Overdevest Nurseries, L.P. v. Scalia

• Decision Date: 15 April 2020
• Docket Number: Civil Action No. 18-1347 (RBW)
• Citation: 454 F.Supp.3d 46
• Parties: OVERDEVEST NURSERIES, L.P., Plaintiff, v. Eugene SCALIA, in his official capacity as the Secretary of the United States Department of Labor, et al., Defendants.
• Court: U.S. District Court — District of Columbia

454 F.Supp.3d 46

OVERDEVEST NURSERIES, L.P., Plaintiff,

v.Eugene SCALIA, in his official capacity as the Secretary of the United States Department of Labor, et al.,¹ Defendants.

Civil Action No. 18-1347 (RBW)

United States District Court, District of Columbia.

Signed April 15, 2020

Monte B. Lake, Christopher J. Schulte, CJ Lake, LLC, Washington, DC, for Plaintiff.

Elizabeth D. Kurlan, Glenn M. Girdharry, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Overdevest Nurseries, L.P., brings this civil action against Eugene Scalia, in his official capacity as the Secretary of the United States Department of Labor (the "Department"); Cheryl Stanton, in her official capacity as the Administrator of the Wage and Hour Division of the Department (the "Wage and Hour Division"); and John P. Pallasch, in his official capacity as the Assistant Secretary for Employment and Training for the Department (collectively, the "defendants"), pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706 (2018). See Complaint and Prayer for Declaratory and Injunctive Relief ("Compl." or the "Complaint") ¶¶ 12, 37–47. Currently pending before the Court are (1) the Plaintiff's Motion for Summary Judgment ("Pl.’s Mot.") and (2) the Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ("Defs.’ Mot."). Upon careful consideration of the parties’ submissions,² the Court concludes for the following reasons that it must deny the plaintiff's motion for summary judgment and grant the defendants’ cross-motion for summary judgment.

I. BACKGROUND

A. Statutory and Regulatory Framework

"The Immigration and Nationality Act (‘INA’), 8 U.S.C. §[§] 1101[–1537 (2018) ], permits employers to hire temporary foreign workers ‘to perform agricultural labor or services’ in the United States." Garcia v. Acosta, 393 F. Supp. 3d 93, 96 (D.D.C. 2019) (quoting 8 U.S.C. § 1101(a)(15)(H)(ii)(A) ).

[F]oreign workers hired to perform temporary agricultural work in the United States can be granted H-2A non-immigrant status [ ("H-2A workers") ] through a program that extends temporary visas to nonimmigrant foreign workers who "hav[e] a residence in a foreign country which [they] ha[ve] no intention of abandoning [and] who [are] coming [ ] to the United States to perform agricultural labor or services ... of a temporary or seasonal nature"

(the "H-2A program"). United Farm Workers v. Solis, 697 F. Supp. 2d 5, 6 (D.D.C. 2010) (alterations in original) (quoting 8 U.S.C. § 1101(a)(15)(H)(ii)(a) ). "An employer seeking to hire H-2A [ ] workers must first seek certification from the Department[,]" Mendoza v. Perez, 754 F.3d 1002, 1007 (D.C. Cir. 2014), 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, 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[,]

8 U.S.C. § 1188(a)(1). "An employer ... that desires to apply for temporary employment certification of one or more nonimmigrant foreign workers must file a completed Application for Temporary Employment Certification Form [ (the ‘certification form’] ) and, unless a specific exemption applies, a copy of Form ETA-790" (the "job order"), 20 C.F.R. § 655.130(a), which lists the "[j]ob qualifications and requirements[,]" id. § 655.122(b), and "[m]inimum benefits, wages, and working conditions[,]" id. § 655.122(c). "Only after obtaining the Department ... certification may the employer petition the United States Citizenship and Immigration Services to classify a specific foreign worker as an H-2A [ ] worker." Mendoza, 754 F.3d at 1007.

Pursuant to Congress's delegation of authority, the Department promulgated regulations "setting out the procedures adopted by the Secretary to secure information sufficient to make factual determinations of[ ] ... whether the employment of aliens for such temporary work will adversely affect the wages or working conditions of similarly employed [United States] workers." 20 C.F.R. § 655.0(a)(1). "The regulations ... cover the enforcement of all contractual obligations ... applicable to the employment of H-2A workers and workers engaged in corresponding employment[.]" 29 C.F.R. § 501.0. They require, inter alia, employers to pay H-2A workers and workers engaged in corresponding employment "a wage that is the highest of the [adverse effect wage rate],³ the prevailing hourly wage or piece rate, the agreed-upon collecting bargaining wage, or the Federal or State minimum wage[.]" 20 C.F.R. § 655.120(a) ; see id. § 655.122(l). Such protections are extended to workers engaged in corresponding employment, as well as to H-2A workers, to ensure that "[t]he employment of ... [an H-2A worker] will not adversely affect the wages and working conditions of workers in the [United States] similarly employed." 8 U.S.C. § 1188(a)(1)(ii).

At issue in this case is the Department's definition of "corresponding employment." In 1987, the Department promulgated regulations "cover[ing] the enforcement of all contractual obligations [ ] applicable to the employment of H-2A workers" and to "other workers ... engaged in corresponding employment[.]" Enforcement of Contractual Obligations for Temporary Alien Agricultural Workers Admitted Under Section 216 of the Immigration and Nationality Act, 52 Fed. Reg. 20,524, 20,527 (June 1, 1987) ("1987 Rule"). The 1987 Rule defined "other workers ... engaged in corresponding employment" as "other workers hired by employers of H-2A workers in the occupations and for the period of time set forth in the job order approved by [the] [Employment and Training Administration (‘ETA’)⁴ ] as a condition for granting H-2A certification[.]" Id.

"The Department's H-2A regulations remained largely unchanged from the 1987 Rule until 2008[,]" when "the Department significantly revised the[ ] regulations[.]" Temporary Agricultural Employment of H-2A Aliens in the United States, 75 Fed. Reg. 6884, 6884 (Feb. 12, 2010) ("2010 Rule") (discussing the history of the Department's H-2A regulations). The regulatory changes made in 2008 permitted H-2A workers to perform

[o]ther work typically performed on a farm that is not specifically listed on the [certification form] and is minor (i.e., less than [twenty] percent of the total time worked on the job duties that are listed on the [certification form] ) and incidental to the agricultural labor or services for which the H-2A worker was sought[,]

Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 Fed. Reg. 77,110, 77,217 (Dec. 18, 2008) ("2008 Rule"), and also limited the definition of "workers ... engaged in corresponding employment" to include only "United States [ ] workers newly hired by employers of H-2A workers in the same occupations as the H-2A workers during the period of time set forth in the labor certification approved by [the] ETA as a condition for granting H-2A certification," id. at 77,230 (emphasis added).

Then, in 2009, "the Department undertook a review of the policy decisions reflected in the 2008 [ ] Rule, specifically reviewing the worker protections afforded under that rule[,]" and again revised the regulations in 2010 pursuant to notice-and-comment rulemaking. 2010 Rule, 75 Fed. Reg. at 6884. See generally Temporary Agricultural Employment of H-2A Aliens in the United States, 74 Fed. Reg. 45,906 (Sept. 4, 2009) ("2009 Notice"). The 2010 Rule adopted a more expansive definition of corresponding employment, defining it as "[t]he employment of workers who are not H-2A workers by an employer ... in any work included in the job order, or in any agricultural work performed by the H-2A workers." 2010 Rule, 75 Fed. Reg. at 6979 (emphasis added). This revision expanded the regulatory protections for workers engaged in corresponding employment by (1) removing the "newly hired" language, thereby entitling all workers engaged in corresponding employment, not just those newly hired, to H-2A protections and benefits, including the adverse effect wage rate, see id. at 6886, and (2) "requir[ing] that workers employed by an H-2A employer who perform the same agricultural work as the employer's H-2A workers be paid at least the H-2A required wage for that work[,]" id. at 6885.

B. Factual and Procedural History

1. The Plaintiff's Participation in the H-2A Program

The plaintiff is "a large nursery and wholesale producer of plant material operating in Southern New Jersey." AR 158; see AR 656. Ed Overdevest is the plaintiff's president. See AR 657.

The plaintiff has participated in the H-2A program since 1999, see AR 158, by employing H-2A workers as order pullers, see AR 670, which are the "person[s] who would hold the paper, the clipboard, and essentially see to it that the correct plants, correct quantity [of plants], correct quality [of plants], [and plants with] no disease issues[ ] ... [we]re pulled by the crew" for pick-up and delivery, AR 671. "Each season, as part of its [H-2A order puller] applications, [the plaintiff] submitted a[ ] [certification form] and [a] [job order]" to the Department. AR 158. The plaintiff's 2012 and 2013 job orders required, inter alia, that order pullers have certain specialized experience, such as being "[f]amiliar with a range of proper plant names and sufficiently familiar with plant identifications so as to accurately and timely pull and load orders on delivery trucks[,]" AR 313, 338, and having at least "three months [of] recent nursery experience[,]" AR 313; see AR 338. In addition to the specialized order puller tasks, the 2012 and 2013 job orders included a "catch-all" provision, AR 453, providing that order pullers would "[p]erform[...