Everglades Harvesting & Hauling, Inc. v. Scalia, Civil Case No. 19-3291 (RJL)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: RICHARD J. LEON, United States District Judge
• Citation: 427 F.Supp.3d 101
• Parties: EVERGLADES HARVESTING AND HAULING, INC., et al., Plaintiffs, v. Eugene SCALIA, sued in his official capacity, et al., Defendants.
• Docket Number: Civil Case No. 19-3291 (RJL)
• Decision Date: 16 December 2019

427 F.Supp.3d 101

EVERGLADES HARVESTING AND HAULING, INC., et al., Plaintiffs,
v.
Eugene SCALIA, sued in his official capacity, et al., Defendants.

Civil Case No. 19-3291 (RJL)

United States District Court, District of Columbia.

Filed December 16, 2019

427 F.Supp.3d 103

Christopher J. Schulte, CJ Lake, LLC, Washington, DC, for Plaintiffs.

Aaron S. Goldsmith, U.S. Department of Justice Office of Immigration Litigation, DC Section, Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, United States District Judge

On October 31, 2019, Plaintiffs Everglades Harvesting and Hauling, Inc. ("Everglades"),

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Statewide Harvesting and Hauling, LLC ("Statewide"), Florida Fruit and Vegetable Association ("FFVA"), Florida Citrus Mutual, and National Council of Agricultural Employers ("NCAE") (collectively, "plaintiffs") filed suit against the United States Secretary of Labor, Eugene Scalia ("the Secretary"), and the Assistant Secretary of Labor for Employment and Training Administration, John P. Pallasch (collectively, "defendants"), alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq. See Compl. [Dkt. #1] ¶¶ 29–36. Six days later, plaintiffs filed a Motion for Temporary Restraining Order and Motion for Preliminary Injunction ("Mot. for P.I."). See Mot. for P.I., Nov. 6, 2019 [Dkt. #5]. The following day, I held a hearing at which I heard argument on and, ultimately, denied the TRO. See Civ. Case No. 19-3291, Minute Entry, Nov. 7, 2019. The parties briefed the motion for P.I., and this Court heard argument from both sides on November 21, 2019. See Civ. Case No. 19-3291, Minute Entry, Nov. 21, 2019. After review of the pleadings, oral argument, and the entire record, I hereby GRANT the motion for P.I. for the reasons set forth below. See id.

BACKGROUND

I. The H-2A Program and its Statutory and Regulatory Framework

The "H-2" temporary foreign worker program dates back to the original enactment of the Immigration and Nationality Act ("INA") in 1952. See Pub. L. 82-414 § 101(15)(H)(ii) (June 27, 1952).¹ The Immigration Reform Control Act of 1986 ("IRCA") later split the H-2 program into two components: H-2A for temporary agricultural workers and H-2B for nonagricultural workers. See Pub. L. 99-603 § 301(a).² In 2005, this portion of the INA was slightly modified once again. See Pub. L. 109-90 § 536 (Oct. 18, 2005). This portion of the INA now defines the term "immigrant" to include:

an alien having 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, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121(g) of title 26 [the Internal Revenue Code], agriculture as defined in section 203(f) of title 29 [the Fair Labor Standards Act], and the pressing of apples for cider on a farm, of a temporary or seasonal nature.

8 U.S.C. § 1101(a)(15)(H)(ii)(a).

Pursuant to the statutory directive above, the Department of Labor ("DOL") has promulgated a number of different definitions of "agricultural labor or services" over the years. See, e.g. , 52 FR 20496 (June 1, 1987) ; 73 FR 8538, 8555 (Feb. 13, 2008) ; 73 FR 77110, 77212 (Dec. 18, 2008) ; 75 FR 6884, 6887–6889 (Feb. 12, 2010). The current version of the regulations, adopted in 2010, almost mirrors the

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statute, defining "agricultural labor or services" as (additions to the statutory definition italicized):

agricultural labor as defined and applied in sec. 3121(g) of the Internal Revenue Code of 1986 at 26 U.S.C. 3121(g) ; agriculture as defined and applied in sec. 3(f) of the Fair Labor Standards Act of 1938 (FLSA) at 29 U.S.C. 203(f) ; the pressing of apples for cider on a farm; or logging employment. An occupation included in either statutory definition is agricultural labor or services, notwithstanding the exclusion of that occupation from the other statutory definition.

20 C.F.R. § 655.103(c) (emphasis added). As relevant here, the definition of "agricultural labor" under IRC § 3121(g)(1) :

includes all service performed ... on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;

26 U.S.C. § 3121(g)(1). The DOL has not adopted any of its own regulations further elaborating on the meaning of IRC § 3121(g)(1), but the Department of the Treasury has:

(1) Services performed on a farm by an employee of any person in connection with any of the following activities constitute agricultural labor:

(i) The cultivation of the soil;

(ii) The raising, shearing, feeding, caring for, training, or management of livestock, bees, poultry, fur-bearing animals, or wildlife; or

(iii) The raising or harvesting of any other agricultural or horticultural commodity.

(2) Services performed in connection with the production or harvesting of maple sap, or in connection with the raising or harvesting of mushrooms, or in connection with the hatching of poultry constitute agricultural labor only if such services are performed on a farm. Thus, services performed in connection with the operation of a hatchery, if not operated as part of a poultry or other farm, do not constitute agricultural labor.

26 C.F.R. § 31.3121(g)-1(b).

In addition to these statutes and regulations, the DOL's most recent pronouncement regarding the H-2A program is a document containing a series of frequently asked questions ("FAQs") and responses, which DOL distributed on October 23, 2019 in response to the controversy that gave rise to this case. See 2010 H-2A Final Rule FAQs: Round 14: H-2A Definition of Agricultural Labor or Services ("H2-A FAQs"), Oct. 23, 2019 [Dkt. #1-6].³ Of course, these FAQs have not gone through any formal rulemaking process, but they do provide evidence of and explanations for the DOLs latest thinking on the matters at issue here.

II. The H-2A Application and Appeal Process

In order to obtain an H-2A Temporary Labor Certification ("TLC"), an employer must go through a multi-step application process, the relevant parts of which can be summarized as follows: First, the employer submits a "job order" to a state agency between sixty and seventy-five days before the labor is needed. See 20 C.F.R. § 655.121(a). The state agency checks for

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compliance with DOL regulations, classifies the type of job the employer seeks to fill, and attempts to recruit U.S. workers to fill that job. See id. § 121(b)(1), (c). Second, while the state agency is completing these steps, the employer submits an H-2A application and supporting documentation to the DOL no less than forty-five days before the labor is needed. See id. § 655.130(b). Third, DOL employees then review the application for compliance with all applicable program requirements. See id. § 655.140(a). Within seven days of receiving the H-2A application, a DOL Certifying Officer ("CO") issues either a Notice of Acceptance ("NOA") or a Notice of Deficiency ("NOD"). Id. §§ 655.141(a), 655.143(a). NODs identify the reasons the employer failed to meet the H-2A program's criteria and, if applicable, list the modifications required for acceptance. See id. § 655.143(b). If the employer submits modifications, the CO will review and either accept or deny the modified application.

When their application for an H-2A TLC is denied, an employer has seven days to request either an expedited administrative review by, or a de novo administrative hearing before, an Administrative Law Judge ("ALJ"). See id. §§ 655.164(b), 655.171. If the employer does not request such a review within seven days, the CO's decision is final. See id. § 655.164(c). If the employer requests an expedited review, the ALJ will review the written record and any written submissions within five days of receiving the administrative record and either affirm, reverse, or modify the CO's decision, or remand to the CO for further action. See id. § 655.171(a). If the employer requests a de novo hearing, the ALJ will schedule a hearing for within five days of receiving the administrative record, consider any new evidence, and render a decision affirming, reversing, or modifying the CO's determination, or remand to the CO for further action, within ten days of the hearing. See id. § 655.171(b). The ALJ's decision after either an expedited review or a de novo hearing is the final decision of the Secretary. See id. § 655.171.

III. H-2A Agricultural Labor Contractors

Plaintiffs Everglades and Statewide are agricultural labor contractors ("ALCs"), also known as H-2A Labor Contractors. In laymen's terms, these ALCs contract with growers to provide them needed labor and then use the H-2A program to hire foreign...