Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT August 29, 2023 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk HOUSTON DIVISION KIEWIT OFFSHORE SERVICES, § § Plaintiff, § § Vv. § CIVIL ACTION NO. 4:22-cv-03716 § U.S. DEPARTMENT OF LABOR, ef al., § § Defendants. § § § § § § ORDER Pending before the Court is Plaintiff Kiewit Offshore Services, Ltd.’s (“Plaintiff or “Kiewit”) Motion for Summary Judgment (Doc. No. 40-2). Defendants United States Department of Labor (““DOL” or “Labor Department”); Martin J. Walsh (“Walsh”), Secretary of the U.S. Department of Labor; the Employment and Training Administration (“ETA”); and Brent Parton (“Parton”), Principal Deputy Assistant Secretary of Employment Training Administration (collectively, ““Defendants”) filed a combined Cross Motion for Summary Judgment and Response in opposition to Plaintiff's Motion for Summary Judgment (Doc. No. 42-1), Plaintiff filed a combined Response and Reply (Doc. No. 44), and Defendants also filed a Reply (Doc. No. 45). Having considered the Motions and the applicable law, the Court hereby DENIES Plaintiff's Motion for Summary Judgment and GRANTS Defendants’ Cross Motion for Summary Judgment.

In its denials, Defendants obviously reached a conclusion contrary to the one Plaintiff would have preferred. Rendering a decision that Plaintiff disagrees with, however, is not a sound basis for finding that Defendants failed to adhere the plain text and purpose of the relevant regulations. It is also not a sound basis for finding that Defendants’ analysis and decision making was arbitrary and capricious. It is clear from the record that Defendants adhered to the plain text and purpose of the H-2B program and applied the relevant regulations correctly against Plaintiff's. Defendants found, again and again, that Plaintiff's evidence failed to show that its need was truly temporary. Accordingly, the Court does not find that Defendants misconstrued the plain text or purpose of the relevant regulations or that it applied an improper standard in its denials. B. Whether Defendants Improperly Used a “Congressionally-Barred” Standard Plaintiff further argues that Defendants improperly denied its applications by applying 20 C.F.R. § 655.6(b)’s nine month bright line limitation in its denials, which is “congressionally- barred.” (Doc. No. 40-2 at 18). Plaintiff contends that Defendants denied Plaintiff's applications because they improperly applied § 655.6(b)’s nine month bright line limitation that limited temporariness for a peakload need period to nine months. To support this contention, Plaintiff maintains that Defendants cited to 20 C.F.R. § 655.6(b) nine times throughout its Final Determinations and BALCA opinion. (/d.). 20 C.F.R. § 655.6(b) states: The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. Except where the employer's need is based on a one-time occurrence, the CO will deny a request for an H-2B Registration or an Application for Temporary Employment Certification where the employer has a need lasting more than 9 months.

20 C.F.R. § 655.6(b) (emphases in original).

The Court finds that Plaintiff has misconstrued Defendants’ position. First, it should be pointed out that Plaintiff's stated peakload need was for a nine month period. Nowhere in either the Final Determinations or the BALCA opinion is a nine month, bright line limitation applied as Plaintiff argues. Plaintiff is unable to cite to any instance of this limitation being applied. In fact, in Plaintiff's Motion for Preliminary Injunction, it specifically argued that § 655.6(b) was “impliedly applied” because it could not identify an instance in the record where Defendants had actually relied upon § 655.6(b) or a nine month bright line limitation as the basis for its denials. Plaintiff runs into the same issue here. Plaintiff itself attested under penalty of perjury that its period of need was nine months. (Doc. No. 10 at 20). Defendants, after an examination of the totality of the evidence, determined that Plaintiff failed to meet its burden to show a short term, temporary need because Plaintiff itself stated that its need was nine months, but then failed to show that its need was actually limited to those nine months. Plaintiff's application was not denied because Plaintiff's need was beyond nine months or that its stated period of need was nine months—but rather because Plaintiff failed to establish that its need was limited to and would not last beyond the nine months it attested it would be experiencing a peakload need. (/d.). Thus, this Court does not find that Defendants improperly applied § 655.6(b)’s bright line limitation or that Defendants committed an abuse of discretion as Plaintiff contends. C. Whether Defendants Improperly Used a “But-For” Test Plaintiff also argues that Defendants improperly used an ultra vires “but-for” test when determining that Plaintiff did not demonstrate a temporary need. Specifically, Plaintiff relies on a sentence from the BALCA opinion that states: “[a]lthough the war in Ukraine is causing a higher demand of LNG, Employer has not shown that but for the war, it would not have a need for supplemental workers.” (Doc. No. 30-40 at 210) (emphasis added). Relying upon this singular sentence, Plaintiff maintains that Defendants applied an improper but-for standard and required it to show that the Russia-Ukraine war was the but-for cause of their temporary need. The Court does not find that Defendants applied the incorrect standard of review or that it applied a but-for standard. A review of the Final Determinations and BALCA opinion demonstrates that Defendants denied Plaintiff's applications based on consideration of evidence based on standards set out in 20 C.F.R. §§ 655.6(a) and 8 C.F.R. § 214(h)(6)(ii)(B). For example, the ALJ noted in the BALCA opinion that Plaintiffs evidence illustrated a continuous need, rather than a temporary one, which did not satisfy the temporariness requirement outlined in 20 C.F.R § 655.6(a). The ALJ also noted that Plaintiff satisfied the first element of the peakload need test since it cited to extensive payroll records showing it regularly employed permanent structural fitters, structural welders, pipe fitters, and pipe welders. The ALJ ultimately found that Plaintiff had failed to correct the defects identified by the CO for each position in each Final Determination and that it failed to establish that the job opportunities were temporary, that it had a peakload need, and that its needs were temporary under the second prong of 8 C.F.R. § 214.2(h)(60Gi)(B). Thus, the Court finds that Plaintiff not only misconstrues this sentence, but also, as this Court held in its Order denying Plaintiff's Motion for Preliminary Injunction, “Plaintiff mistakenly has focused on the forest while forsaking the need to focus on the trees.” (Doc. No. 41 at 9). Further, as the Court noted in its earlier Order, the phrasing of the sentence in question is somewhat less than desired—and that the sentence, if viewed in isolation, had the potential to suggest that Defendants applied an improper but-for standard in its analysis. Nevertheless, context matters. Viewing the record as a whole, the sentence was clearly not dispositive nor critical to Defendants’ analysis. Plaintiff itself explained that the war in Ukraine was a significant reason for the company’s peakload need. The BALCA opinion acknowledged that Plaintiff submitted evidence regarding the war in Ukraine, and then concluded that the evidence as a whole was insufficient to support that Plaintiff had a temporary need rather than a continuous one. It did not isolate the Ukraine war as the basis for its denials or as the sole reason for why Plaintiff failed to show a temporary need. The remainder of the BALCA opinion demonstrates that Defendants came to its ultimate conclusion because it weighed the entirety of Plaintiff's evidence against the standards set by the relevant regulations and did not use a but-for standard. The BALCA opinion emphasizes the CO’s findings that Plaintiff failed, based on the totality of the evidence, to establish that its needs were temporary. Accordingly, the Court finds that Defendants did not apply an improper but-for standard and properly adhered to the relevant regulations in its analysis. V. Whether Defendants Considered the Totality of the Evidence The second way Plaintiff alleges Defendants acted in an arbitrary and capricious manner in violation of the APA is that Defendants failed to analyze an important aspect of the problem, offered an explanation contrary to the evidence before it, and offered an explanation so implausible it cannot be ascribed to a difference in view or a product of agency expertise. Specifically, Plaintiff argues that Defendants failed to consider the totality of the evidence, ignored “straight-forward” evidence, and mischaracterized the evidence it did consider. (Doc. No. 40-2 at 19). Plaintiff also contends that Defendants improperly considered non-record evidence when it denied its structural welder application. (/d. at 22). A. Whether Defendants Failed to Consider “Straight-Forward” Evidence Plaintiff argues that Defendants failed to analyze an important aspect of the problem and failed to consider the totality of the evidence because it ignored “straight-forward” evidence. (Id. at 19).

The petitioning employer has the burden to provide sufficient evidence and an explanation of its business operations and need to demonstrate eligibility for the immigration benefit it seeks. 8 U.S.C. § 1361. When analyzing whether Defendants improperly misinterpreted or disregarded evidence arbitrarily and capriciously in violation of the APA, this Court may only consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” See City of Shoreacres v. Waterworth, 332 F.Supp.2d 992, 1004 (S.D. Tex. 2004), aff'd, 420 F.3d 440 (5th Cir. 2005). This Court is not permitted to reweigh the evidence. Id. To show a peakload need, Plaintiff was required to show (1) a permanent workforce at the location; (2) a need to supplement this workforce due to a short-term demand; and (3) that the H- 2B workers would not become a part of this permanent workforce. 8 C.F.R. § 214(h)(6)(ii)(B)(3). Plaintiff first contends that it met the first prong of the peakload need test when it submitted “copious payroll documentation” that established it regularly employees permanent workers in the requested positions. (/d. at 19). Second, Plaintiff claims that it submitted extensive evidence about the nature and operations of its business to explain why it needed to supplement its permanent staff due to short term demand. (/d. at 20-21). This included information about the Projects, news articles documenting growing demand for LNG in the United States, charts in support of the temporary nature of its request for all four positions, and explanations of all of its evidence. (/d.). Third, Plaintiff argues it submitted lists of its former H-2B workers and information about its employee programs and company initiatives to show that none of the requested workers would become a part of its permanent workforce. (/d. at 21). Plaintiff argues that it “explained itself at length” in both its applications and supplemental evidence and Defendants “used this against them” by claiming that the supplemental evidence “read like an employer manual.” Plaintiff maintains that despite meeting each element of the peakload need test and presenting a significant amount of evidence as to each element, Defendants arbitrarily and capriciously denied its applications by failing to consider the entirety of its evidence and misinterpreting the evidence it did consider. Thus, according to Plaintiff, Defendants’ denials were decided in clear error because it failed to consider “straight-forward” evidence. (/d. at 19, 22). In response, Defendants do not contest that Plaintiff satisfied the first element of the peakload need test when it submitted payroll records to establish that it regularly employs permanent workers in the requested positions. (Jd. at 21-22). Defendants do contest, however, Plaintiff's arguments that it did not engage in a consideration of the totality of Plaintiffs submitted evidence. Defendants maintain that it considered all of Plaintiff's evidence. Defendants cite to portions of the BALCA opinion that discussed the CO’s consideration of the charts, contracts, and representations made by Plaintiff in the record. (Jd. at 22; see also Doc. No. 30-40 at 209-12). It also notes the portions of the opinion that acknowledged and considered Plaintiff's submission of its business history and activities, payroll summary, articles, statements of facts, and other supplemental evidence. (Doc. No. 40-2 at 22-23; Doc. No. 30-40 at 209-12). Even after consideration of all of this evidence, however, Defendants found that Plaintiff had failed to provide sufficient evidence and explanations required to meet its burden for a temporary need. (Doc. No. 40-2 at 23; Doc. No. 30-40 at 209-12). Defendants explained in detail in the BALCA opinion why Plaintiffs evidence fell short of establishing that its need was temporary. (Doc. No. 30-40 at 209- 212). Coming to a conclusion Plaintiff did not desire, Defendants argue, is not evidence that they failed to consider all of Plaintiff's evidence. Defendants also contest Plaintiff's characterization that they misinterpreted Plaintiffs supplemental evidence. (Doc. No. 40-2 at 22). According to Defendants, the CO requested additional background information from Plaintiff about its business to garner clarity as to its requested dates of need for its requested positions. (/d.). In response, Plaintiff provided documentation through a background summary document with information about its employee programs, company initiatives, and new and existing projects. This documentation was intended to establish that its requested workers would not become a permanent part of its workforce. (Doc. No. 4-2 at 21). The CO found Plaintiff's documentation “appeared to read like an employer manual” and explained that the information only provided “an at-a-glance reference to Employer’s plans and procedures, but does not demonstrate a temporary need.” (Doc. No. 1-2 at 5). Defendants thus maintain that, absent further explanation from Plaintiff, their finding that the supplemental documentation Plaintiff provided demonstrated a “long-term, permanent need instead of a short- term need” was not made in clear error. Based on the administrative record, the Court does not find that Defendants misinterpreted evidence in its analysis. It is clear from the record that Defendants considered all of the evidence Plaintiff submitted when it concluded Plaintiff failed to meet its burden of proof that its peakload need was temporary. The ALJ extensively examined and discussed the CO’s consideration of Plaintiff's charts, articles on the current political climate, information about current projects, business history and activities, and payroll summaries, among other pieces of evidence, but still concluded that Plaintiff's “explanation and documentation of its temporary need did not overcome its deficiency.” (Doc. No. 1-2 at 15-17; see Doc. No. 30-40 at 209-12). Contrary to Plaintiff's arguments, submitting a voluminous record of evidence is not a guarantee of—nor does it necessitate—an approval of its applications. Moreover, Defendants coming to a conclusion that Plaintiff does not desire does not equate to misinterpreting or ignoring evidence. Despite the volume of evidence Plaintiff submitted, Defendants considered the record in its entirety and still found the evidence insufficient to demonstrate that Plaintiff possessed a temporary peakload need. Furthermore, the Court does not find Defendants’ description that Plaintiff's supplemental evidence “reads like an employer manual” and thus failed to demonstrate a temporary need to be a clear error of judgment. As an initial matter, it is Plaintiff's burden, as the petitioning employer, to provide sufficient evidence, an explanation of its business operations, and how this evidence and explanation relate to its temporary need. In the CO’s Notices of Deficiency, a disclaimer reads, “Note: If the submitted document(s) and its relationship to the employer’s need is not clear to a lay person, then the employer must submit an explanation of exactly how the document(s) support its requested dates of need.” (See Doc. No. 30-7 at 49). Here, although Plaintiff responded to the CO’s request for additional information by providing a background summary document with information about its employee programs, company initiatives, and new and existing projects, it failed to adequately explain why the evidence was relevant. As noted in Plaintiffs own briefs, Defendants pointed out that “it is unreasonable to place that burden on the CO, who lacks technical expertise in Plaintiff's specific business operations.” (Doc. No. 40-2 at 21). This Court agrees. Plaintiff provided supplemental documentation that it believed demonstrated its temporary need but did not provide a thorough explanation of the evidence it submitted. Defendants considered Plaintiffs evidence and found, absent further explanation, that the evidence did not demonstrate a temporary need. Defendants simply came to a conclusion that Plaintiff did not prefer, at least in part, because of Plaintiffs own lack of a cogent explanation. This does not constitute clear error. Plaintiff has, in effect, asked this Court to reweigh the evidence submitted to Defendants in its applications. The Court declines to do so and finds that Defendants’ decision was based on a holistic consideration of the entirety of the evidence Plaintiff submitted. It also finds that Defendants did not ignore evidence or misinterpret evidence that was before it. Accordingly, the Court does not find that Defendants committed a clear error in its denials or that it improperly misinterpreted, ignored, or disregarded Plaintiff's evidence. B. Whether Defendants Improperly Considered Non-Record Evidence Plaintiff also contends that Defendants improperly considered non-record evidence in its denial of its structural welder application. (Doc. No. 40-2 at 22). According to Plaintiff, Defendants stated that Plaintiff had used inconsistent dates to identify when its peakload period would begin in its structural welder application. (/d.). Plaintiff claims it provided an explanation for the change in dates, which Defendants “impermissibly ignored.” (Jd. at 23). Plaintiffs further allege that Defendants then compared the discrepancy in dates to “previous requests” that were “irrelevant to the instant peakload inquiry, as they were submitted well before” the addition of Projects 2 and 3. In response, Defendants maintain that they are permitted to consider prior applications in this case submitted by the same employer when determining whether the application demonstrates a temporary need. (Doc. No. 42-1 at 23) (citing Wilco Guttering Co, Inc., 2018-TLN-00004, at 7 (Oct. 30, 2017), relying, in part, on previous applications to determine temporary need). When Defendants identified that Plaintiff's requested dates were inconsistent in its structural welder application, Defendants inquired about the change in need from Plaintiffs prior application to inform its determination on Plaintiff's request. (/d. at 24). In response, Plaintiff stated: DOL has requested evidence for why the dates of need have changed from [Employer]’s prior certification. Importantly, we note under the H-2B definitions, there is nothing to indicate that more than one instance of peakload need is prohibited so long as all of the regulatory standards are met for each request. That being said, [Employer] has experienced a material and unexpected change in circumstances since the prior application was certified. (Doc. No. 30-40 at 200-201).

Defendants maintain that Plaintiff's above response to its inquiry was conclusory and did not address or resolve its concerns about establishing peakload need. (Doc. No. 42-1 at 24). Furthermore, when denying Plaintiff’s structural welder application, the CO noted that Plaintiff stated that its need for these positions would begin on October 2022, which did not align with the project start date, which was November 2022. (Doc. No. 30-21 at 124). Plaintiff referred to “ramp up” activities as the explanation for this discrepancy and did not include further details. (Doc. No. 30-40 at 205). Without more, Defendants concluded that Plaintiff failed to provide an adequate explanation for the discrepancy between its period of need and project start dates. Since Plaintiff failed to rectify the issue Defendants identified when it was given an opportunity to do so, Defendants argue that it did not “impermissibly disregard” Plaintiff's explanation as Plaintiff claims it did. (Doc. No. 42-1 at 24). The Court does not find that Defendants improperly evaluated evidence concerning structural welders. Defendants identified a discrepancy between Plaintiffs period of need for structural welders and the project start dates. (Doc. No. 30-40 at 17). Plaintiff requested 125 structural welders beginning in October 2022. (/d.). Plaintiff, however, had previously represented that the alleged reason for needing additional welders was because of Projects 2 and 3, which were set to begin in November 2022, not October. (/d.). Despite being informed of this discrepancy in its Notice of Deficiency for structural welders, Plaintiff did not directly address or resolve this discrepancy in its response. Instead, Plaintiff stated that the regulations did not require it to explain a discrepancy since nothing in the regulations prevents an employer from having multiple peakload needs as long as they meet the regulatory standards. (Doc. No. 30-21 at 124). Plaintiff further stated that its reason for the discrepancy was that it “ha[d] experienced a material and unexpected change in circumstances since the prior application was certified.” (Doc. Nos. 1-2 at 6; 30-21 at 124). In effect, Plaintiff essentially added a month to its purported duration of need without explanation. The ALJ concluded that since Plaintiffs dates of need for structural welders did not align with the alleged reason for the peakload need, it was reasonable for the CO to inquire about the change in need and Plaintiff's inconsistent statements. (Doc. No. 1-2 at 17). Moreover, in the absence of an adequate explanation for the discrepancy, the ALJ concluded that Plaintiff failed to establish a peakload need for structural welders and that Plaintiffs need was not temporary. (/d.). Thus, the Court does also not find that Defendants committed a clear error in its consideration of the evidence concerning structural welders and Plaintiff's discrepancy in projected dates of need. In light of the discrepancy, the CO requested an explanation for the change. Plaintiff’s explanation of the change did not explain or resolve the discrepancy at all. In the absence of an explanation, the Court thus finds that it was reasonable for the ALJ to conclude that Plaintiff failed to establish a peakload need for structural welders because its dates of need do not align with the start dates of Projects 2 and 3 (the alleged reason for the peakload need). Thus, Defendants did not commit a clear error in denying Plaintiff's structural welder applications. VI. Whether Defendants’ Actions Were Arbitrary & Capricious Finally, Plaintiff appears to argue that Defendants’ overall analysis and consideration of its applications was arbitrary and capricious in violation of the APA. (See Doc. No. 40-2). As previously noted, an agency’s action is held to be arbitrary and capricious in violation of the APA when it (1) relies on factors Congress did not intend for it to consider, (2) fails to analyze an important aspect of the problem or offers an explanation contrary to the evidence before it, or (3) offers an explanation so implausible it cannot be ascribed to a difference in view or a product of agency expertise. Luminant Generation Co. LLC v. U.S. E.P.A., 714 F.3d 841, 850 (5th Cir. 2013). If an agency’s reasoning and policy choices conform to minimal standards of rationality, then its actions are reasonable and must be upheld. Tex. Oil & Gas Ass’nv. U.S. E.P.A., 161 F.3d 923, 933 (Sth Cir. 1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29. 34, S. Ct. 2856, 77 L.Ed.2d 443 (1983)). The reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. This Court finds that Defendants, in denying Plaintiffs applications, did not act arbitrarily and capriciously in violation of the APA. Based on the administrative record, Defendants acted reasonably and rationally in its review of Plaintiff's evidence and applied the relevant regulatory standards set out in § 214.2(h)(6)(ii)(B) and 20 C.F.R. § 655.6(a). Moreover, Defendants did not commit clear errors when considering Plaintiff's evidence or fail to analyze important aspects of the problem in coming to its ultimate conclusion to deny Plaintiff's applications. The conclusions reached were rationally reasoned and did not deviate significantly from what a reasonable person would conclude after reviewing the data. Furthermore, Defendants did not render explanations so implausible it could not be ascribed to a difference in view or a product of agency expertise. Although reasonable minds could arguably differ on the conclusions Defendants rendered, Plaintiff's disagreement with Defendants’ assessment of the evidence and its ultimate denial of its applications does not mean that Defendants’ decisions or consideration process was arbitrary and capricious. Thus, the Court denies Plaintiffs Motion for Summary Judgment and grants Defendants’ Cross Motion for Summary Judgment.

VII. Conclusion For the foregoing reasons, the Court DENIES Plaintiff's Motion for Summary Judgment (Doc. No. 40-2) and GRANTS Defendants’ Cross Motion for Summary Judgment (Doc. No. 42- 1). The case is hereby dismissed with prejudice.

Signed at Houston, Texas, this day of August, 2023.

Andrew S. Hanen United States District Judge