Overdevest Nurseries, L.P. v. Walsh

• Citation: 2 F.4th 977
• Decision Date: 25 June 2021
• Docket Number: No. 20-5163,20-5163
• Parties: OVERDEVEST NURSERIES, L.P., Appellant v. Martin WALSH, in His Official Capacity as United States Secretary of Labor, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

2 F.4th 977

OVERDEVEST NURSERIES, L.P., Appellant

v.Martin WALSH, in His Official Capacity as United States Secretary of Labor, et al., Appellees

No. 20-5163

United States Court of Appeals, District of Columbia Circuit.

Argued February 4, 2021

Decided June 25, 2021

Monte B. Lake argued the cause for appellant. With him on the briefs was Christopher J. Schulte.

Aaron S. Goldsmith, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Glenn M. Girdharry, Assistant Director, and Matthew J. Glover, Senior Counsel to the Assistant Attorney General.

Before: Srinivasan, Chief Judge, Wilkins, Circuit Judge, and Silberman, Senior Circuit Judge.

Wilkins, Circuit Judge:

Appellant Overdevest Nurseries, L.P. ("Overdevest"), is a plant nursery based in New Jersey. Overdevest has participated in the H-2A program since 1999, which allows it to bring in qualified foreign workers on temporary visas when there is a lack of qualified U.S. workers. In 2016, the Department of Labor determined that Overdevest had violated regulations governing the H-2A program. Overdevest challenged the regulations in District Court, arguing that they were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest. The District Court granted the Department of Labor's motion for summary judgment. We now affirm the District Court.

I.

The United States has long provided temporary work authorization for foreign agricultural workers. Often facing a shortage of U.S. workers willing to perform agricultural work, the United States brings foreign agricultural workers temporarily to the United States. The Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 – 1537, has governed temporary work authorization since 1952. Under the INA, employers may temporarily hire foreign workers "when there are not enough qualified and available American workers to fill open jobs" through the H-2A program. Mendoza v. Perez , 754 F.3d 1002, 1007 (D.C. Cir. 2014) ; see also 8 U.S.C. § 1101(a)(15)(H)(ii)(a). To participate in the H-2A program, an employer must first certify to the Secretary of Labor that:

A. 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, ["subsection A"] and

B. 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 ["subsection B"].

8 U.S.C. § 1188(a)(1)(A)–(B). Only after the Department of Labor ("Department") has certified the petition can the employer petition the Department of Homeland Security to designate foreign workers as H-2A workers. Mendoza , 754 F.3d at 1007. Congress directed the Secretary of Labor ("Secretary") to promulgate regulations that would set the parameters of the program, particularly for temporary workers coming "to perform agricultural labor or services." 8 U.S.C. § 1101(a)(15)(H).

Pursuant to this authority, the Secretary promulgated regulations to protect American workers. Under these regulations, employers must pay the adverse effect wage rate to both H-2A workers and non-H-2A workers, which is the average hourly wage for agricultural workers as reported by the USDA. 20 C.F.R. § 655.103(b) ; id. § 655.120(a); id. § 655.122(l). The adverse effect wage rate provides a wage floor that aims to prohibit employers from underpaying foreign workers and thereby depressing wages for similarly-employed American workers. See Mendoza , 754 F.3d at 1008. Employers must also pay the adverse effect wage rate to workers engaged in "corresponding employment." 20 C.F.R. § 655.103(b) ; id. § 655.122(l). The definition of "corresponding employment" is the basis for the instant dispute.

In 2010, the Secretary amended the regulations defining "corresponding employment." The 2008 rule had limited the regulation's reach to newly-hired workers in the same "occupations" as the H-2A workers, and it permitted employers to staff H-2A workers for up to twenty percent of their time on less-skilled work that was incidental to the skilled work they were hired to perform. As a result, the 2008 rule did not require employers to pay the adverse effect wage rate to U.S. workers hired prior to the H-2A workers or to less-skilled U.S. workers in a different "occupation" than the H-2A workers, even though the H-2A workers might occasionally perform the same work as those less-skilled U.S. workers. The 2010 regulation changed course and defined "corresponding employment" as "[t]he employment of workers who are not H-2A workers ... in any work included in the job order, or in any agricultural work performed by the H-2A workers." 20 C.F.R. § 655.103(b). Thus, the 2010 rule requires employers to pay the adverse effect wage rate to any and all U.S. workers who perform any work that is the same as any skilled or agricultural work that is performed by H-2A workers.

Overdevest is a large plant nursery and producer of plant material based in southern New Jersey and has participated in the H-2A program since 1999. Overdevest grows and sells over 2,000 varieties of plants, and it employs both unskilled and skilled workers. Overdevest employs less-skilled U.S. workers who serve as production workers. Overdevest also employs H-2A workers as order pullers, who "hold the paper, the clipboard, and essentially see to it that the correct plants, correct quantity [of plants], correct quality [of plants] ... are pulled by the crew." A171. In 2012 and 2013, Overdevest again received certification to hire H-2A workers to serve as order pullers. In the work order forms, Overdevest certified that it expected the H-2A workers to "accurately and timely pull orders," "[g]enerate occasional written reports," and "[p]erform[ ] other general nursery tasks as necessary." A123. Overdevest paid the H-2A workers the adverse effect wage rate, but production workers received a lower hourly wage.

In 2013, the Department investigated Overdevest to determine whether it was complying with the H-2A program. Overdevest's H-2A workers were sometimes performing general production work, but Overdevest was paying the U.S. production workers performing the same work a lower hourly wage than the H-2A workers. The Department concluded that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. After an ALJ and the Department's Administrative Review Board found in favor of the Department, Overdevest filed suit in the District Court. Overdevest alleged that (1) the definition of "corresponding employment" was inconsistent with the INA and not entitled to Chevron deference, and (2) the Department misapplied the 2010 rule defining "corresponding employment" against Overdevest. After the parties filed cross-motions for summary judgment, the District Court denied Overdevest's motion and granted the Department's motion in whole. Overdevest timely appealed.

"We review the district court's grant of summary judgment de novo ." W. Surety Co. v. U.S. Eng'g Constr., LLC , 955 F.3d 100, 104 (D.C. Cir. 2020). We "evaluat[e] the administrative record directly and invalidat[e] the Department's actions only if, based on that record, they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Stand Up for California! v. U.S. Dep't of Interior , 879 F.3d 1177, 1181 (D.C. Cir. 2018) (internal quotation marks omitted); see also 5 U.S.C. § 706(2)(A).

II.

We first turn to Overdevest's challenge to the Secretary's interpretation of 8 U.S.C. § 1188(a)(1) in the 2010 Rule. Overdevest argues that the Secretary was not entitled to Chevron deference because (1) Congress, in enacting section 1188(a)(1), was explicit that only qualified U.S. workers were to receive the same wage as H-2A workers; and (2) the Secretary's interpretation was not reasonable.

Under the Chevron framework, we must first resolve whether "Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. NRDC , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In determining whether a statute is ambiguous, "the court begins with the text, and employs ‘traditional tools of statutory construction’ to determine whether Congress has spoken directly to the issue." Am. Hosp. Ass'n v. Azar , 964 F.3d 1230, 1241 (D.C. Cir. 2020) (quoting Prime Time Intern. Co. v. Vilsack , 599 F.3d 678, 683 (D.C. Cir. 2010) ). Should the text not answer the question, this Court will also consider the "structure, purpose, and legislative history to determine if the Congress has expressed its intent unambiguously." U.S. Sugar Corp. v. EPA , 830 F.3d 579, 605 (D.C. Cir. 2016) (per curiam). If, after exhausting all of our tools of construction, we determine that "the statute is ‘silent or ambiguous with respect to th[e] specific issue,’ we assume ‘Congress has empowered the agency to resolve the ambiguity,’ and we defer to the agency's interpretation as long as it is reasonable." Am. Hosp. Ass'n , 964 F.3d at 1240 (quoting Util. Air Reg. Grp. v. EPA , 573 U.S. 302, 315, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014) ).

Overdevest argues that Congress was unambiguous in enacting section 1188(a)(1). Recall that the text provides that an employer must certify that "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." 8 U.S.C. § 1188(a)(1)(A). Because subsection A requires employers to certify that there are insufficient U.S. workers "who are able, willing, and...