                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 HISPANIC AFFAIRS PROJECT, et al.,

                        Plaintiffs,
                                                            Civil Action No. 15-cv-01562 (BAH)
                        v.
                                                            Judge Beryl A. Howell
 THOMAS E. PEREZ, in his official capacity
 as Secretary of U.S. Department of Labor, et
 al.,

                        Defendants.

                                  MEMORANDUM OPINION

       The Court is confronted with a request for a preliminary injunction to halt a government

visa program for temporary agricultural workers based on an administrative rule that has already

been held invalid after extensive litigation, including an appeal, and is due for replacement in

less than one month. The challenged rule is, consequently, operating on borrowed time. Yet,

despite belatedly raising their particular objection to the challenged rule several years after the

original litigation was begun and over one year after a remedial order was put in place, the

plaintiffs nevertheless claim irreparable harm from its continued operation and, further, that

imposition of an injunction, which would effectively result in an abrupt modification of the

remedial order, would serve both equitable and the public interests.

       Specifically, on October 7, 2011, a group of Americans, who were formerly open-range

agricultural workers, brought an action against the United States Secretary of Labor and United

States Department of Labor (“DOL”), challenging the validity of two Training and Employment

Guidance Letters (“TEGLs”) issued in 2011 for failing to comply with the notice-and-comment

                                                      1
requirements of the Administrative Procedural Act (“APA”), 5 U.S.C. § 553. 1 Mendoza v. Solis,

924 F. Supp. 2d 307, 310 (D.D.C. 2013). These TEGLs provide special procedures for hiring

foreign temporary workers on general agricultural H-2A visas to work as cattle, goat and sheep

herders on the open range on terms intended to avoid adversely affecting the wages and working

conditions of U.S. workers similarly employed. Almost three years later, the D.C. Circuit

reversed this Court’s finding that the plaintiffs lacked standing and, on the merits, held that the

2011 TEGLs were subject to the APA’s notice-and-comment requirements and, thus, were

procedurally invalid. Mendoza v. Perez, 754 F.3d 1002, 1024 (D.C. Cir. 2014). On remand, this

Court entered a remedial order, directing the government to promulgate a new rule according to

notice-and comment procedures and, with the consent of all parties, required vacatur of the

invalid 2011 TEGLS upon the effective date of the new rule. Mendoza v. Perez, 72 F. Supp. 3d

168, 175 (D.D.C. 2014) (“Remedial Order”).

        Nearly a year after entry of the Remedial Order, and less than three months shy of the

effective date of the new rule, on August 18, 2015, the plaintiffs—an American former

sheepherder, a foreign sheepherder currently employed on a temporary H-2A visa and a

nonprofit membership organization for Hispanic immigrant workers, Compl. ¶¶ 3–5, ECF No.

2—filed this lawsuit against the defendants United States Secretary of Labor, the Department of

Labor, and the Assistant Secretary of Employment and Training Administration, Department of

1
          The two 2011 TEGLs are: TEGL No. 15-06, Change 1, Special Procedures: Labor Certification Process for
Occupations Involved in the Open Range Production of Livestock under the H-2A Program (“2011 Cattleherder
TEGL”), 76 Fed. Reg. 47,243 (Aug. 4, 2011), which provided special regulations governing certification of the
temporary employment of nonimmigrant cattleherders; and TEGL No. 32-10, Special Procedures: Labor
Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations Under the H-2A
Program (“2011 Sheepherder TEGL”), 76 Fed. Reg. 47,256 (Aug. 4, 2011), which provided special regulations for
the certification of the temporary employment of nonimmigrant goatherders and sheepherders.

                                                          2
Labor (collectively, “defendants”), id. ¶¶ 6, 8, challenging DOL’s application of one component

of the soon-to-be-superseded 2011 Sheepherder TEGL. 2

        The challenged component of the 2011 Sheepherder TEGL outlines the methodology to

be used by DOL in determining the minimum offered wage rate required for DOL’s certification

of employer applications for H-2A visas for foreign sheep and goatherders. This methodology is

entirely changed in a new rule, which was published on October 16, 2015, and becomes effective

on November 16, 2015. See Temporary Agricultural Employment of H-2A Foreign Workers in

the Herding or Production of Livestock on the Range in the United States (“2015 Rule”), 80 Fed.

Reg. 62,958 (Oct. 16, 2015) (to be codified at 20 CFR pt 655). Under this new rule, the new

monthly prevailing wage rate will be phased in over two years and will be determined by using

the base federal minimum wage of $7.25 per hour, multiplied by 48 hours per week, multiplied

by 4.333 weeks in a month, multiplied by 80% for the first year, resulting in a new monthly

wage of $1206.31 as of the effective date. 2015 Rule, 80 Fed. Reg. at 63,014 n.62.

        The 2015 Rule, when it becomes effective, will replace and vacate both of the invalid

2011 TEGLs. Remedial Order, 72 F. Supp. 3d at 175. Now pending before the Court is the

plaintiffs’ Motion for Preliminary Injunction (“Pls.’ Mem.”), ECF No. 1, to enjoin DOL from

certifying any new H-2A applications at the current, challenged wage rate. Although DOL has

conceded the deficiencies in the methodology provided in the 2011 Sheepherder TEGL and

acknowledged that these procedures have resulted in stagnant wages for herders on the open

range, see 2015 Rule, 80 Fed. Reg. 62,986, the plaintiffs have not carried their burden of

2
        Concurrent with the initiation of this lawsuit, the plaintiffs filed an Ex Parte Motion for a Temporary
Restraining Order, Pls.’ Mem. at 2, which the District Court for the District of Colorado denied without explanation
on August 19, 2015. Order Denying Ex Parte Motion for a Temporary Restraining Order and Scheduling Briefing
on Motion for Preliminary Injunction, ECF No. 7.

                                                             3
demonstrating that the extraordinary remedy of a preliminary injunction is warranted.

Consequently, the plaintiffs’ request for preliminary injunctive relief is denied.

I.     BACKGROUND

       Background relating to the operation of the H-2A visa program and the reasons for

invalidation of the 2011 TEGLs are fully described by the D.C. Circuit in Mendoza, 754 F.3d at

1007–1010, and, consequently, only briefly summarized here.

       A.      The H-2A Statutory Regime

       The Immigration and Nationality Act (“INA”) authorizes the grant of temporary work

visas to any nonimmigrant alien “having a residence in a foreign country which he has no

intention of abandoning who is coming temporarily to the United States to perform agricultural

labor or services.” 8 U.S.C. § 1101(a)(15)(H)(ii)(a). In order to hire such foreign workers,

American employers must first obtain certification from the Secretary of Labor, who may certify,

or approve, the temporary work visas, called H-2A visas, when, inter alia, (1) “there are not

sufficient workers who are able, willing and qualified, and who will be available at the time and

place needed, to perform the labor or services involved in the petition,” and (2) “the employment

of the alien in such labor or services will not adversely affect the wages and working conditions

of workers in the United States similarly employed.” Id. § 1188(a)(1).

       In order to ensure that the employment of H-2A workers does not “adversely affect the

wages and working conditions” of domestic workers, DOL has adopted regulations setting

minimum wages and working conditions provided to domestic and foreign workers. Mendoza,

754 F.3d at 1008. In particular, DOL requires H-2A employers to pay their hourly workers the

highest of what is known as an adverse effect wage rate (“AEWR”), “the prevailing wage or

piece rate, the agreed-upon collective bargaining wage, or the Federal or State minimum wage.”

                                                      4
20 C.F.R. § 655.122(l). The AEWR, calculated using the Department of Agriculture’s Farm

Labor Survey (“FLS”), is intended to “approximate[] what the prevailing wage would be if not

for the hiring of foreign workers.” Mendoza, 754 F.3d at 1008 (citing Temporary Agricultural

Employment of H-2A Aliens in the United States, 75 Fed Reg. 6884, 6891–93 (Feb. 12, 2010)).

       DOL does not apply the AEWR to open-range herders, such as cattleherders,

sheepherders and goatherders, however, because of the “unique occupational characteristics of

herding—including spending extended periods in isolated areas and being on call twenty-four

hours a day, seven days a week to protect livestock.” Mendoza, 754 F.3d at 1008–9 (internal

citations omitted). Instead, the 2011 TEGLs provide special variances from the default AEWR

and impose different methods of calculating the prevailing wage for each state, which is the

minimum the employers are required to pay foreign H-2A open-range herders. Id. at 1008.

       B.      The Mendoza Litigation and Remedial Order

       In October 2011, Americans who were formerly open-range herders filed a lawsuit in this

Court against the Secretary of Labor and the Department of Labor, challenging the validity of the

2011 TEGLs for lack of notice-and-comment procedures required under the APA. Mendoza,

924 F. Supp. 2d at 314. The plaintiffs succeeded in their challenge, and, in June 2014, the D.C.

Circuit remanded the case to “craft a remedy to the APA violation,” taking into consideration

“various factors including whether vacating the TEGLs would have a disruptive effect on the

herding industry and how quickly the Department of Labor might be able to promulgate,

pursuant to the procedural requirements of the APA, new H-2A regulations for herding

operations.” Mendoza, 754 F.3d at 1025.

       Following ample briefing and consideration of multiple factors, including those expressly

cited by the D.C. Circuit, in October 2014, this Court, with the consent of all parties and to

                                                     5
minimize disruptive effects on the industry, retained in effect the invalidated TEGLs until the

effective date of the new rule, which was set “to be no later than 30 days after the rule’s

publication or December 1, 2015, whichever is earlier.” Remedial Order, 72 F. Supp. 3d at 175.

In accordance with the time schedule set out by this Court, in April 2015, DOL published notice

for comment of a proposed rule to replace the 2011 TEGLs. See Notice of Proposed Rule on

Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of

Livestock on the Open Range in the United States (“NPRM”) (Apr. 15, 2015), 80 Fed. Reg.

20,300. Towards Justice, counsel to the plaintiffs in this case, along with fifty-three other groups

and three individuals, commented on the NPRM, noting that the proposed rule “is a welcome

change that begins to address the wage stagnation in the industry.” Comments of Farmworker

Justice, et al. at 1, Docket No. ETA-2015-0004-0460 (June 1, 2015).

       C.      The Instant Case

       On August 18, 2015, four months after the publication of the NPRM, and less than three

months before publication of the final new rule, the plaintiffs filed the instant action in the

United States District Court for the District of Colorado. Compl. ¶ 37. The plaintiffs—Hispanic

Affairs Project, an organization with members who are both former and current H-2A

sheepherders, Pls.’ Mem. Ex. J (“HAP Director Decl.”) ¶¶ 4, 13, ECF No. 1-10; Rodolfo Llacua,

a former sheepherder and U.S. citizen who avers that he cannot pursue his preferred profession

of sheepherding because of the low wages set by DOL, Pls.’ Mem. Ex. K (“Llacua Decl.”) ¶ 12,

ECF No. 1-11; and John Doe, a current H-2A sheepherder who avers that he is hardly making

enough, at the challenged wage rate, to support himself and his family, Pls.’ Mem. Ex. L (“Doe

Decl.”) ¶ 5, ECF No. 1-12—claim that the defendants did not follow the 2011 Sheepherder

                                                      6
TEGL when determining the prevailing wage rates at which it certifies H-2A sheepherder

applications, and that they have been harmed by the illegally low wages. See Pls.’ Mem. at 1–2.

         After the United States Court for the District of Colorado denied the plaintiffs’ ex parte

motion for a temporary restraining order and set a briefing schedule for the plaintiffs’ motion for

a preliminary injunction, the parties filed, on September 21, 2015, a Joint Motion to Transfer

Case to this Court, ECF No. 15. The case was subsequently transferred to this Court, see Order,

dated September 25, 2015, ECF No. 19, where both parties provided notice that this case is

related to the Mendoza litigation, see Pls.’ Notice of Related Case, dated September 29, 2015,

ECF No. 23; Defs.’ Notice of Related Case, dated September 30, 2015, ECF No. 24, prompting

reassignment of the case to the undersigned Judge, see Order, dated October 5, 2015, ECF No.

5. 3

         The plaintiffs seek preliminary injunctive relief “enjoin[ing] DOL from certifying any

additional H-2A Applications for Temporary Employment Certifications (“H-2A Applications”)

for H-2A sheepherders at the illegal wage floor.” 4 Pls.’ Mem. at 2. For the reasons outlined

below, the Court denies the plaintiffs’ motion.             5

II.      LEGAL STANDARD

         A preliminary injunction is “an extraordinary and drastic remedy,” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (quoting 11 AC. Wright, A. Miller, & M. Kane, FEDERAL

3
          Upon reassignment, a hearing was promptly scheduled on the plaintiffs’ pending Motion for Preliminary
Injunction. See Minute Order, dated October 6, 2015.
4
          As part of their initial requested relief, the plaintiffs also sought an order directing “DOL to issue notice . . .
to all current H-2A sheepherder employers, making them aware that the DOL will soon issue a new sheepherder
wage floor rule and that employers will be liable for at least any difference between the amount paid to current H-
2A sheepherders and the new minimum as of the date of the issuance of the notice.” Pls.’ Mem. at 2. During the
hearing on the motion for a preliminary injunction, in response to a question from the Court, the plaintiffs withdrew
their request for such a notice, choosing instead to “focus . . . on preventing any other certifications at that $750 a
month rate.” Rough Transcript of Hearing (October 15, 2015) (“Hrg. Tr.”) at 40:2–8.
5
          Also pending but not yet ripe is the plaintiffs’ Motion for Class Certification. See Pls.’ Motion to Certify
Class Under FRCP 23(b)(2), ECF No. 27.

                                                                  7
P RACTICE AND P ROCEDURE § 2948 (2d ed. 1995)), requiring the plaintiffs to show clearly (1) that

they are “likely to succeed on the merits,” (2) that they are “likely to suffer irreparable harm in

the absence of preliminary relief,” (3) “that the balance of equities tips in [their] favor,” and (4)

“that an injunction is in the public interest,” Glossip v. Gross, 135 S. Ct. 2726, 2736–37 (2015)

(quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)); see also

Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d

388, 392 (D.C. Cir. 2011)). “‘When seeking a preliminary injunction, the movant has the burden

to show that all four factors, taken together, weigh in favor of the injunction.’” Abdullah v.

Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp., 571

F.3d 1288, 1292 (D.C. Cir. 2009)). The Supreme Court in Winter, 555 U.S. at 22, made clear

that a court may not issue “a preliminary injunction based only on a possibility of irreparable

harm . . . [since] injunctive relief [i]s an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.”

III.    DISCUSSION

        The plaintiffs argue that the current prevailing wage rates at which DOL certifies H-2A

applications for visas for foreign sheepherders and goatherders are illegal because DOL did not

apply the methodology authorized under the 2011 Sheepherder TEGL. Pls.’ Mem. at 1. The

2011 Sheepherder TEGL directs DOL to annually determine the prevailing monthly wage for the

sheepherding and goatherding industry in each state based on annual surveys of domestic herders

conducted by each local State Workforce Agency (“SWA”). 2011 Sheepherder TEGL, 76 Fed.

Reg. at 47,258. “[W]here a SWA is unable to produce a wage rate finding . . . due to an

inadequate sample size or another valid reason,” DOL must either use “comparable survey data

from an adjoining or proximate SWA,” or “aggregat[e] survey data for sheepherding and/or

                                                        8
goatherding activities across States to create regional prevailing wage rates.” Id. According to

the plaintiffs, DOL has not complied with the 2011 Sheepherder TEGL by (1) failing to

determine the prevailing wage rates annually and, instead, last determining the wage rates in

2013; (2) failing to rely on statistically significant SWA surveys and, instead, using surveys with

“inadequate sample sizes” of six to nine workers; and (3) failing to utilize fresh SWA surveys

and, instead, applying “past survey data” from 2009 to make 2013 prevailing wage

determinations. Pls.’ Mem. at 5–8.

           The defendants do not dispute that DOL issued its last prevailing wage rates in 2013, and

that, in making those determinations, it relied on SWA surveys with small sample sizes and

sometimes on past SWA survey data. Defs.’ Opp’n at 13–14, ECF No. 14; NPRM, 80 Fed. Reg.

at 20,307–08. DOL even admits that “for many years, the Department has been unable to

determine a statistically valid prevailing wage rate each year in each State in which one is

needed” and that wages “effectively have not increased since 1994” in states without higher

mandatory minimum wages. Id. at 20,307; see also Hrg. Tr. at 28:19–25 (government counsel

stating that the 2011 Sheepherder TEGL “didn’t work” and that the “wage[s] stagnated” as a

result).

           The plaintiffs have persuasively pointed out the deficiencies in the wage rates

implemented under the authority of the 2011 Sheepherder TEGL. 6 Yet, even if the likelihood of

6
          In connection with this prong of the preliminary injunctive relief standard requiring a showing of likelihood
of success on the merits, the defendants contend that the motion should be denied for lack of standing, since the
plaintiffs’ injuries are not redressable. Defs.’ Opp’n at 8. According to the defendants, “no new wage under any
methodology Plaintiffs propose can be effectively calculated,” id. at 9, and all of the plaintiffs’ suggested options
“would cause a significant disruption to the program or a program hiatus,” id. at 8. The plaintiffs’ final requested
relief, however, only “[r]equire[s] the DOL to promptly issue a wage determination that accords with the regulatory
framework of the 2011 [Sheepherder TEGL],” without dictating the specific methods by which the defendants may
arrive at that wage determination. Compl. ¶ 61(c). The aforementioned options are merely the plaintiffs’
suggestions. See Pls.’ Mem. at 18 (describing the three methods as “potential options”). The defendants would be
free to craft a permitted methodology to make new wage determination should the Court “declar[e] the current wage
floor rule employed by the DOL unlawful and in violation of the . . . APA, 5 U.S.C. § 706(1)-(2).” Compl. ¶ 61(b).

                                                               9
success on the merits factor is “the first and most important factor,” Aamer, 753 F.3d at 1038,

where “especially good reasons for preserving the status quo by denying the petitioners’ request”

exist, the injunctive relief should be denied, id. at 1043. Indeed, the plaintiffs bear the burden to

establish “that all four factors, taken together, weigh in favor of the injunction.” Abdullah, 753

F.3d at 197; see also Morgan Drexen, Inc. v. Consumer Fin. Prot. Bureau, 785 F.3d 684, 694

(D.C. Cir. 2015) (“Failing to satisfy any factor is grounds for denying [injunctive] relief.”);

Asher v. Laird, 475 F.2d 360, 362 (D.C. Cir. 1973) (per curiam) (affirming denial of preliminary

injunction since “[e]ven had appellants demonstrated such a likelihood [of success], there has

been no showing on the other three elements of the [injunction] test”).

         The defendants argue that the injunctive relief sought should be denied because the

plaintiffs have failed to show irreparable harm or that “the balance of harms/public interest”

favor imposition of the injunctive relief requested. Defs.’ Supp. Resp. to Questioning at Oral

Argument at 2, ECF No. 32. As discussed in more detail below, the plaintiffs have failed to

demonstrate that (1) they are likely to suffer irreparable harm absent the requested injunctive

relief; (2) a remedy in equity is warranted upon consideration of the balance of hardships to the

plaintiffs and other interested parties; and (3) the requested relief is in the public interest. These

considerations are addressed seriatim below.

                  A.       Irreparable Harm

The practical concerns identified by the defendants in actually crafting a new wage rate under the 2011 Sheepherder
TEGL, should the current rate be found invalid, may not be sufficient to deny standing but are certainly relevant to
other prerequisites for injunctive relief, including the balance of harms and the public interest, as discussed infra.
Similarly, the defendants also argue that plaintiff Llacua, specifically, lacks standing because “his alleged injury of
being unable to secure a herding job at a desirable wage” cannot be redressed by an injunction enjoining the H-2A
visa program. Whether the requested injunctive relief can redress plaintiff Llacua’s injuries, however, dovetails
with consideration of the showing of irreparable harm, as discussed in more detail infra. See Mott Thoroughbred
Stables, Inc. v. Rodriguez, 87 F. Supp. 3d 237, 247 (D.D.C. 2015) (analyzing under the irreparable harm factor
whether requested injunctive relief would necessarily redress plaintiff’s alleged harm).

                                                              10
        The D.C. Circuit “has set a high standard for irreparable injury” to warrant preliminary

injunctions. Mexichem Specialty Resins, Inc. v. E.P.A., 787 F.3d 544, 555 (D.C. Cir. 2015)

(quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).

In order to be considered “irreparable,” the injury “must be ‘both certain and great,’ ‘actual and

not theoretical,’ ‘beyond remediation,’ and ‘of such imminence that there is a clear and present

need for equitable relief to prevent irreparable harm.’” Id. (quoting Chaplaincy of Full Gospel

Churches, 454 F.3d at 297) (emphasis in original). Where the injuries alleged are purely

economic, as in the instant case, the injuries are irreparable only if “no ‘adequate compensatory

or other corrective relief will be available at a later date, in the ordinary course of litigation.” Id.

(quoting Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

        At the outset, the Court agrees with the defendants that the timing of the plaintiffs’

lawsuit undermines their argument that they are suffering irreparable harm. Hrg. Tr. at 24:13–

25:4. The D.C. Circuit has found that a delay of even forty-four days before bringing action for

injunctive relief was “inexcusable,” and “bolstered the conclusion that an injunction should not

issue,” particularly where the party seeking an injunction had knowledge of the pending nature

of the alleged irreparable harm. See Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir.

1975); see also Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005) (“An unexcused delay

in seeking extraordinary injunctive relief may be grounds for denial because such delay implies a

lack of urgency and irreparable harm.”).

        Here, the plaintiffs have had ample notice that the challenged wage rates issued under the

2011 Sheepherder TEGL were problematic but failed to bring a lawsuit until just a few months

before that rule will be vacated. The validity of the 2011 TEGLs has been subject to scrutiny

virtually since its promulgation, when the Mendoza lawsuit was filed in October 2011.

                                                       11
Mendoza, 924 F. Supp. 2d at 314. In June 2014, the D.C. Circuit held that the 2011 TEGLs were

invalidly promulgated requiring remand, Mendoza, 754 F.3d at 233, for issuance, in October

2014, of a remedial order, during consideration of which all parties agreed that the 2011 TEGLs

should be retained until the effective date of the replacement rule. Remedial Order, 72 F. Supp.

3d at 175. The NPRM published, in April 2015, expressly addressed the deficiency in the

application of the 2011 Sheepherder TEGL because the prevailing wage rate relied on state-wide

surveys that “lack[ed] . . . reportable data,” a factor that “likely contributed to the stagnation of

wages over the last 20 years,” and “[a]s a result, the Department cannot continue to rely on these

surveys under current conditions and fulfill its statutory mandate to prevent adverse effect to

workers’ wages and working conditions.” NPRM, 80 Fed. Reg. at 20,309. The NPRM

prompted over five hundred comments from interested parties, including a comment jointly

submitted by the plaintiffs’ attorneys, Towards Justice, and other workers’ advocate groups.

2015 Rule, 80 Fed. Reg. at 62,958, 62,961, n.5. The ongoing litigation over the validity of 2011

Sheepherder TEGL, and this Court’s Remedial Order retaining the 2011 Sheepherder TEGL as a

stopgap measure until replaced, cannot be ignored in evaluating the plaintiffs’ current claim of

irreparable harm from the methods DOL uses to determine prevailing wage rates in the affected

industry.

        The plaintiffs’ belated initiation of this lawsuit challenging the determination of the

prevailing wages belies the plaintiffs’ contentions of urgency and immediacy now. The director

of the plaintiff Hispanic Affairs Project avers that he was “informed that the low wages currently

paid to H-2A sheepherders are illegal” only a week before he filed suit on August 18, 2015.

HAP Director Decl. ¶ 9. Each of the two individual plaintiffs aver that they were only “recently

informed that the way that the government was calculating the minimum wages for herders was

                                                      12
illegal.” Llacua Decl. ¶ 14; Doe Decl. ¶ 15. The amount of litigation and administrative activity

regarding the 2011 TEGLs, not to mention the public attention garnered by these activities,

significantly undermines these excuses, especially where over fifty workers’ rights groups

submitted comments in response to the NPRM, including the plaintiffs’ own attorneys.

         Even if any delay in filing the instant lawsuit were discounted in evaluating the plaintiffs’

claim of irreparable harm, the Court is not persuaded that the requested relief of halting issuance

of new H-2A visas at the current wage rate would actually do anything to address the harms

identified by the plaintiffs.

         For example, plaintiff Llacua, a former sheepherder, alleges that, absent the requested

injunctive relief, he would suffer the irreparable harm of delaying his “return to a preferred job

that offers a rationally calculated wage.” Pls.’ Mem. at 15. Yet, enjoining the issuance of new

H-2A visas at the current wage rate would not guarantee this plaintiff any herding job offer, let

alone a herding job offer at a sufficiently high wage to be acceptable or an acceptable offer in the

short time frame before the new rule with a higher wage rate goes into effect on November 16,

2015. Consequently, whether viewed through the prism of redressability or irreparable harm, the

injunctive relief requested would not necessarily help this plaintiff. Moreover, the Court is

cognizant that plaintiff Llacua is in the same position as the former sheepherder plaintiffs in

Mendoza, and the Mendoza plaintiffs agreed to delaying the vacatur of the invalid 2011 TEGL

until the effective date of the new rule, in recognition of potential disruption to the industry, even

though they were ostensibly facing the same harm from delay as plaintiff Llacua here. 7

7
          In fact, the plaintiffs seek to certify as a class “all current H-2A sheepherders and all persons who would be
working as sheepherders in the United States but for the United States Department of Labor’s illegal implementation
of its 2011 [Sheepherder TEGL],” Compl. ¶ 39, indicating that Llacua’s harms are the same as those faced by all
other former sheepherders “who would be working as sheepherders” but for the current wage rate, including the
Mendoza plaintiffs.

                                                               13
Remedial Order, 72 F. Supp. 3d at 174. These factors militate against a finding of irreparable

harm as to plaintiff Llacua.

       Likewise, plaintiff Doe, a current H-2A sheepherder, as well as any similarly situated

members of plaintiff HAP, also fail to demonstrate that they are likely to suffer irreparable harm

absent the requested injunctive relief. Plaintiff Doe posits that he will suffer irreparable harm

because he will “continue to receive illegally low wages and likely will be unable to obtain

backpay according to a yet-to-be determined, rationally calculated wage floor.” Pls.’ Mem. at

15. Since the plaintiff’s harm is purely economic, in order to show irreparable harm, he must

demonstrate that his monetary loss would be irremediable at a later date. Mexichem Specialty

Resins, Inc., 787 F.3d at 555 (quoting Wisconsin Gas Co., 758 F.2d at 674). To satisfy this

standard, the plaintiffs reason that, absent a preliminary injunction, which includes a finding that

application of the 2011 Sheepherder TEGL is illegal as to the current prevailing wage rate

determination, plaintiff Doe would be unable to make a successful claim for backpay because

employers would be able to “claim reasonable reliance” on this invalidated TEGL and that they

are “merely complying with what the DOL authorizes.” Pls.’ Reply Supp. Mot. Prelim.

Injunction (“Pls.’ Reply”) at 18, ECF No. 22 (citing Frederick County Fruit Growers Ass’n v.

Martin, 968 F.2d 1265, 1274 (D.C. Cir. 1992) and Morrison v. Dep’t of Labor, 713 F. Supp. 664,

671 (S.D.N.Y. 1989)). In other words, the injunctive relief requested is intended merely to lay

the strategic groundwork for a subsequent claim for backpay by providing an argument to defeat

the employers’ anticipated defense of reasonable reliance on the soon-to-be-superseded 2011

Sheepherder TEGL. See Pls.’ Reply at 17 (“Plaintiffs’ principal theory of remedies is against H-

2A shepherd employers[.]”).

                                                     14
        The Court is not persuaded that the issuance of the requested injunction would, in fact,

have any effect, let alone bolster, the claim of plaintiff Doe, or similarly situated current herders,

for backpay in some later suit against different parties not present here. See Hrg. Tr. at 20:20–22

(plaintiffs’ counsel conceding that how the backpay analysis would apply is unclear but that “the

main point here is we can have that battle later”). Since the real goal of the plaintiffs is to obtain

backpay for some period of time prior to the increase in wages required under the new 2015

Rule, the requested preliminary injunctive relief, standing alone, would be insufficient to redress

their alleged irreparable harm; rather, as the plaintiffs concede, they must file a separate lawsuit

against the employers to assert any claims for backpay.

       Additionally, neither of the cases relied upon by the plaintiffs support their contention

that enjoining DOL from certifying any new H-2A applications at the current wage rate would

entitle the plaintiffs to “backpay from employers at a correct rate of pay.” Pls.’ Reply at 17. The

first case, Frederick County, involved workers’ challenges to a DOL interpretation of a 1978

regulation and then a subsequent successor rule concerning wages for foreign fruit workers under

the H-2A program when both the challenged interpretation and successor rule effectively

depressed wages. Frederick County, 968 F.2d at 1266. The challenged interpretation was

judicially determined to be improper before the 1982 harvest, and was nonetheless codified in a

new rule promulgated in 1983. Id. at 1267. Within approximately one week of promulgation,

the new 1983 rule was preliminarily enjoined by this Court, until the D.C. Circuit vacated the

injunction “prior to the 1984 harvest.” Id. The D.C. Circuit ultimately concluded, in 1985, that

the 1983 rule was invalid on the merits, thereby “in effect reinstat[ing] the 1978 regulation”

requiring a higher wage rate. Id. As a consequence of these various judicial and agency actions,

the higher wage rate required by the 1978 regulation was in effect for both the 1983 and 1985

                                                      15
harvests—due, respectively, to the district court’s finding that DOL’s interpretation was invalid

when the growers completed their employment plans for the 1983 harvest, id. at 1273, and the

D.C. Circuit’s subsequent finding that the 1983 rule was invalid before the growers submitted

their job clearance orders for the 1985 harvest, leaving in effect the 1978 regulation, id. at

1267—while the depressed wage permitted by the 1983 rule was in effect for the 1984 harvest,

due to the D.C. Circuit’s vacatur of the preliminary injunction. Despite the 1978 regulation

being in effect for the 1983 and 1985 harvests, the growers nonetheless paid only the depressed

wage rate, in violation of the district court’s court order that the higher wage rate required by the

1978 regulation governed during the 1983 harvest and the D.C. Circuit’s ruling regarding the

invalidity of the 1983 rule during the 1985 harvest. Id. In 1989, “the district court granted the

workers’ claim for the backpay for the 1983 harvest . . . and . . . the workers’ claim for the 1985

harvest,” but not for the 1984 harvest, which backpay remedy was subsequently affirmed. Id. at

1268.   8

            The plaintiffs interpret the D.C. Circuit’s affirmance of the District Court’s backpay

remedy for the 1983 harvest in Frederick County as demonstrating that “the existence of the

injunction,” which rejected the validity of the challenged 1983 rule, “proved determinative in the

D.C. Circuit’s decision that equity favored the workers, and the employers had to pay the higher

rate” required in a new rule. Pls.’ Reply at 18. Based on this interpretation of the D.C. Circuit’s

8
         After the D.C. Circuit dissolved the injunction and remanded the matter for the district court “to determine
the propriety of DOL’s rulemaking procedure under the APA,” the district court approved the 1983 rule. Frederick
Cty Fruit Growers Ass’n v. McLaughlin, 703 F. Supp. 1021, 1024 (D.D.C. 1989). While this ruling was on appeal,
the 1983 rule’s depressed rate applied to the “growers’ 1984 job clearance orders,” despite the fact that the D.C.
Circuit ultimately found this rule to be invalid and, “[a]s a result,” workers were paid a depressed wage for the 1984
harvest “under an invalid rule.” Id. Despite recognizing that the workers were paid a depressed wage under an
invalid rule, the district court did not grant the workers’ claim for backpay for the 1984 harvest. Id. at 1029. The
workers, however, did not “cross-appeal the district court’s denial of their backpay claim for the 1984 harvest,” and
the question of whether the workers may have been entitled to the higher wage rate under the 1978 regulation for the
1984 harvest under a quasi-contract analysis was not before the D.C. Circuit. Frederick County, 968 F.2d at 1268.

                                                              16
ruling, the “Plaintiffs seek to avail themselves of a similar equitable remedy against H-2A

shepherd employers, but like the farmworkers in Frederick County, they need a finding from this

Court that, contrary to the DOL’s position, the current shepherd wage-floor rule is an ‘invalid

administrative edict.’” Id. In short, the plaintiffs’ interpretation of the D.C. Circuit’s ruling in

Frederick County is the “principal” reason for the injunctive relief sought here, id. at 17, but that

reasoning is flawed for at least three reasons.

        First, the injunctive relief granted in Frederick County directly addressed the irreparable

injury of a lower wage rate claimed by the workers: the injunction barred enforcement of the new

1983 rule that effectively depressed workers’ wage rates, so that the wage rate at issue

automatically reverted to the higher rate set by the 1978 regulation. By contrast, here, the

plaintiffs do not seek to enjoin the enforcement of the current wage rate as applied to all foreign

H-2A sheepherders; instead, they seek only to “enjoin the DOL from certifying any additional

H-2A applications . . . for H-2A sheepherders at the illegal wage floor.” Pls.’ Mem. at 2

(emphasis added). Consequently, even if granted, the requested relief would have no impact on

the wage rate of foreign sheepherders currently working on H-2A visas, unless and until DOL

decides to make a new prevailing wage determination, which, notably, the requested relief does

not require. Pls.’ Mem. at 18 (acknowledging that “immediately halting reliance on the [current]

wage floor will not grind the DOL’s certification of H-2A Applications to a halt but will instead

encourage the DOL to use one of a variety of alternative (and more rational) methodologies to

calculate a wage floor.”).

        Second, the injunctive relief granted in Frederick County had a significantly different

effect than the relief sought in this case. In that case, the injunction had the effect of triggering

application of the higher wage rate under the 1978 regulation to the 1983 harvest, leaving no

                                                      17
vacuum requiring immediate rule-making as to the applicable rate for foreign workers in the H-

2A visa program. By contrast, as the plaintiffs acknowledge, imposition of the requested

injunctive relief here is intended only to prompt DOL to find an alternative methodology to

determine the prevailing wage rate, and would require further rule-making and leave confusion

as to the applicable rate in its wake. Pl.’s Mem. at 18; Pl.’s Reply at 24–25. This is precisely the

confusion that the Remedial Order in the Mendoza litigation was intended to avoid. Remedial

Order, 72 F. Supp. 3d at 175.

       Finally, by single-mindedly focusing on the preliminary injunctive relief granted in

Frederick County as the silver bullet that defeated the growers’ reasonable reliance argument

under an “equitable restitution” analysis, the plaintiffs miss another important aspect of the D.C.

Circuit’s reasoning. Frederick County, 968 F.2d at 1273–74. The D.C. Circuit made clear that

the “equitable restitution” analysis was applied only because none of the parties challenged this

framework. Id. at 1272 (“Because neither the workers nor the growers challenge the district

court's analogy to a rate case, we analyze the parties' arguments within that rubric.”). In the

Circuit’s view, a “more apt[]” approach to the remedial question would be to treat it as a

“problem of quasi-contract: The wage term in the 1983 contract between the growers and the

workers was unenforceable; therefore, the court must supply a reasonable wage term; in the

context of this case the reasonable wage is the minimum wage established by the Secretary; and

the growers should be ordered to pay that amount (less what they paid the workers voluntarily).”

Id. In other words, if the regulation is invalid, the wage amount based on the regulation is also

invalid and unenforceable, and the workers would be owed the reasonable wage that that should

have been paid. Under the Circuit’s preferable methodology, the issuance of an injunction may

be beside the point, since a critical issue for a backpay award is the ultimate validity of the

                                                     18
regulation. This undercuts the purported strategic reason the plaintiffs are seeking injunctive

relief here. The parties in Frederick County, however, simply never made a quasi-contract

argument. Id. (“The workers do not make this argument, however, and so we do not consider

it.”).

         In any event, in considering the workers’ entitlement to backpay for the 1983 harvest

under an equitable restitution analysis, the Circuit considered and rejected multiple arguments of

the growers, including finding that invalidation of a regulation on procedural, rather than

substantive grounds, could nonetheless provide the basis for restitution since “[t]o do otherwise .

. . would be to give legal effect to . . . [an] invalid order.” Frederick County, 968 F. 2d at 1273

(internal citation and quotations omitted). More relevant here, the growers’ argument that they

reasonably relied upon the 1983 rule in setting the wages for the 1983 harvest was also rejected,

but the injunctive relief barring the 1983 rule’s enforcement was only part of the reason. The

Court considered other factors as well, such as when the growers made plans for the harvest and

filed their job clearance orders, the timing of promulgation and adoption of a new rule, and the

timing of the injunctive relief, in evaluating whether the growers reasonably relied on the

depressed rate provided in the invalid 1983 rule. Id. at 1273–74. Even before the injunction had

been issued, the Court found “at the least a significant possibility” that the 1983 harvest would

be governed by another wage rate due to litigation over the validity of the regulation relied upon

and that, by the time the injunction was issued, the employers knew the regulation “was, if not

flatly invalid, of at least dubious validity” and could not reasonably rely upon it. Id. at 1274. In

other words, D.C. Circuit’s reason for upholding the backpay award for the 1983 harvest was not

solely due to the injunction.

                                                     19
        Likewise, the second case relied upon by the plaintiff, Morrison v. United States, also

involved the wage rate for foreign fruit workers and did not turn on whether a preliminary

injunction was entered. While acknowledging “the fact that no injunction was granted is

influential,” the court expressly opined that it “does not agree with the counsel for the growers

that there needs to be ‘an injunction in the air [in order] to reach the concept of equitable

restitution.’” 713 F. Supp. at 671 (quoting hearing transcript) (alteration in original). Instead, the

“weightiest factor for the Court’s consideration is whether the growers relied on the approval by

the DOL and whether such reliance was reasonable.” Id. at 673. The Morrison court focused on

“the timing of both the [DOL] approval and the institution of the lawsuit,” which put the growers

on notice of the challenge to the wage rate, rather than the issuance of any preliminary

injunction. The court reasoned that the growers reasonably relied upon DOL’s approval of job

clearance orders they submitted “premised on the Farmer Memorandum . . . after what appeared

to the growers to be a reasonable internal evaluation and analysis by the DOL” up until the filing

of the plaintiffs’ suit, three months later. Id. The court reasoned that the growers reasonably

relied upon DOL’s approvals, even after the complaint was filed, because “at that point, on the

eve of the harvest, their plans were irrevocably made” and “the approved wage rate played a

central part in their economic planning for the harvest season.” Id. Therefore, the key issue in

Morrison was not whether a preliminary injunction was issued, but whether the growers had any

“alternative but to go forward with the hiring of the H-2[A] workers at the rate approved in their

job orders” after they were put on notice, by the complaint, that the regulation may be found

invalid later. Id. at 374.

        In sum, close review of the cases relied upon by the plaintiffs reveals significant

questions about whether grant of the preliminary injunctive relief requested would, without

                                                      20
more, remedy the harm of lost backpay wages, which plaintiff Doe and similarly situated

sheepherders may claim at some future date in some other litigation against parties not before the

Court.

         B.     Balance of Equities

         The third factor for injunctive relief requires a showing that the balance of hardships

warrants an equitable remedy. In making this assessment, the court may consider whether the

requested injunctive relief would “substantially injure other interested parties.” Ark. Dairy Co-

op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 821 (D.C. Cir. 2009) (framing the balance of

harms factor as an inquiry into whether “an injunction would substantially injure other interested

parties”); see also Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (same). As discussed

above, the requested injunctive relief would do little to redress the plaintiffs’ alleged harms, and

no irreparable harm is likely to inure to the plaintiffs in the absence of immediate injunctive

relief. On the other hand, the preliminary injunction will bring the H-2A program to a halt,

harming American employers “who rely on H-2A workers and the communities that rely on

those industries, and participants in the larger market for goods and services derived from sheep

and goats,” as well as foreign workers who seek work through the H-2A program. Defs.’ Opp’n

at 17.

         The plaintiffs dismiss these harms as “speculative” and capable of “immediate[]

ameliorat[ion].” Pl.’s Reply at 24–25. As the plaintiffs’ own evidence demonstrates, however,

these harms to American employers and foreign workers who depend on the operation of the H-

2A program are real. New and currently pending H-2A applications awaiting certification are

being filed by employers. See Pls.’ Notice Regarding Exhibit M to Motion for a Temporary

Restraining Order And/Or Preliminary Injunction at 2, ECF No. 13. Enjoining further

                                                      21
certifications at the current wage rate, as requested by the plaintiffs, would effectively result in a

moratorium on the H-2A program, leaving in limbo the lives and businesses of those affected,

albeit for the short period before the 2015 Rule goes into effect.

         The plaintiffs argue, even if the injunctive relief does pose harms to third-parties, the

disruptive effect can be “immediately ameliorated” by DOL’s issuance of a “temporary

emergency regulation.” Pl.’s Reply at 25 (citing Northern Mariana Islands v. U.S., 686 F. Supp.

2d 7, 19–20 (D.D.C. 2009) for proposition that an agency may “promulgate a narrowly focused

and temporary emergency regulation” to address any disruption to a regulatory scheme).

Contrary to the plaintiffs’ suggestion that DOL can issue an emergency rule virtually overnight,

Hrg. Tr. at 18:14–20 (“I think if you were to issue a ruling today . . . the Department of Labor . . .

could issue an emergency rule tomorrow[.]”), DOL is required to take administrative steps that

may, in fact, delay the effective date of any new rule. For example, to bypass notice-and-

comment procedures, an agency must find “good cause” to do so and “incorporate the finding

and a brief statement of reasons therefor in the rules issued.” 5 U.S.C. § 553(b)(B); see also

Sorenson Communications Inc. v. F.C.C., 755 F.3d 702, 706–07 (D.C. Cir. 2014) (noting that an

agency invoking “good cause” must present “something more than an unsupported assertion”).

In fact, the defendants inform the Court that any invocation of good cause needs to first go

“through the bureaucratic process, the office of information, [and] regulatory affairs,” potentially

delaying the effective date of any emergency rule. Hrg. Tr. 22:7–18. 9

9
          The defendants also indicate, without explanation, that to issue an emergency rule, DOL would first need to
retract the already published new rule, pushing back the effective date of the new rule past the current deadline of
November 16, 2015. Hrg. Tr. 22:9–18.

                                                             22
       In light of the minimal benefits of the requested injunctive relief to the plaintiffs and the

likelihood of substantial harms to interested third-parties, the Court finds that the balance of the

equities weighs against issuing the plaintiffs’ requested injunction.

       3. The Public Interest

       Likewise, the requested injunction would also not be in the public interest. The Court has

already found, after considering “whether vacating the TEGLs would have a disruptive effect on

the herding industry,” Mendoza, 754 F.3d at 1025, that the public interest is best served by

retaining the 2011 TEGLs until the effective date of the 2105 Rule, which is fully informed by

notice and public comment. Remedial Order, 72 F. Supp. 3d at 174–75. As noted, this portion

of the Remedial Order was entered with the consent of all parties. Id. Issuance of a preliminary

injunction that imposes a moratorium on the certification of any new H-2A application would

effectively, abruptly and belatedly, undo this portion of the Remedial Order, which has been in

effect for over a year. Accordingly, the Court finds that the public interest does not support a

preliminary injunction.

IV.    CONCLUSION

       For the foregoing reasons, the plaintiffs’ Motion for a Preliminary Injunction is denied.

       An appropriate Order accompanies this Memorandum Opinion.

       Date: October 31, 2015
                                                                         Digitally signed by Hon. Beryl A. Howell
                                                                         DN: cn=Hon. Beryl A. Howell, o=U.S.
                                                                         District Court for the District of Columbia,
                                                                         ou=United States District Court Judge,
                                                                         email=Howell_Chambers@dcd.uscourts.g
                                                                         ov, c=US
                                                       __________________________
                                                                         Date: 2015.10.31 12:56:37 -04'00'

                                                       BERYL A. HOWELL
                                                       United States District Judge

                                                     23


141 Ind. App. 684 (1967)
231 N.E.2d 827
UTTERBACK
v.
UTTERBACK.
No. 20,728.
Court of Appeals of Indiana.
Filed December 19, 1967.
Julius H. Sachs and Robert M. Hess, of Hammond, for appellant.
Philip M. Cagen, and William W. Anderson, Jr., of Valpariso, for appellee.
No Petition For Rehearing Filed.
*685 COOK, P.J.
This is an action for an absolute divorce brought by the appellee, Larry Utterback, against the appellant, Elizabeth Utterback.
The trial court's judgment granted appellee an absolute divorce, and awarded appellant custody of the minor child of the parties, gave the appellee reasonable rights of visitation, and ordered the appellee to pay $15.00 per week child support.
The sole issue before this court is whether the appellee was, under the evidence adduced, entitled to an absolute decree of divorce.
The parties were married on March 7, 1966, and had dated for at least five years prior to that date. The appellant was six months pregnant at the time of the marriage.
The appellee's complaint was based upon "cruel and inhuman treatment." We can find no evidence in the record which supports a finding that the appellant was guilty of such conduct.
The appellee admits that this was a "marriage of convenience," and that he had no intention of entering into a lasting relationship with the appellant.
The parties separated on the morning of March 8, 1966. The extent of their cohabitation in marriage was approximately twelve hours. During this short period of time the parties had what the appellee described as a "little argument" about the future religious affiliation of their unborn child. This was a continuation of a disagreement which began before the marriage. Both parties were unyielding on this subject. Under no circumstances could this "little argument" be considered "cruel and inhuman treatment."
"Cruel and inhuman treatment is a relative term and depends upon the circumstances of each particular case." Heckman v. Heckman (1956), 235 Ind. 472, 134 N.E.2d 695.
In this case, the record is devoid of any evidence of cruel *686 and inhuman treatment by the appellant toward the appellee, and the divorce should not have been granted for that cause.
The appellee also urges that since this was a marriage of convenience, entered into, on his part, solely for the purpose of legitimizing the unborn child, the courts should allow the marriage to be dissolved without the requirement that the evidence meet one of the causes of Burns' Ind. Stat. § 3-1201.
At the conclusion of the evidence, the trial court said:
"I don't know whether the law provides for a marriage of convenience, or for a legal ground for divorce when it was entered into without the thought of making a marriage out of it."
The answer to the above expression of uncertainty is that there is no such provision. To allow a divorce on such grounds would require us to completely disregard the divorce laws enacted by our General Assembly, and the decisions of this court.
Section 3-1201 provides that, "Divorces may be decreed upon the application of the injured party for the following causes and no other:". Of the eight causes enumerated, nowhere do we find any which would allow a marriage to be dissolved because it was entered into when one party did not intend that it become a lasting relationship. If such a cause is to be added, it is a matter for the General Assembly to enact, and not for the courts to decide.
Finding that the appellee did not discharge the burden of proof required by law, the judgment is reversed.
Judgment reversed.
Bierly, Pfaff and Smith, JJ., concur.
NOTE.  Reported in 231 N.E.2d 827.


2015 VT 87

State v. Eldert (2014-141)

2015 VT 87

[Filed 19-Jun-2015]

NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.

2015 VT 87

No. 2014-141

State of Vermont

Supreme Court

On Appeal from

     v.

Superior Court, Rutland Unit,

Criminal Division

Stephen L. Eldert

January Term, 2015

Theresa
  S. DiMauro, J.

John R. Treadwell, Assistant Attorney General, Montpelier,
and Kevin R. Klamm, Rutland
  County Deputy State’s Attorney, Rutland, for
Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Kerry B. DeWolfe,
Appellate Defender, Montpelier,
  for Defendant-Appellant.

PRESENT:    Reiber, C.J., Dooley, Skoglund,
Robinson and Eaton, JJ.

¶ 1.
EATON, J.   Defendant Stephen L. Eldert appeals the
revocation of his probation resulting from a violation of a probation condition
that he not purchase, possess, or consume alcohol.  We conclude that the
court erred in admitting unreliable hearsay evidence at the revocation hearing,
and therefore reverse.
¶ 2.
In October 2004, defendant pled guilty to lewd and lascivious conduct,
13 V.S.A. § 2601, unlawful restraint in the second degree, id.
§ 2406(a), and multiple violations of conditions of release, id.
§ 7559(e).  The court sentenced defendant to two to ten years, all
suspended, and placed defendant on several conditions of probation, including
condition 1 that he “must not buy, have or drink any alcoholic beverages.”
¶ 3.
At some point thereafter, defendant’s probation supervision was
transferred to Delaware through the Interstate Compact Offender Tracking System
(ICOTS).[1]
 While in Delaware, defendant was convicted of several crimes and placed
on probation in addition to his ICOTS-supervised Vermont probation.
 Subsequently, a Delaware court found defendant in violation of his
Delaware probation conditions, revoked his probation, and imposed the
underlying suspended sentence.  On April 26, 2013, while defendant was
still serving his Delaware sentence, the Delaware Department of Corrections
informed defendant’s Vermont probation officer that it was no longer willing to
supervise his Vermont probation upon release from his Delaware sentence.
¶ 4.
In May 2013, defendant’s Vermont probation officer filed a violation of
probation complaint in the superior court, criminal division.  Relying on
documentation received from Delaware through ICOTS indicating that “Mr. Eldert
admitted to using alcohol, Percocet, and cocaine,” the complaint alleged that
defendant violated condition 1.  The complaint requested a warrant to return
defendant to Vermont once he served his prison sentence in Delaware.  A
warrant was issued in September 2013, and defendant was brought back to
Vermont.  Defendant denied the allegations that he had violated condition
1 while in Delaware by consuming alcohol, and was incarcerated in Vermont
pending a merits hearing.
¶ 5.
At the State’s request, approximately one hour prior to the scheduled
start of the merits hearing, counsel for both parties met on the record with
the court to discuss the State’s planned use of hearsay evidence that is the
subject of this appeal.  The State informed the court that its sole
evidence in support of the alleged violation was defendant’s Vermont probation
officer “testifying as to information on what occurred in Delaware by virtue of
documentation and direct communication with the [probation officers] there.”
 The State requested a “weather report” from the court as to whether the
proposed hearsay evidence was reliable and admissible, stating it was
“conceivable that the court might want direct testimony from a Delawarean,”
adding “I don’t think it’s necessary, but the court’s preferences are my first
wish.”  Defendant objected to a continuance for the State to procure live
testimony, explaining that the defense was ready to proceed as scheduled.
 The court declined to rule on the matter prior to the start of the
hearing, stating “well, we’ll . . . see what happens.”
¶ 6.
During the merits hearing, defendant’s Vermont probation officer, the
sole witness for the State, testified that she received various documents
through ICOTS indicating that defendant had violated condition 1 of his Vermont
probation while in Delaware.  In support of its violation-of-probation
complaint, the State sought to admit these documents through defendant’s
probation officer’s testimony as State’s exhibits 1, 2, and 3.
¶ 7.
State’s exhibit 1, dated November 2, 2012, is captioned “Violation
Report.”  The report was purportedly authored by defendant’s Delaware
probation officer, and then reviewed and approved by a Delaware Department of
Corrections supervisor.  The report alleges violations of two of
defendant’s Delaware probation conditions, the first prohibiting possession or
consumption of a controlled substance or other dangerous drugs unless
prescribed lawfully, and the second requiring compliance with “any special
conditions imposed by your supervising officer, the Court and/or the Board of
Parole.”  The report indicates, in relevant part, that defendant made
three admissions: (1) “[o]n 10/19/12, Mr. Eldert admitted to using alcohol”;
(2) “[o]n 10/26/12 he was released from detox and admitted to drinking alcohol
(vodka) that night”; and (3) “[o]n 11/1/12, when confronted with the fact the
he smelled strongly of alcohol, Mr. Eldert admitted to drinking one pint of
vodka the night before.”  The report does not make clear to whom or under
what circumstances defendant made the admissions.  The State presented
exhibit 1 as a single report consisting of four pages.  The report is
facially incomplete, and confusingly, there are five pages included in the
report, only the last three of which are numbered.[2]  The fourth page of the report,
labeled “4 of 5” and dated April 26, 2013, appears to be an incomplete,
unsigned order from the Kent County Superior Court acknowledging the alleged
violation of probation, executing a warrant, and setting bail at $9,000.
 The report and the court order, dated seventeen months apart, were not
signed, notarized, certified, otherwise attested to, or showed any indication
that they had been filed in court.
¶ 8.
State’s exhibit 2 is an ICAOS form entitled “Offender Violation Report.”[3]  The form, addressed to “Vermont”
and dated April 26, 2013, stated a violation of probation hearing was held on
March 1, 2013 and that “[o]ffender was found in violation.”  The form
contains a field labeled “Current Specific Violations,” where writers are to
“[s]pecify [the] violation and provide all details to support the violation
below, including evidence, witnesses’ names, and witnesses’ contact
information,” which was left blank.  The form identifies Daniel Welsh as
defendant’s Delaware probation officer, but is unsigned, uncertified, contains
no indication it is an official document, and has no information connecting it
to defendant’s alleged admissions of drug and alcohol abuse.
¶ 9.
State’s exhibit 3 is entitled “Violation of Probation Sentence Order.”
 The supposed order is dated March 1, 2013, and simply states: “defendant
is found in violation.”  The report has no information concerning the
basis for the violation, and makes no mention of defendant’s alleged
consumption of alcohol.  There is nothing indicating the order is an
official court record, such as an official stamp or seal.  Although the
document identifies the presiding judge, it does not provide any information
about the nature of the violation.  The document is also unsigned,
uncertified, and contains nothing linking it to the violation report other than
defendant’s personal information and the case number.
¶ 10.
At the Vermont probation-revocation hearing, defendant’s Vermont
probation officer testified that during the course of her supervision she never
spoke to defendant or his former Delaware probation officer, Daniel Welsh,
whose name appears on the reports.  She testified that one week before the
hearing on the merits, she spoke with defendant’s current Delaware probation
officer over the phone who confirmed the information in the reports authored by
Mr. Welsh, but who did not have first-hand knowledge of defendant’s admissions.
¶ 11.
Defendant objected throughout the hearing to his probation officer’s
testimony and the admission of the documents as unreliable hearsay.
 Defendant consistently objected to the absence of any witnesses with
personal knowledge of his alleged confessions.  The only explanation
offered by the State was that, “[o]bviously, Delaware has no particular interest
in coming to Vermont.”  The court addressed defendant’s confrontation
objections by stating that any judges named in the ICOTS documents could not be
called as witnesses “to testify about what they did in any proceeding,” then
moved on to discuss the reliability of the proffered evidence.  The court
inquired as to whether officer Welsh was still with the Bureau of Community
Corrections in Delaware, to which the State responded, “I don’t know if Mr.
Welsh moved on to greener pastures . . . .  More
importantly, [defendant’s Vermont probation officer] had the documentation on
which she brought these charges.”  Over defendant’s objections, the trial
court admitted State’s exhibits 1, 2, and 3 into evidence and permitted his
Vermont probation officer to testify as to their contents.  Based on that
evidence, the court found defendant violated condition 1 and revoked his
probation.  This appeal followed.
¶ 12.
Defendant makes several arguments in support of his position that the
trial court erred in revoking his probation.  Specifically, he argues that
the court’s findings were not supported by the State’s evidence at the hearing,
and that the court failed to find “good cause” for dispensing with his right to
confront adverse witnesses in violation of the Fourteenth Amendment to the
United States Constitution and Vermont Rule of Criminal Procedure 32.1.
¶ 13.
In a probation-revocation proceeding, the State must show, by a
preponderance of the evidence, that a probationer violated an express or
clearly implied condition.  State v. Decoteau, 2007 VT
94, ¶ 8, 182 Vt. 433, 940 A.2d 661; see also State v.
Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996) (“The State
meets its burden by showing that there has been a violation of the express
conditions of probation, or of a condition so clearly implied that a
probationer, in fairness, can be said to have notice of it.” (citations,
quotation marks, and emphasis omitted)).  Whether a probation violation
occurred is a mixed question of fact and law.  Austin, 165 Vt.
at 398, 685 A.2d at 1082.  The trial court must first make findings
of fact related to the actions of the probationer, then make “an implicit legal
conclusion that certain acts constitute a violation of the probationary terms.”
 Id. (quotation omitted).  On appeal,
we will uphold the trial court’s findings of fact if they are fairly and
reasonably supported by credible evidence, and will only disturb legal
conclusions if they are not reasonably supported by those facts.  Decoteau,
2007 VT 94, ¶ 8.
¶ 14.
We review evidentiary rulings in both civil and criminal trials for
abuse of discretion.  See State v. Groce, 2014 VT 122,
¶ 13, ___ Vt.___, 111 A.3d 1273 (noting, in reviewing criminal
conviction, that “[w]e review the trial court’s evidentiary
rulings for abuse of discretion.”); Follo v. Florindo,
2009 VT 11, ¶ 19, 185 Vt. 390, 970 A.2d 1230 (explaining
that we review evidentiary rulings in civil trials for abuse of discretion).  As a probation-revocation hearing is a hybrid
criminal-civil proceeding, we review the admission of evidence in such hearings
for abuse of discretion.  See Decoteau, 2007 VT 94, ¶ 31
(Rieber, C.J., dissenting) (explaining that in a probation revocation
proceeding, “[t]he reliability of evidence is essentially a fact specific issue
within the trial court’s discretion, and therefore subject to reversal by this
Court only upon a showing of an abuse of discretion” (quotations omitted)); see
also United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009);
United States v. Williams, 443 F.3d 35, 46 (2d Cir. 2006).
¶ 15.
We first address defendant’s argument that the trial court violated his
Fourteenth Amendment right to confrontation in admitting the three sets of
ICOTS documents and allowing his Vermont probation officer to testify regarding
their contents at the revocation hearing.  Defendant argues that these
statements constitute unreliable hearsay and thus should have been excluded.
 Defendant contends that without the hearsay evidence, there is no support
for the court’s finding that he violated condition 1 of his probation.
 For the following reasons, we agree.
¶ 16.
“Hearsay is not categorically inadmissible in probation-revocation
hearings because the rules of evidence do not apply.”  Decoteau,
2007 VT 94, ¶ 12 (citing V.R.E. 1101(b)(3)).  Probationers are,
however, entitled to confront adverse witnesses under the Due Process Clause of
the Fourteenth Amendment.  Id. ¶ 12 (citing Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973)); see also V.R.Cr.P.
32.1(a)(2)(D).  Therefore, we have held that before a court may deny a
probationer the right of confrontation and admit hearsay evidence, it must make
an explicit finding on the record that there is “good cause” to do so.  Austin,
165 Vt. at 396, 685 A.2d at 1081.
¶ 17.
While this Court has not expressly “establish[ed] the limits of what
does or does not constitute sufficient good cause for admitting hearsay into
evidence,” we have consistently recognized that a key factor in making that
determination is the reliability of the hearsay evidence sought to be
admitted.  Id.; Decoteau, 2007 VT 94, ¶ 12.
In both Austin and Decoteau, we recognized that in addition to
the reliability of the hearsay evidence, many courts also consider the State’s
proffered reason for not presenting live-witness testimony in determining
whether there is “good cause” to deny confrontation.  Decoteau,
2007 VT 94, ¶ 12 n.1 (noting that some courts consider the
availability of the declarant, and whether the evidence is offered to prove the
central contested issue or is simply peripheral thereto); Austin,
165 Vt. at 395 (explaining that reliability is an essential factor but
recognizing that consideration of the State’s reason for not producing live-witness
testimony is also an important consideration (citing, inter alia, State v.
Yura, 825 P.2d 523, 530 (Kan. 1992) (requiring consideration of both
the government’s explanation of why confrontation is undesirable or impractical
and the reliability of the proffered hearsay evidence); State v.
Casiano, 667 A.2d 1233, 1239 (R.I. 1995) (same); Mason v.
State, 631 P.2d 1051, 1056 (Wyo. 1981) (same)).  In Austin,
however, we rejected the view of the federal district court in Finch v.
Vermont District Court that “reliability and good cause are separate prongs
that must independently be met before dispensing with a probationer’s
confrontation rights.”  Austin, 165 Vt. at 394, 685 A.2d
at 1080 (quotation marks omitted) (citing Finch v. Vt. Dist. Ct.,
No. 90-9, 1990 WL 312576, at *1 (D. Vt. Sept. 24, 1990) (unpub. mem.)).
 We noted that this view is “not shared by any of the federal circuits
that have considered the question,” and concluded that the reliability of the
proffered hearsay is a “critical factor” to consider when ruling on the
admissibility of hearsay in a probation revocation proceeding.  Id.
at 394-95, 685 A.2d at 1080.
¶ 18.
In Austin, we cited favorably to United States v. Bell,
in which the United States Court of Appeals for the Eighth Circuit recognized
that in order to find “good cause” in a probation-revocation proceeding, “the
trial court . . . must balance the probationer’s right to
confront a witness against the grounds asserted by the government for not
requiring confrontation.”  785 F.2d 640, 642 (8th Cir. 1986).
The Bell court noted that “[a]s is true of any balancing test, it is not
possible to articulate fixed rules on what the government must show to
establish ‘good cause’ in every case.”  Id.
at 642-43.  “However, there are several factors which should be evaluated
in examining the basis cited by the government for dispensing with
confrontation.”  Id. at 643.  Specifically, the court relied
upon two factors to determine whether there was “good cause.”  The first
is the government’s explanation for “why confrontation is undesirable or
impractical.”  Id.  “For example, the government might contend
that live testimony would pose a danger of physical harm to a government
informant,” or “that procuring live witnesses would be difficult or
expensive.”  Id.  The second factor is the reliability of the
evidence offered by the government in place of live testimony.  Id.
As the Bell Court summarized:
[W]here
the government demonstrates that the burden of producing live testimony would
be inordinate and offers in its place hearsay evidence that is
demonstrably reliable, it has made a strong showing of good cause.  Where,
on the other hand, the government neither shows that presenting live
testimony would be unreasonably burdensome nor offers hearsay evidence
that bears indicia of reliability, the probationer is entitled to
confrontation.

Id.
(emphases added).  We conclude that Bell sets forth the appropriate
test for determining whether the State has met its burden for establishing
“good cause” to deny a probationer the right to confront adverse witnesses.[4]  Therefore, in a usual case, a trial
court must, at a minimum, evaluate both the reason offered by the State for not
providing live testimony and the reliability of the hearsay evidence
offered in its stead.[5]
¶ 19.
Here, the State offered three exhibits into evidence: (1) a “Violation
Report”; (2) an “Offender Violation Report”; and (3) a “Violation of Probation
Sentence Order.”  Over defense counsel’s objections, the court admitted
the three documents received through ICOTS, and allowed defendant’s Vermont
probation officer to testify as to their contents.  In so doing the court
found that the State’s exhibits were “substantially reliable and can be
admitted without violating [defendant’s] confrontation rights.”  The court
explained that the documents were reliable by virtue of defendant’s Vermont
probation officer receiving them from Delaware through the ICOTS system.
The court also reasoned that defendant’s Delaware probation officer filed the
documents contained within the exhibits in a Delaware court, and that “as an
officer of the Court, he certainly had an obligation to be truthful in filing
those documents, and those documents form the basis of the [violation of
probation sentence order].”  Because the court found the sources of the
ICOTS documents were a Delaware probation officer and judge, the court
concluded they were “as reliable, if not more reliable, than the toxicology
report found reliable by the Supreme Court in Finch and more reliable
than the affidavit of a police officer found unreliable by the Supreme Court in
Austin.”  The court stated that Austin was not controlling,
as a probation officer does not have the same adversarial relationship with a
probationer as a police officer has with a criminal defendant.
¶ 20.
We agree with defendant that the factors considered by the trial court
do not provide sufficient evidence of reliability to justify denying defendant
his right to confrontation.  Although we have not adopted a formal test to
assess the reliability of hearsay evidence, we have held that hearsay may be
admissible in probation-revocation proceedings if it bears “traditional indicia
of reliability,” Austin, 165 Vt. at 396, 685 A.2d at 1081, and
have enumerated several “important considerations,” including: (1) whether
there is corroborative evidence; (2) whether the hearsay is an objective
fact, or a conclusory statement; (3) whether the hearsay is sufficiently
detailed; (4) whether the source of the hearsay has a personal or
adversarial relationship with the defendant, or other bias or motive to
fabricate; and (5) whether the hearsay is offered to prove the central
issue in the case, Decoteau, 2007 VT 94, ¶ 14.  See also Decoteau,
2007 VT 94, ¶ 31 (Rieber, C.J., dissenting) (citing State v.
James, 2002 ME 86, ¶ 15, 797 A.2d 732, 737; Bailey v.
State, 612 A.2d 288, 293 (Md. 1992)).
¶ 21.
On these factors, we conclude that none of the admitted evidence bears
any traditional indicia of reliability.  See Austin, 165 Vt.
at 396, 685 A.2d at 1081; see also Decoteau, 2007 VT 94,
¶¶ 13-18 (reviewing for “traditional guarantees of trustworthiness”).
 Although we acknowledge that defendant’s Vermont probation officer
received the documents through ICOTS from defendant’s Delaware probation
officer, that does not, in and of itself, make them sufficiently reliable to
justify dispensing with defendant’s right to confrontation.[6]  Here, the documents themselves are
unsigned, unsworn, and in some instances undated.  They contain no
certification or indication they are part of an official court record.
 The record on appeal is unclear at best, and the discrepancy between the
number of pages of the exhibits as recounted by the prosecutor at the time of
their admission and the number of pages submitted as part of the printed case
cannot be reconciled.  In addition to the lack of traditional indicia of
reliability, there is no information clearly linking the subject matter of all
three exhibits to defendant’s alleged admission of alcohol use.  The
documents lack clarity and continuity not just in form, but in substance.
It is unclear from the limited substantive information available concerning
defendant’s alleged admissions when defendant’s alleged alcohol consumption
took place, and when and to whom defendant made the alleged admissions.
¶ 22.
We also disagree that the unsigned, unsworn reports received through
ICOTS—allegedly authored by defendant’s Delaware probation officer—are more
akin to a lab report than a police officer’s affidavit.  In Finch,
we upheld the admission of a detoxification-center report corroborating hearsay
testimony given by the defendant’s probation officer because the document
“appear[ed] to be the kind of medical report where, as we have noted in another
context, the specter of questionable credibility and veracity is not present.”
 State v. Finch, 153 Vt. 216, 218-19, 569 A.2d 494,
495 (1989), overruled in part on other grounds by Austin,
165 Vt. at 396-97, 685 A.2d at 1081 (quotations omitted).  In the
present case, there was no evidence corroborating the ICOTS documents other
than defendant’s Vermont probation officer’s testimony, which constitutes
double hearsay as the only Delaware probation officer to whom the Vermont
probation officer spoke did not have first-hand knowledge of defendant’s
supposed admissions.  See Bell, 785 F.2d at 644 (describing
testimony of probation officer recounting a conversation with FBI agent who had
with no first-hand knowledge of the events as “double hearsay”); cf. Lloyd,
566 F.3d at 345 (explaining that out-of-court statements containing
multiple layers of hearsay “have been recognized as unreliable”).  The
ICOTS documents are not akin to the detoxification-center report in Finch,
which was admissible because it was similar to “routine, standard, and unbiased
medical reports by physician specialists.”  Langlois v. Dep’t of
Emp’t & Training, 149 Vt. 498, 502, 546 A.2d 1365, 1368
(1988) (quoting Richardson v. Perales, 402 U.S. 389, 404
(1971)), cited in Finch, 153 Vt. at 218-19, 569 A.2d at
495.
¶ 23.
In Austin, we held that the affidavit of a New Hampshire police
officer was inadmissible in a probation-revocation proceeding because “[t]he
relationship between police officers and those whom they arrest is much more
personal and adversarial in nature than that between chemists and those whose
urine they test.”  165 Vt. at 397, 685 A.2d at 1081-82 (quoting Bell,
785 F.2d at 644).  We further noted that “the Vermont Rules of
Evidence specifically exclude investigative reports by police and other law
enforcement personnel” from exceptions to the hearsay rule.  Id.,
685 A.2d at 1082 (citing V.R.E. 803(8)(B)(i)).  In this case, there
is no evidence as to who took defendant’s alleged admissions, and therefore we
cannot assess the nature of that relationship and whether there was bias or
motive to fabricate.  Assuming that defendant made his admissions to his
Delaware probation officer, such a relationship is personal, and has the
potential to become adversarial upon the filing of a revocation complaint, such
that it favors a probationer’s right to confrontation.  Further, these
documents are unsigned, unsworn, and uncertified, and thus the “circumstances
indicate [a] lack of trustworthiness.”  V.R.E. 803(8)(b)(iv).  Unlike
the ICOTS documents offered by the State, the affidavit in Austin,
although held to be inadmissible in that case, was signed, sworn, notarized,
and came with a penalty of perjury for falsifications or misrepresentations
contained therein.  Falsifications or misrepresentations in unsigned
reports such as the ICOTS documents at issue in this case, unlike the signed
affidavit in Austin, carry no such penalties, and thus the
trustworthiness element is absent.
¶ 24.
With regard to the remaining reliability factors, neither the documents
nor defendant’s Vermont probation officer’s testimony contain adequate
information or detail regarding the circumstances of defendant’s admissions.
 None of the documentation states to whom defendant made the admissions,
and important information is missing concerning when the disclosures were made
and when the offending behavior took place.  Finally, and importantly, the
ICOTS documents and defendant’s Vermont probation officer’s testimony were
offered to prove the central issue in the case, i.e., whether defendant
consumed alcohol while in Delaware in violation of condition 1, and constituted
the entirety of the State’s evidence in the revocation proceeding.  Thus,
upon consideration of these factors, we conclude that none of the documents
demonstrate sufficient, if any, indicia of reliability.
¶ 25.
Notwithstanding this lack of reliability, supra ¶ 20, we
next address the second factor of the Bell balancing test: the reason
presented by the State for failing to procure a live witness.  At hearing,
the State’s proffered reason for failing to procure defendant’s Delaware
probation officer was that “[o]bviously, Delaware has no particular interest in
coming to Vermont.”[7]
 This reason is woefully insufficient.  Other courts faced with
evaluating the sufficiency of the prosecution’s offer in this regard have recognized
the validity of various considerations for failing to procure live-witness
testimony.  See, e.g., United States v. Simms, 757 F.3d
728, 733 (8th Cir. 2014) (stating fear of violence and reprisal may provide
basis for not producing witness); United States v. Martin,
371 F.3d 446, 449 (8th Cir. 2004) (accepting fact that witness was
out of state, and that attempts to locate the witness had failed, as
“reasonably satisfactory” reason proffered by government for lack of live
testimony); Bell, 785 F.2d at 643 (explaining that good reasons for
not procuring live testimony may include “danger of physical harm” to an
informant or the level of difficulty or cost); United States v. Simmons,
812 F.2d 561, 564 (9th Cir. 1987) (recognizing difficulty and cost as possible
explanations).  In this case, the State failed to demonstrate that it made
any effort to determine the actual availability of defendant’s Delaware
probation officer, or what the cost or dangers in procuring him may have
been.  In light of the insufficiency of this explanation and the
aforementioned lack of indicia of reliability underpinning State’s exhibits 1,
2, and 3, the court erred by concluding that there was “good cause” to deny
defendant his right to confrontation.
¶ 26.
Having concluded that the State failed to establish “good cause” for
dispensing with defendant’s confrontation right, we further hold that the
admission of unreliable hearsay was not harmless error.  “An error is harmless if, without considering the offending evidence,
there is still overwhelming evidence to support the conviction and the evidence
at issue did not in any way contribute to the conviction.”  Groce,
2014 VT 122, ¶ 19 (quotation omitted).  Without the documents,
there was no evidence establishing that defendant consumed alcohol in violation
of his probation condition 1.  Because the erroneously admitted ICOTS
documents constituted the entirety of the State’s evidence in support of its
complaint that defendant violated his probation, their admission cannot be
harmless.  See Decoteau, 2007 VT 94, ¶ 19 (concluding
that erroneous admission of hearsay was not harmless error where “[t]he State
demonstrated . . . the reasons for [the defendant’s]
violation solely through improperly admitted hearsay evidence.”).  It is
thus necessary to vacate the probation violation determination.
¶ 27.
Because the issue is likely to arise again, we also address defendant’s
argument that Vermont Rule of Criminal Procedure 32.1 provides a right to
confrontation above and beyond the constitutional requirements set forth in Morrissey
and Gagnon, and which is recognized in Austin and Decoteau.
 Rule 32.1 states that at a revocation proceeding, a probationer “shall be
given: . . . the opportunity to question opposing
witnesses.”  V.R.Cr.P. 32.1(a)(2)(D).  The preceding section,
V.R.Cr.P. 32.1(a)(1)(C), applies to preliminary probation revocation hearings,
and states, “[t]he probationer shall be given . . . upon
request, the opportunity to question opposing witnesses unless, for good cause,
the judicial officer decides that justice does not require the appearance of
the witness.”  We recognize “the time-honored precept” in statutory
interpretation that expressio unius est exclusio alterius (the
expression of one thing is the exclusion of another).  State v.
Fontaine, 2014 VT 64, ¶ 10, ___ Vt. ___, 99 A.3d 1034
(quotation omitted).  Nonetheless, we read an implicit good-cause
exception into section 32.1(a)(2)(D).  Defendant argues the rule is
unambiguous, and that the clear language permits no exceptions to a
probationer’s right to confront adverse witnesses.
¶ 28.
The Vermont Rules of Criminal Procedure are based in part on the Federal
Rules of Criminal Procedure.  Reporter’s Notes, V.R.Cr.P. 1.  Prior
to its amendment in 2002, Federal Rule 32.1(a)(2)(D) contained language
identical to Vermont’s current Rule 32.1(a)(2)(D).  See Reporter’s Notes,
V.R.Cr.P. 32.1 (“This rule, which provides for revocation or modification of
probation, is based on Federal Rule 32.1, as added effective December 1,
1980 . . . .”); see also F.R.Cr.P. 32.1(a)(2)(D) (2001)
(amended 2002).  In spite of defendant’s argument that the language of
Vermont Rule 32.1 makes no allowances, federal courts consistently read a
good-cause exception into probationers’ statutory right to question adverse
witnesses under Federal Rule 32.1.  See, e.g., Morrissey,
408 U.S. at 489; Bell, 785 F.2d at 642-43; United
States v. Comito, 177 F.3d 1166, 1170-72 (9th Cir. 1999); United
States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997); United
States v. Zentgraf, 20 F.3d 906, 909 (8th Cir. 1994).
 Federal jurisprudence on this matter is persuasive, see, e.g., State v.
Madigan, 2015 VT 59, ¶ 13, ___ Vt. ___, ___ A.3d ___,
and we therefore read an implicit good-cause exception into Vermont
Rule 32.1(a)(2)(D).  To hold otherwise would require the State to
procure witnesses at the probationer’s request in every probation-revocation
proceeding regardless of the difficulty, time, or expense.  Such a burden
on the State is untenable.
¶ 29.
In sum, we hold that the trial court abused its discretion in finding
“good cause” to admit State’s exhibits 1, 2, and 3 and allowing defendant’s
Vermont probation officer to testify as to their content.  Because the
documents and testimony constituted the State’s only evidence at hearing, the
trial court’s factual finding that defendant consumed alcohol in violation of
his probation condition is not reasonably supported by credible evidence and
cannot stand.  Without that finding, this Court cannot affirm the trial
court’s legal conclusion that defendant violated his probation.
Reversed.

FOR THE COURT:

Associate
  Justice

[1]  ICOTS is a “web-based system that facilitates
the transfer of supervision for probationers and parolees” between the fifty
states and three territories that are signatories to the Interstate Compact for
Adult Offender Supervision (ICAOS).  See What is ICOTS?, Interstate
Comm’n for Adult Offender Supervision, http://www.interstatecompact.org/ICOTS/ WhatisICOTS.aspx (last visited May 22, 2015).
The purpose of ICAOS, which Vermont enacted in 2000, is:
through means of joint and
cooperative action among the compacting states . . . to
provide the framework for the promotion of public safety and protect the rights
of victims through the control and regulation of the interstate movement of
offenders in the community; . . . to provide for the
effective tracking, supervision and rehabilitation of these offenders by the
sending and receiving states; and . . . to equitably
distribute the costs, benefits and obligations of the compact among the
compacting states.
28 V.S.A.
§ 1351(a).

[2]  The transcript from the revocation
hearing indicates that the State offered, and the court admitted, three
exhibits at the hearing.  On appeal to this Court, no documents in
appellant’s printed case contain labels indicating their admission as
exhibits.  The transcript reflects that the documents admitted as State’s
1, 2, and 3 totaled ten pages; however, appellant submitted eleven pages as
part of his printed case.  This is most likely attributable to the fact
that State’s 1, as presented at trial, contained four pages, while in
appellant’s printed case it consists of five.

[3]
 Once again, there is a discrepancy between the number of pages in State’s
2 as presented at the revocation hearing, and as contained in appellant’s
printed case.  At the hearing, the State presented exhibit 2 as consisting
of four pages, while in the printed case the report appears to include three
pages. It is unclear whether the State intended to include a duplicate of the
first page of State’s 3, the alleged violation of probation sentence prder
(discussed below), as an attachment to exhibit 2, thus accounting for the
fourth page presented at the hearing.

[4]
From the many federal and state courts that have been called upon to consider
the bounds of “good cause” under Morrissey and Gagnon, “[t]wo
tests have emerged for determining whether the denial of the right to
confrontation in that context will comport with constitutional due
process.”  Henderson v. Commonwealth, 736 S.E.2d 901, 906
(Va. 2013).  The first test, dubbed the “reliability test,” “permits
admission of testimonial hearsay in revocation proceedings if it possesses
substantial guarantees of trustworthiness.”  Id. (citing Crawford v.
Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003)).  This test would
admit “sufficiently reliable hearsay evidence without a showing of cause for
the declarant’s absence.”  Lloyd, 566 F.3d at 344-45
(citations omitted).  The second test, the “balancing test,” “requires the
court to weigh the interests of the defendant in cross-examining his accusers against the interests of
the prosecution in denying confrontation.”  Henderson,
736 S.E.2d at 906 (citing Lloyd, 566 F.3d at 344-45 (“The
reliability of proffered hearsay is a principal factor, although not the sole
factor, relevant to the releasee’s interest in confrontation.”)); see also Bell,
785 F.2d at 642 (listing two factors—reliability and justification for not
producing a live witness—to consider when evaluating the government’s proffered
justification for denying confrontation).  It is this second, or
“balancing test,” as set forth in Bell, that we hold should be applied
by the criminal division in probation revocation proceedings in the State of
Vermont.  In adopting this balancing test, however, we recognize that
there may be instances where the reliability of the State’s hearsay evidence is
so poor that, generally speaking, no justification for the witness’ absence
could overcome the deficit.  Additionally, “[i]n some cases, the
releasee’s interest in confrontation may be overwhelmed by the hearsay’s
reliability such that the Government need not show cause for a declarant’s
absence.”  Lloyd, 566 F.3d at 345.  And thus, in both
situations, we reject a per se rule that the criminal division’s failure to
explicitly address the State’s justification for not producing a live witness
would amount to reversible error in all cases.  See id.  With
those caveats in mind, we nevertheless emphasize that a probationer may have a
sufficiently legitimate interest in confrontation even where the State’s
hearsay bears some degree of reliability and thus it is a sounder practice to
address both factors when ruling on the admissibility of hearsay evidence in a
probation-revocation proceeding.  Id.

[5]
 We also take this opportunity to clarify the appropriate use of the term
“good cause.”  “Good cause” relates to the broader question of whether a
court may deny a probationer the right to confront adverse witnesses and is not
to be confused with the justification offered by the State as to why the
witness is not present.  Indeed, the State may offer a good justification
for not producing a witness, but we caution the courts that labeling the
State’s proffered justification as “good cause” invites unnecessary confusion
into the analysis.  At a revocation hearing, before a probationer’s right
to confront adverse witnesses may be denied, a court must make an explicit
finding that there is “good cause” to do so.  The State’s proffered
justification for not providing the witness—whether good, bad, or somewhere in
between—is simply one aspect of that analysis.

[6]
 The State does not contend that any of the ICOTS documents fit within a
traditional exception to hearsay thereby rendering the good-cause analysis
moot.  Austin, 165 Vt. at 395, 685 A.2d at 1080-81 (“[I]n
determining the reliability of hearsay evidence offered at probation revocation
hearings, the federal circuit courts have been guided by the traditional
hearsay exceptions and exclusions from hearsay as recognized in the rules of
evidence.”).  We will not consider arguments not adequately raised and
briefed.  Johnson v. Johnson, 158 Vt. 160, 164 n.*,
605 A.2d 857, 859 n.* (1992).  Other courts, however, have held that
ICOTS documents fall within the public-records exception under the equivalent
of Vermont Rule of Evidence 803(8)(A).  See State v. Davis,
No. 1 CA-CR 13-0566, 2014 WL 1056500, at *2 (Ariz. Ct. App. Mar. 18, 2014)
(unpub.).
We recognize that there may be utility and convenience
to a probation officer in relying on the ICOTS network to send and receive
documents.  While ICOTS documents may assist in a probation officer’s
supervision of a probationer, or in deciding whether or not to file a violation
complaint, it does not follow that such documents are necessarily admissible
into evidence solely by virtue of them being sent and received through
ICOTS.  As with any piece of evidence, ICOTS documents must meet the
requisite standard of admissibility, whether that standard is pursuant to the
rules of evidence, or, as here, the Constitution.

[7]
The record reveals no effort by the State to obtain the attendance of
defendant’s Delaware probation officer through formal means or otherwise.
Rather, the record shows that, approximately one hour prior to the start of the
revocation hearing, the State asked the court whether such attendance was
necessary.  The court properly denied a pre-hearing ruling on this issue,
instead leaving the State to its proof.