaker 02:
What has DOL said?

[00:49:06] Speaker 02:
Sorry, DHS or DOL?

[00:49:08] Speaker 02:
Either one said about, I guess these are DHS, right?

[00:49:12] Speaker 02:
So DHS has said it's got to have extraordinary circumstances to have more than a year.

[00:49:19] Speaker 02:
Is that being demanded of?

[00:49:21] Speaker 02:
The employers?

[00:49:23] Speaker 00:
If so, what are they showing?

[00:49:24] Speaker 00:
I wouldn't know, because plaintiff hasn't pointed us to an action in which this has allegedly occurred, which is kind of a burden to bring an APA claim.

[00:49:34] Speaker 04:
What if somebody came forward and said, we want the 364-day visa.

[00:49:39] Speaker 04:
By the way, we're going to, everybody understands what's going on here, we're going to get it renewed 27 times.

[00:49:44] Speaker 04:
in a row.

[00:49:46] Speaker 04:
We're just going to do that.

[00:49:47] Speaker 04:
And you know that, we know that.

[00:49:49] Speaker 04:
Everybody understands that this is just going to be basically an automatic renewal 27 times.

[00:49:54] Speaker 04:
And your view is that that's perfectly fine?

[00:49:58] Speaker 00:
My view is that DHS has not spoken to this because plaintiffs haven't presented it as an issue to them, and nobody presented this as an issue during DOL's rulemaking proceeding, where worker advocates and the organization that initially employed plaintiffs counsel submitted a comment, and nobody suggested this as an issue.

[00:50:15] Speaker 02:
I guess I just don't understand that.

[00:50:18] Speaker 02:
I mean, I guess you've got your procedural arguments, but their brief is filled with, come on.

[00:50:24] Speaker 02:
And it's filled with evidence from the Range Association and it's filled with evidence from Shepard's.

[00:50:31] Speaker 02:
And so I find it a little odd that DOL and DHS wouldn't in the course of this litigation said, are we doing that?

[00:50:41] Speaker 02:
You weren't confused that that was their argument in this case, were you?

[00:50:47] Speaker 00:
I was not.

[00:50:48] Speaker 00:
I think that they have not presented this to DHS to provide an opinion on, and there's therefore no way... What do you mean present to provide an opinion on?

[00:50:58] Speaker 02:
What they're saying is you're doing stuff.

[00:51:00] Speaker 02:
Your folks are out there stamping these visas, knowing that they're going to get renewed, and you're stamping the renewals.

[00:51:06] Speaker 02:
What opinion are they supposed to ask for?

[00:51:08] Speaker 00:
Well, they say that, and they point to some anecdotal evidence, but most of it is based on... But you never denied it.

[00:51:15] Speaker 00:
Well, most of it is based on... I don't have the data to confirm or deny.

[00:51:21] Speaker 00:
consistent 364-day request as being.

[00:51:26] Speaker 02:
They quote, sorry, I think it's DOL.

[00:51:29] Speaker 02:
I can't remember DOL or D-A-H-S.

[00:51:31] Speaker 02:
They cite documents from them saying that these folks have never really been temporary or seasonal.

[00:51:39] Speaker 00:
I think that the language that you're pointing to does not say all, which is plaintiff's claim.

[00:51:44] Speaker 00:
And he's thinking to preclude categorically every single

[00:51:49] Speaker 00:
Shepard petition.

[00:51:51] Speaker 00:
He just doesn't analyze the petitions on an occupation-specific basis.

[00:52:00] Speaker 04:
But you say that.

[00:52:01] Speaker 04:
I mean, what they're saying is, sure, they have to go on an individual-by-individual basis because there's nothing to approve until someone presents them something to approve, but then there's

[00:52:10] Speaker 04:
a de facto, a policy of not looking to see whether, in fact, this person's gonna be temporary.

[00:52:16] Speaker 04:
It's just a rubber stamp.

[00:52:18] Speaker 00:
He hasn't pointed to any evidence that this is continually happening.

[00:52:24] Speaker 00:
He could have stopped data to show that this was in fact.

[00:52:29] Speaker 02:
JA884 has the Department of Labor saying, who followed this procedure, irrespective of the fact that most

[00:52:38] Speaker 02:
shepherding jobs are neither temporary nor seasonal in nature.

[00:52:45] Speaker 02:
We let them in for a cumulative period not to exceed three years.

[00:52:53] Speaker 02:
The Department of Labor concluded that most shepherding jobs are neither temporary nor seasonal.

[00:53:01] Speaker 00:
I believe that was in 1991 and that would

[00:53:05] Speaker 00:
But it was 2001.

[00:53:07] Speaker 00:
I'm sorry.

[00:53:08] Speaker 00:
Yes.

[00:53:08] Speaker 00:
Has it changed?

[00:53:10] Speaker 00:
I don't know.

[00:53:12] Speaker 00:
It wasn't asked or presented as an issue to certify these petitions for up to 364 days at a time during the rulemaking.

[00:53:22] Speaker 00:
And so the department put the question out to the public and asked, should these be

[00:53:33] Speaker 00:
certified on different seasons based on the lambing season and the more open range season.

[00:53:41] Speaker 00:
And there wasn't a clear consensus on whether there were particular seasons.

[00:53:47] Speaker 00:
And so given that there was, they reviewed the evidence and concluded there was no reason to depart from their historical practice.

[00:53:59] Speaker 02:
The historical practice being treating them as seasonal and temporary, even though they're not.

[00:54:04] Speaker 00:
Well, they determined that 364 days or less did meet the temporary standards, and nobody challenged that.

[00:54:13] Speaker 00:
And to allow plaintiffs to come

[00:54:16] Speaker 00:
a little over two months after the comment period end and raise it in court, you know, the whole purpose of notice and comment is to provide the agency an opportunity to respond.

[00:54:25] Speaker 02:
Well, it's to put the agency on notice, but I don't know, I should think the agency would be on notice of what it's doing.

[00:54:33] Speaker 02:
So it's not a question of an argument.

[00:54:35] Speaker 02:
It was the agency on notice that was not only doing 364-day renewals, days, but then renewing them routinely for three years.

[00:54:45] Speaker 02:
Does the party have to come say that to you?

[00:54:48] Speaker 02:
Aren't you already on notice about your own?

[00:54:49] Speaker 02:
You should know what your own practices are.

[00:54:51] Speaker 02:
No one should have to raise that to you.

[00:54:53] Speaker 00:
Well, they concluded that a period of 364 days would be temporary.

[00:54:58] Speaker 02:
Yes, but what they don't do is then go, and we know already, because we're the ones doing it, that we renew that all the time.

[00:55:05] Speaker 02:
And so when we say 364 days, we really mean three years.

[00:55:09] Speaker 02:
Did someone have to say to you that, or are you not charged with knowledge of the practice you're already engaged in?

[00:55:14] Speaker 02:
If you're not doing it, that would have been easy to say in this case.

[00:55:18] Speaker 00:
I think somebody would have to suggest that that would not comport with the regulation, but either way, if DHS

[00:55:25] Speaker 00:
Whatever the Department of Labor decides on a particular application, DHS has the full authority to look at it and say this is not temporary.

[00:55:35] Speaker 00:
And they are the primary interpreter.

[00:55:38] Speaker 02:
They're either not doing it or they've decided that three years is temporary.

[00:55:43] Speaker 02:
Those are sort of the two.

[00:55:44] Speaker 02:
They're either not doing the renewals or they've decided that three years are temporary.

[00:55:48] Speaker 02:
And it seems to me as to either of those, the agency is on notice of what it's doing.

[00:55:52] Speaker 00:
Well, we don't know.

[00:55:54] Speaker 00:
They could be asking for periods of six months.

[00:55:58] Speaker 00:
you know, once a year for six months.

[00:56:02] Speaker 02:
You all have the extension process.

[00:56:03] Speaker 02:
It's your extension process.

[00:56:05] Speaker 02:
And so you would know already whether you're doing it a lot or not and what types of

[00:56:10] Speaker 02:
require, you know, what kind of showing your need extraordinary circumstances before you're going more than 364 days.

[00:56:17] Speaker 00:
I think to evaluate that you would need the actual data and that's why the APA requires a party to point to a discrete action.

[00:56:25] Speaker 00:
You have that data, they don't have it.

[00:56:27] Speaker 00:
The DOL data is publicly disposable and the plaintiffs used it and

[00:56:32] Speaker 00:
calculated specific hours requirements.

[00:56:35] Speaker 02:
So then you have access to that same data.

[00:56:37] Speaker 02:
So you can answer the question for us.

[00:56:40] Speaker 02:
If we wanted to know the answer to that question, you could answer it for us.

[00:56:42] Speaker 02:
You said it's publicly available.

[00:56:44] Speaker 00:
You would have to.

[00:56:45] Speaker 00:
All of the data is publicly available.

[00:56:47] Speaker 00:
You would have to sort it and pull out the various employers and the sheep herder positions and

[00:56:53] Speaker 00:
and analyze it.

[00:56:55] Speaker 00:
I mean, there isn't a specific, you know, these are all sheep herder positions and let's compare them year by year.

[00:57:02] Speaker 00:
I'm saying if plaintiff's counsel had wanted to do that and did access that data for his wage claims, he could have put together a chart showing

[00:57:10] Speaker 00:
what in fact happens, but I think this is all sort of beside the point because the APA just doesn't allow for a challenge like this on these fact-specific petitions.

[00:57:21] Speaker 04:
That's what I don't understand.

[00:57:22] Speaker 04:
Why not?

[00:57:23] Speaker 04:
Because if, at least with the DHS piece of it,

[00:57:27] Speaker 04:
I know you have an evidentiary objection, which is that they should have put together more data points and could have presented the data differently in order to get over the bar of summary judgment.

[00:57:37] Speaker 04:
I think I understand that.

[00:57:38] Speaker 00:
But they didn't even raise it initially in their complaint, I guess, would be our first.

[00:57:42] Speaker 00:
They didn't raise what in their complaint?

[00:57:46] Speaker 00:
The rubber stamping, as they call it, idea.

[00:57:50] Speaker 04:
How do you read the sixth count of the complaint?

[00:57:54] Speaker 00:
At the top of the complaint says it is with respect to the 2015 rule and plaintiffs submitted a status report to the court indicating that they agreed the case was to be decided on the administrative record and that the record consisted of the record, the DOL certified and submitted an index at UCSF.

[00:58:17] Speaker 00:
Well they're saying what happened, go ahead.

[00:58:19] Speaker 04:
On the complaint, for example, paragraph 114, little i says authorizing permanent herder jobs that are not temporary or seasonal.

[00:58:31] Speaker 04:
So that's their claim, which I think is at least consistent with what they're saying now.

[00:58:35] Speaker 04:
Authorizing permanent herder jobs that are not temporary or seasonal.

[00:58:38] Speaker 04:
And then it points to DHS's role in doing that.

[00:58:41] Speaker 04:
DHS's actions in authorizing H2A visa petitions.

[00:58:45] Speaker 04:
violates this because what they're doing is they're authorizing permanent herder jobs that are not temporary or seasonal.

[00:58:50] Speaker 00:
And they allege that DHS is doing this in accordance with DOL's rule, but DHS is not bound by DOL's rule or DOL's determination of temporary.

[00:59:04] Speaker 01:
Let's just hypothesize for a moment.

[00:59:06] Speaker 01:
Let's say it is the case that in more than half of the Shepard

[00:59:12] Speaker 01:
visa applications are renewed every single time for three years.

[00:59:18] Speaker 01:
They would have an argument that that's in violation of the requirements of temporary and seasonal, wouldn't they?

[00:59:24] Speaker 01:
Whether or not you would agree, they would certainly have an argument that that's not temporary or seasonal.

[00:59:28] Speaker 00:
They would have an argument, but I think this is more analogous to something like Lujan where Justice Goliath said, you know, there may be problems in this program, but you can't challenge it.

[00:59:42] Speaker 01:
Yeah, because that was an entire program of changing everything with respect to land use.

[00:59:49] Speaker 01:
He said that was no more identifiable as an agency action.

[00:59:53] Speaker 01:
as the weapons procurement program or the drug interdiction program.

[00:59:57] Speaker 01:
Here it's a very specific action that's being targeted.

[01:00:01] Speaker 01:
It's the two-time renewal of one year at the best visas.

[01:00:06] Speaker 01:
That's a lot narrower than what was going on in Lujan.

[01:00:10] Speaker 00:
If they could bring a claim like that, then they should

[01:00:14] Speaker 00:
I have at least, first of all, not agreed that the case was to be decided on the administrative record because I don't think that the DOL rules.

[01:00:21] Speaker 01:
I understand your, we understand your procedural argument and your evidentiary argument.

[01:00:27] Speaker 01:
But imagine, I'm asking again as a hypothetical, that the evidence showed that 50% of the visas are

[01:00:36] Speaker 01:
renewed at least twice so that shepherds who supposedly are coming temporarily or seasonally are actually here for three years.

[01:00:47] Speaker 01:
Now, why couldn't – that is not a Luhan problem.

[01:00:51] Speaker 01:
That is a specific policy, which is, you know, then it can be decided on summary judgment whether it actually occurred or didn't occur.

[01:00:58] Speaker 01:
But that's no longer some widespread attack on a government program.

[01:01:03] Speaker 01:
It's a very specific claim that there's a violation of one specific statutory section by one specific kind of action, namely constant renewals.

[01:01:12] Speaker 00:
But to get there, you would have to assess what the petitioner has provided to DOL or DHS, and they assess them on a case- So you have the, what you said was 1990 was actually a 2001 statement by the Department of Labor, that they're not really seasonal, they're renewed.

[01:01:33] Speaker 01:
So now you're, that would be enough, would it not, if it weren't for the fact it was in 2001?

[01:01:40] Speaker 00:
I think, well, DOL makes a separate assessment, which is focused on the effect on the labor market, whereas DHS is the one that's the ultimate arbiter of... This is an empirical statement by DOL that that's what is happening.

[01:01:55] Speaker 01:
This is not a question of assessment.

[01:01:57] Speaker 01:
It's saying that there really aren't any temporary or seasonal shepherds.

[01:02:02] Speaker 01:
They're here permanently.

[01:02:04] Speaker 01:
That's not a question of whether

[01:02:07] Speaker 01:
something under one or the other's jurisdiction.

[01:02:10] Speaker 01:
That's just an empirical fact they're stating.

[01:02:13] Speaker 00:
When they say most, they don't say all.

[01:02:15] Speaker 00:
And is that cause to exclude them all from the program?

[01:02:19] Speaker 01:
Is it possible that two shepherds sitting next to each other, one is there temporarily for 20 years, and one is there even if they exclude somebody else?

[01:02:32] Speaker 01:
That doesn't really solve the problem.

[01:02:33] Speaker 01:
And certainly, it doesn't solve the seasonal problem if they're in the same state.

[01:02:37] Speaker 00:
These are all questions that I think that the plaintiffs should have presented to DOL during the rulemaking if they believed that this would be an issue and it's hard, I can't speak on behalf of you.

[01:02:48] Speaker 01:
I thought this was a DHS, this is an attack on what DHS does with the DOL applications.

[01:02:54] Speaker 00:
And they could certainly petition DHS for a Shepard-specific regulation if they believe one is necessary.

[01:03:00] Speaker 04:
They could, of course they could do that, but the question is do they have to or can they bring this litigation?

[01:03:06] Speaker 04:
If you focus on DHS, then you don't have the argument that the challenge to the DLL rule wasn't adequately flagged if you just focus on DHS practice.

[01:03:17] Speaker 04:
Right.

[01:03:17] Speaker 04:
That argument goes away.

[01:03:19] Speaker 00:
That does, but they haven't identified any instances in which DHS has done this, and to the relief that they're speaking English.

[01:03:28] Speaker 04:
You're saying they haven't identified any?

[01:03:29] Speaker 04:
Because I thought they have some declarations of actual people.

[01:03:33] Speaker 00:
So, well, we don't know what was before DHS when DHS approved this petition.

[01:03:39] Speaker 04:
But we know it got approved.

[01:03:41] Speaker 00:
For instance, his John Doe allegation says he worked

[01:03:43] Speaker 00:
for several ranches in Colorado.

[01:03:45] Speaker 00:
DHS is looking at the employer.

[01:03:49] Speaker 00:
So we know that John Doe has been, if taken at his word, he says he's been here for three years, but that would be consistent with the provision that allows an H2A worker to remain in the United States for three years at a time.

[01:04:12] Speaker 04:
Because it's different ranches.

[01:04:13] Speaker 04:
That's the argument there.

[01:04:15] Speaker 00:
Well, I don't have a position on that, because that isn't in the record.

[01:04:22] Speaker 00:
That's the whole point of doing review on the record, that we can assess what an agency did or did not do in the position that they took.

[01:04:29] Speaker 04:
But it just gives me a different point to say, and I'm not saying you're necessarily right or wrong, it's a different argument to say they haven't come forward with enough to bolster their claim than it is to say,

[01:04:39] Speaker 04:
their claim can't be asserted because they're bringing something that's foreclosed by Lujan.

[01:04:44] Speaker 04:
They're bringing a challenge to an unwritten rule.

[01:04:47] Speaker 04:
They're doing something that makes the claim of by nature flawed as opposed to saying they have a claim that by nature actually could go forward.

[01:04:54] Speaker 04:
It's just that they haven't done enough to bolster it evidentially.

[01:04:57] Speaker 04:
And those seem to be two different baskets of arguments.

[01:05:01] Speaker 00:
I see this distinction as how is the

[01:05:05] Speaker 00:
How is DHS ever supposed to respond to their argument or how is the court supposed to assess, you know, concretely what exactly is that issue if they aren't at the minimum identifying a discrete set of actions that we can look at and say, okay, what is going on here?

[01:05:26] Speaker 01:
approve three-year renewals.

[01:05:29] Speaker 01:
That is, we don't give two more renewals.

[01:05:31] Speaker 01:
We just don't do that.

[01:05:32] Speaker 01:
Or we only do that in extraordinarily limited cases.

[01:05:38] Speaker 01:
They could say that.

[01:05:39] Speaker 01:
That would be responsive.

[01:05:40] Speaker 01:
And that would probably eliminate their claim that there's a policy.

[01:05:44] Speaker 02:
And you say you have the records to prove it.

[01:05:47] Speaker 00:
I don't have the DHS records.

[01:05:51] Speaker 00:
You said there's public records.

[01:05:52] Speaker 00:
There are DOL records that are public.

[01:05:55] Speaker 00:
Yeah, plaintiff didn't seek through discovery DHS's records.

[01:05:59] Speaker 00:
I don't have any knowledge today of how available those records are.

[01:06:05] Speaker 04:
Well, if they can't make that statement, it seems like a problem.

[01:06:10] Speaker 00:
I don't think you have to get there.

[01:06:13] Speaker 00:
Because they didn't present that claim, and they didn't identify a discrete set, at least, of actions, I don't

[01:06:25] Speaker 00:
Are they alleging that every single petition for a cheap herder isn't temporary?

[01:06:30] Speaker 00:
I mean, DHS doesn't organize their adjudications process through agricultural occupations.

[01:06:38] Speaker 00:
in the first place.

[01:06:39] Speaker 00:
So I don't know that they'd even be able to aggregate the data in that way.

[01:06:43] Speaker 01:
But you said they come from employers.

[01:06:45] Speaker 00:
They do.

[01:06:46] Speaker 01:
And DHS doesn't know who the employee is.

[01:06:49] Speaker 01:
DHS would be incapable of determining whether the employer was a sheep ranch.

[01:06:53] Speaker 00:
I mean, the plaintiff's counsel never asked us.

[01:06:58] Speaker 01:
You don't know.

[01:06:59] Speaker 01:
When you just said that they don't categorize by kind of employment, you don't know whether that's true or not.

[01:07:06] Speaker 00:
I would have to confirm with them.

[01:07:12] Speaker 01:
You don't know the answer.

[01:07:13] Speaker 00:
I don't.

[01:07:13] Speaker 00:
I'm not positive on the answer.

[01:07:15] Speaker 00:
That is what I believed to be the case that I would have to check.

[01:07:21] Speaker 00:
I know that they review visa petitions on a case-by-case basis.

[01:07:29] Speaker 01:
Okay, further questions?

[01:07:30] Speaker 01:
Thank you.

[01:07:31] Speaker 01:
I will give you two more minutes for a rebuttal.

[01:07:39] Speaker 01:
But since we didn't talk about wages, it's not really rebuttal to anything.

[01:07:42] Speaker 01:
Since we didn't talk about wages yet, it's not really rebuttal.

[01:07:48] Speaker 01:
So if you just take the time to rebut statements made by opposing counsel.

[01:07:53] Speaker 05:
Sure.

[01:07:55] Speaker 05:
These citations are throughout our brief, but I just want to put them in one place for the court.

[01:07:59] Speaker 05:
There's ample evidence in the administrative record that Shepard's are here for three years.

[01:08:03] Speaker 05:
Let me just give you the list.

[01:08:05] Speaker 05:
JA 478, it's a factual finding by the district court that they're here for three years.

[01:08:09] Speaker 05:
The district court says some ranchers employ them for 20 years.

[01:08:13] Speaker 05:
Judge Garland, you referenced 90 FedReg 6299 talking about how they're re-employed over the years.

[01:08:19] Speaker 05:
JA 795, it's the comment that we quote in our brief about

[01:08:24] Speaker 05:
how a rancher saying calling these visas temporary is quote misleading.

[01:08:28] Speaker 05:
We have employed people here for 20 years.

[01:08:30] Speaker 05:
JA777 is the sit away comment and that comment talks is heavily relied upon in the rulemaking.

[01:08:36] Speaker 05:
In that comment, sit away says that all of our shepherds come here for two, three year contracts and often they go back to Peru.

[01:08:45] Speaker 05:
In the NPRM 8FEDREG20314, it's JA547.

[01:08:52] Speaker 05:
It talks about a permanent domestic shortage of shepherd labor.

[01:08:56] Speaker 05:
And then if you go to the industry comment, it's JA693.

[01:09:00] Speaker 05:
Again, there's a talking about permanent need for these workers.

[01:09:05] Speaker 05:
That's from Western Range and from Mountain Plains, the two chief employers of all H2A.

[01:09:11] Speaker 05:
I can provide additional sites, but I think I might be beating a dead horse.

[01:09:16] Speaker 01:
Why didn't you try to get discovery on the data from HHS or GOL?

[01:09:22] Speaker 05:
We honestly didn't think we needed discovery in light of what seems abundantly clear, an essential element of being an H2A shepherd is working here for three years.

[01:09:37] Speaker 02:
Well, showing the renewal pattern would be pretty powerful evidence, would it not?

[01:09:40] Speaker 02:
If you want to talk about unwritten rule, but showing that it's all these individual decisions are again and again and again making the same renewal decision without any

[01:09:51] Speaker 02:
apparent evidence of avalanche of extraordinary circumstances, that would be.

[01:09:57] Speaker 05:
Right.

[01:09:58] Speaker 05:
So I think that the way that we tried to establish the renewal issue was by pointing to plaintiff, for example, plaintiff John Doe, who's actually been here for nine years and he's with the same employer, Western Range.

[01:10:11] Speaker 02:
But you're trying to show not that it happened to this person or that person.

[01:10:14] Speaker 02:
My understanding is you're, again, with the language in the complaint that, in fact,

[01:10:19] Speaker 02:
DOL and DH together have created a permanent, class of permanent shepherds, not seasonal or temporary.

[01:10:29] Speaker 02:
So this person here and that person there seems to be evidence, but a pattern of renewals would be

[01:10:37] Speaker 05:
Right.

[01:10:38] Speaker 05:
I mean, I think you also cited the JA-884, I believe, the 2001 rule.

[01:10:44] Speaker 05:
Again, that shows this, you know, what they said in 2001 is still true today.

[01:10:51] Speaker 05:
They haven't rebutted that.

[01:10:52] Speaker 05:
They say that, you know, these are three-year visas.

[01:10:57] Speaker 05:
You do one year, and then it's renewed, and then it's renewed again.

[01:11:00] Speaker 05:
And that would point to evidence of

[01:11:05] Speaker 05:
of the renewals.

[01:11:08] Speaker 05:
I am confident standing here today that virtually all shepherds are here for three-year periods.

[01:11:17] Speaker 05:
If we need remand to further establish that undisputed fact, I'm willing to accept the judgment of the court, but I just don't see... Well, your opposing colleagues disputes it.

[01:11:31] Speaker 01:
I'm not saying you need remand, but I'm not sure we can call that undisputed.

[01:11:35] Speaker 05:
Okay, well, there's been no genuine dispute.

[01:11:39] Speaker 05:
I've never heard anything from the government saying that these are anything but three-year visas, and that's what we've been sort of screaming to the high heavens since the beginning of this case.

[01:11:54] Speaker 01:
What you understand happens on the 365th day.

[01:11:58] Speaker 05:
So it isn't as a practical matter and if you look at The helpful from the industry perspective just so you kind of understand this you can look at It's we quoted in our briefs like I don't have it in front of me but the 36 month period

[01:12:16] Speaker 05:
The quote from the Western Range Association talking about this is a 36-month work period, they sort of outline in that same authority how they seek the renewals.

[01:12:28] Speaker 05:
They normally, you know, ask for from DOL for the renewal, you know, two to three months before the

[01:12:38] Speaker 05:
The deadline for for you know, keeping the worker in the United States because there's a bit of a there's a lag time, right?

[01:12:43] Speaker 05:
No one starts on the What would be the 365th day the what they do is they say?

[01:12:51] Speaker 05:
This visa will expire on X date.

[01:12:57] Speaker 05:
I want the visa to begin on X plus one.

[01:13:00] Speaker 04:
So there's no gap?

[01:13:01] Speaker 04:
There's not even a one day gap or a one hour gap?

[01:13:04] Speaker 04:
It's just a continuation?

[01:13:06] Speaker 05:
It's just a continuation.

[01:13:07] Speaker 05:
The workers are hardly even aware of it.

[01:13:10] Speaker 01:
The touchback you're talking about happens at the end of three years?

[01:13:14] Speaker 05:
Yes, that's the rancher's term.

[01:13:16] Speaker 05:
And that's for the return on for three months.

[01:13:23] Speaker 05:
Did you want me to I did have something to say about wages, but I can limit the problem is we get the other side hasn't said anything about the wages either.

[01:13:31] Speaker 01:
If it's something that's not in your briefs.

[01:13:33] Speaker 01:
I guess you could say it, but then you'd have to explain why it's not in your briefs.

[01:13:40] Speaker 05:
Well, here's one thing that isn't in our briefs.

[01:13:46] Speaker 05:
For the wages, we cite the district hospital case on page 50.

[01:13:52] Speaker 05:
You have to use accurate data.

[01:13:57] Speaker 05:
And we think that the core problem with the wage calculations here, both as to the

[01:14:01] Speaker 05:
wage figure and as to the 48-hour figure is the accuracy of the underlying data.

[01:14:10] Speaker 05:
We're citing the district hospital case and that case, that cites the city of New Orleans case, which is 969F2, 1163.

[01:14:18] Speaker 01:
That's one we can figure out by writing the case ourselves.

[01:14:21] Speaker 05:
Okay, great.

[01:14:22] Speaker 01:
All right, that's our further questions from the deck.

[01:14:25] Speaker 01:
Thank you very much.

[01:14:27] Speaker 01:
We'll take the matter under submission.

[01:14:28] Speaker 01:
We appreciate the argument.

[01:14:30] Speaker 01:
We'll take a brief recess.