UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) OVERDEVEST NURSERIES, L.P., ) ) Plaintiff, ) ) v. ) Civil Action No. 18-1347 (RBW) ) EUGENE SCALIA, in his official capacity ) as the Secretary of the United States ) ) Department of Labor, et al.,1 ) ) Defendants. )
MEMORANDUM OPINION
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
1 Eugene Scalia, Cheryl Stanton, and John P. Pallasch are substituted as the proper party defendants pursuant to Federal Rule of Civil Procedure 25(d). 2 In addition to the filings already identified, the Court considered the following submissions in rendering its (continued . . . ) 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[,]
(. . . continued) decision: (1) the Defendants’ Answer to Plaintiff’s Complaint (“Answer”); (2) the Memorandum in Support of Plaintiff’s Motion for Summary Judgment (“Pl.’s Mem.”); (3) the Defendants’ Memorandum of Points and Authorities in Support of Cross-Motion for Summary Judgment (“Defs.’ Mem.”); (4) the Memorandum of Law in Opposition to Defendants’ Cross-Motion for Summary Judgment and in Further Support of Plaintiff’s Motion for Summary Judgment (“Pl.’s Opp’n”); (5) the Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Cross Motion for Summary Judgment (“Defs.’ Reply”); (6) the Joint Appendix (“AR”); (7) the Plaintiff’s Notice of Supplemental Authority (“Pl.’s Not.”); and (8) the Defendants’ Response to Plaintiff’s Notice of Supplemental Authority (“Defs.’ Resp.”).
2 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 filed 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
3 The adverse effect wage rage is “[t]he annual weighted average hourly wage for field and livestock workers (combined) in the States or regions as published annually by the [United States] Department of Agriculture [ ] based on its quarterly wage survey.” 20 C.F.R. § 655.103(b).
3 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)
4 “The issuance and denial of labor certifications under 8 U.S.C. § 1188 has been delegated by the Secretary to [the] ETA, an agency within the [ ] Department . . . , who in turn has delegated that authority to the Office of Foreign Labor Certification[.]” 29 C.F.R. § 501.1(b).
4 (“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 rage, 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
5 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[] other general nursery tasks as necessary[,]” AR 319, 338. Mr. Overdevest
explained that this catch-all provision was designed to “allow for [order pullers] to work in
lesser[-]skilled tasks, when they[] [were] not busy pulling orders or other higher[-]order tasks.”
AR 454.
“For the 2012 and 2013 growing seasons, [the plaintiff] applied for and was certified by
the Department . . . for [fifty-five] H-2A workers each year for the order puller position.”
AR 158 (internal quotation marks omitted). During that time, the plaintiff also employed sixty-
nine lesser-skilled domestic workers (the “domestic workers”), see AR 160, who were paid less
than the adverse effect wage rage, see AR 430–31. “[W]hile the H-2A work[ers] [hired by the
6 plaintiff for the 2012 and 2013 growing seasons] spen[t] the majority of their time performing
higher[-]skilled tasks, [ ] they occasionally perform[ed] some of the lesser-skilled duties
performed by the domestic workers.” AR 159 (internal quotation marks omitted); see AR
446–47 (Mr. Overdevest testifying that the H-2A workers would perform “lesser[-]skilled jobs”
when “things [were] slow”); AR 680–81 (Mr. Overdevest testifying that the H-2A workers
typically did not engage in higher-skilled order pulling tasks during their slower Friday and
Saturday work shifts). And, while the domestic workers hired by Overdevest for the 2012 and
2013 growing seasons “did not possess the skill or ability to perform the higher-skilled order
pulling tasks[,]” “every domestic worker from 2012 and 2013 engaged in activities that [ ] [were]
listed in the job orders.” AR 159 (internal quotation marks omitted); see AR 455–57 (Mr.
Overdevest testifying that the domestic workers performed at least some of the duties listed in
the 2012 and 2013 job orders).
2. The Plaintiff’s Compliance with the H-2A Program Requirements
In 2007, the Wage and Hour Division conducted an investigation into the plaintiff’s
compliance with the 1987 Rule (the “2007 investigation”). See AR 160, 749–50. The issue of
“whether there was a violation by . . . [the plaintiff] for not paying [domestic] workers engaged
in corresponding employment [the] same as [the] H-2A workers” was “raised and the possibility
of it being a violation of the [1987] [R]ule[] . . . was raised, but no determination was made to
charge a violation at the time.” AR 750; see AR 160. Following the conclusion of the 2007
investigation, John Kelly, the then-District Director of the Wage and Hour Division, sent an
e-mail to Mr. Overdevest informing him that the Wage and Hour Division was closing the 2007
investigation on the ground that the Wage and Hour Division “d[id] not have guidance on”
7 corresponding employment and “d[i]d not wish to use [ ] [the plaintiff’s case] as a test case to
establish such guidance[.]” AR 554; see AR 750–51.
In 2013, the Wage and Hour Division conducted an investigation into the plaintiff’s
compliance with the 2010 Rule during the time period beginning March 31, 2012, and ending on
August 31, 2013 (the “2013 investigation”). See AR 159, 419. On September 25, 2013, the
Wage and Hour Division concluded its 2013 investigation and determined that the plaintiff failed
to comply with the 2010 Rule and owed $72,193.89 in unpaid wages to its domestic workers and
$50,400.00 in “civil money penalties[.]” AR 419. On October 27, 2015, the Department revised
its unpaid wages calculation and concluded that the plaintiff owed $92,984.22 in unpaid wages to
its domestic workers. See AR 177.
The plaintiff thereafter sought administrative review of the Department’s determination.
See AR 4. On February 18, 2016, an administrative law judge granted the Department’s motion
for summary judgment and denied the plaintiff’s cross-motion for summary judgment. See AR
156. On March 15, 2018, two administrative appeals judges affirmed the administrative law
judge’s decision. See AR 16.
After the conclusion of the administrative review proceedings, on June 8, 2018, the
plaintiff initiated this civil action against the defendants, see Compl. at 1, alleging that (1) “the
Department has misinterpreted the 2010 Rule with respect to ‘corresponding employment’ in this
specific case” (“Count One”), id. at 16 (capitalization removed), and (2) “if the Department
correctly followed the 2010 Rule, as written, then that rule was issued inconsistent with statutory
authority” (“Count Two”), id. at 18 (capitalization removed). The parties thereafter filed their
cross-motions for summary judgment, see generally Pl.’s Mot; Defs.’ Mot., which are the
subjects of this Memorandum Opinion.
8 II. STANDARD OF REVIEW
A moving party is entitled to summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In the APA context, summary judgment is the mechanism for
deciding whether as a matter of law an agency action is supported by the administrative record
and is otherwise consistent with the APA standard of review. See, e.g., Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971). But, due to the limited role a district
court plays in reviewing the administrative record, the typical summary judgment standards set
forth in Federal Rule of Civil Procedure 56 are not applicable. See Stuttering Found. of Am. v.
Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007). Rather, “[u]nder the APA, it is the role of the
agency to resolve factual issues to arrive at a decision that is supported by the administrative
record, whereas ‘the function of the district court is to determine whether or not as a matter of
law the evidence in the record permitted the agency to make the decision it did.’” Id. (quoting
Occidental Eng’g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769–70 (9th Cir.
1985)). In other words, “when a party seeks review of agency action under the APA, the district
judge sits as an appellate tribunal[,]” and “[t]he ‘entire’ case on review is a question of law.”
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001).
The APA “sets forth the full extent of judicial authority to review executive agency
action for procedural correctness.” Fed. Commc’ns Comm’n v. Fox Television Stations, Inc.,
556 U.S. 502, 513 (2009). It requires a district court to “hold unlawful and set aside agency
action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law[,]” 5 U.S.C. § 706(2)(A); “contrary to constitutional right,
power, privilege or immunity[,]” id. § 706(2)(B); or “in excess of statutory jurisdiction,
9 authority, or limitations, or short of statutory right[,]” id. § 706(2)(C). “The scope of review
under the ‘arbitrary and capricious’ standard is narrow and a [district] court is not to substitute its
judgment for that of the agency.” Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the agency must examine the relevant
data and articulate a satisfactory explanation of its action including a ‘rational connection
between the facts found and the choice made.’” Id. (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). However, the district “[c]ourt[] ‘will uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned.’” Pub. Citizen, Inc. v. Fed.
Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993) (quoting Bowman Transp., Inc. v.
Ark.-Best Freight Sys., Inc. 419 U.S. 281, 286 (1974)).
III. ANALYSIS
The plaintiff argues that it is entitled to summary judgment on Count One of the
Complaint because the Department’s “interpretation and application of the 2010 . . . Rule in this
specific case is arbitrary and capricious under the APA[,]” Pl.’s Mem. at 38 (capitalization
removed), and on Count Two of the Complaint because “as written and applied to [the] plaintiff,
the 2010 . . . Rule is inconsistent with statutory authority and illegal[,]” id. at 28 (capitalization
removed). The defendants respond that they are entitled to summary judgment on Count One
because the Department “reasonably concluded that [the plaintiff’s] domestic [ ] workers were
engaged in corresponding employment with its H-2A workers[,]” Defs.’ Mem. at 29
(capitalization removed), and on Count Two because the 2010 Rule “is entitled to substantial
deference because it is a reasonable interpretation of the H-2A statute’s requirements[,]” id. at
23. Because Count Two addresses the reasonableness of the 2010 Rule generally, whereas
Count One addresses the reasonableness of the Rule as applied to the plaintiff, the Court
10 concludes that it is appropriate to begin its analysis by first addressing Count Two and then
addressing Count One.
A. Count Two
As to Count Two of the Complaint, the plaintiff argues that “[t]he 2010 . . . [R]ule is
inconsistent with and directly contradicts Congress’[s] explicit wording and clear intent in
8 U.S.C. § 1188(a)(1) and (c)(3).” Pl.’s Mem. at 28. The defendants respond that the 2010 Rule
is a reasonable interpretation of 8 U.S.C. § 1188(a)(1) because the Department
provided considerable explanation for why the agency adopted the current regulatory definition of “corresponding employment,[”] and the 2010 [ ] [R]ule is a reasonable interpretation of [the] [Department’s] statutory directive to ensure that the employment of H-2A workers does not “adversely affect” the wages and working conditions of workers in the United States “similarly employed.”
Defs.’ Mem. at 18.
As a preliminary matter, the Court must determine the appropriate standard under which
to evaluate the reasonableness of the 2010 Rule, which interprets 8 U.S.C. § 1188(a)(1). See
Mendoza, 754 F.3d at 1021–22 (explaining that 8 U.S.C. § 1188(a)(1) “explicitly envisions
implementing regulations that will clarify the meaning and application of its provisions”). “In
reviewing an agency’s interpretation of the laws it administers, [a reviewing court] appl[ies] the
principles of Chevron[,] U.S.A.[,] Inc. v. Natural Resources Defense Council[, Inc.,] 467 U.S.
837 (1984).” Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745, 754 (D.C. Cir. 2007).
“If the agency enunciates its interpretation through notice-and-comment rule-making or formal
adjudication, [the reviewing court] give[s] the agency’s interpretation Chevron deference.” Id.
Here, the Department promulgated the 2010 Rule pursuant to notice-and-comment rulemaking.
See 2010 Rule, 75 Fed. Reg. at 6884. See generally 2009 Notice, 74 Fed. Reg. at 45,906.
11 Accordingly, the Court must proceed in accordance with the two-part test articulated in
Chevron.5
“Pursuant to Chevron [s]tep [o]ne, if the intent of Congress is clear, the reviewing court
must give effect to the unambiguously expressed intent.” Animal Legal Def. Fund v. Perdue,
872 F.3d 602, 610 (D.C. Cir. 2017). In determining whether “Congress has directly spoken to
the precise question at issue,” Nat’l Treasury Emps. Union v. Fed. Labor Relations Auth., 414
F.3d 50, 57 (D.C. Cir. 2005), a reviewing court “us[es] the traditional tools of statutory
construction[,]” Cal. Indep. Sys. Operator Corp. v. Fed. Energy Reg. Comm’n, 372 F.3d 395,
400 (D.C. Cir. 2004), including “evaluation of the plain statutory text at issue, the purpose and
structure of the statute as a whole, while giving effect, if possible, to every clause and word of a
statute, and—where appropriate—the drafting history[,]” Pharm. Research & Mfrs. of Am. v.
Fed. Trade Comm’n, 44 F. Supp. 3d 95, 112 (D.D.C. 2014), aff’d, 790 F.3d 198 (D.C. Cir.
2015). However, “[i]f Congress has not directly addressed the precise question at issue, the
reviewing court proceeds to Chevron [s]tep [t]wo.” Ass’n of Private Sector Colls. & Univs. v.
Duncan, 681 F.3d 427, 441 (D.C. Cir. 2012). At step two, “the [reviewing] court defers to the
[agency]’s interpretation so long as it is ‘based on a permissible construction of the statute.’”
Nat’l Treasury Emps. Union, 414 F.3d at 57 (quoting Chevron, 467 U.S. at 842–43). The Court
will first address Chevron step one, and then, if necessary, address Chevron step two.
5 The Court notes, and the parties agree, see Pl.’s Mem. at 37; Defs.’ Mem. at 19 n.10, that Chevron, rather than Auer, deference is the appropriate framework under which to evaluate the 2010 Rule—the Department’s interpretation of 8 U.S.C. § 1188(a)(1)—because Chevron deference implicates issues “raised in connection with judicial deference to agency interpretations of statutes enacted by Congress[,]” whereas Auer deference implicates “[i]ssues surrounding judicial deference to agency interpretations of their own regulations[,]” Kisor v. Wilkie, 139 S. Ct. 2400, 2425 (2019) (Roberts, C.J., concurring).
12 1. Chevron Step One
As to Chevron step one, the plaintiff argues that “[i]n creating the H-2A program,
Congress spoke clearly and unambiguously on the subject[,]” Pl.’s Mem. at 29, and
“unambiguously express[ed] its intent that the Department . . . would consider the similarity of
employment and relative ability and qualifications of workers in the specific occupation certified
compared with those outside that position[,]” id. at 30. In support of this position, the plaintiff
argues that, in 8 U.S.C. § 1188(a)(1), Congress clearly defined the terms “able, willing, and
qualified” and “similarly employed” “consistent with [the] [p]laintiff’s arguments[,]” id. at 32
(capitalization removed); see id. at 32–34, and that “the plain meaning of the words ‘able,
willing, and qualified’ and ‘similarly employed’ negates [the] defendants’ argument that the [ ]
statute is ambiguous[,]” Pl.’s Opp’n at 6 (capitalization removed). The defendants respond that
“the statute does not . . . define ‘adverse effect’ on ‘similarly employed’ domestic workers[,]”
Defs.’ Mem. at 20, and that “[i]n light of these ambiguities, the [District of Columbia] Circuit
and another district court in this jurisdiction have long recognized that Congress did not define
‘adversely affect’ or ‘similarly employed’ at 8 U.S.C. § 1188(a)(1)(B), leaving it to [the]
[Department’s] discretion to determine how to ensure that the hiring of H-2A workers meets the
statutory standard[,]” id. at 21 (citing Am. Fed. of Labor & Cong. of Indus. Orgs. (AFL-CIO) v.
Dole, 923 F.2d 182, 184 (D.C. Cir. 1991), and United Farm Workers, 697 F. Supp. 2d at 9).
“Section 1188(a)(1) establishes the INA’s general mission; Congress left it to the
Department . . . to implement that mission through the creation of specific substantive provisions
. . . . The statute explicitly envisions implementing regulations that will clarify the meaning and
application of its provisions.” Mendoza, 754 F.3d at 1021–22; cf. AFL-CIO, 923 F.2d at 184
(“Congress expressly incorporated the prior regulatory requirement that employing foreign
13 workers would not adversely affect the wages and working conditions of workers in the United
States similarly employed, as part of [the] [Immigration Reform and Control Act of 1986’s]
amendments of [the] INA governing temporary worker (or H-2A) visas. Congress did not,
however, further define adverse effect and left it in the Department’s discretion how to ensure
that the importation of farmworkers met the statutory requirements.” (footnote omitted) (citations
and internal quotation marks omitted) (citing 8 U.S.C. § 1188(a)). “[A]lthough the plaintiff[]
state[s] that the phrase[s] [‘able, willing, and qualified’ and] ‘similarly employed” ha[ve] [ ]
precise statutory meaning[s] leaving no room for ambiguity, . . . the [C]ourt [is not] aware of any
such definition[s] in either the statute or the applicable case law.” United Farm Workers, 697 F.
Supp. 2d at 9. “Thus, . . . Congress has not offered [ ] sufficient definition[s] to end the [C]ourt’s
analysis at this point. The [C]ourt, accordingly, moves to the second step of the Chevron
analysis.” Id.
2. Chevron Step Two
As to Chevron step two, the plaintiff argues that “the question for the [C]ourt is whether
the agency’s answer is based on a permissible construction of statute[,]” Pl.’s Mem. at 36
(internal quotation marks omitted), and that to make this showing, “the Department . . . would [ ]
clearly need to prove to the Court that its 2010 interpretation of corresponding employment is
based on a permissible construction of [§] 1188, which it clearly does not[,]” id. at 37 (internal
quotation marks omitted). Specifically, the plaintiff argues that its interpretation of the definition
of corresponding employment—i.e., that only domestic workers who are “able, willing, and
qualified” to perform all work included in the order puller job order can be engaged in
corresponding employment, and therefore entitled to the same adverse effect wage rage to which
H-2A workers are entitled, see Pl.’s Mem. at 28—is the only permissible construction of the
14 statute. It further argues that the Department’s conflicting interpretation of corresponding
employment articulated in the 2010 Rule—i.e., that any domestic workers engaged “in any work
included in the job order, or in any agricultural work performed by the H-2A workers[,]” 29
C.F.R. § 501.3 (emphasis added), can be engaged in corresponding employment—is inconsistent
with the statute, see Pl.’s Mem. at 30–31. The defendants respond that “[t]he [ ] 2010 Rule is a
reasonable construction of the statute’s requirement that the hiring of H-2A workers not
adversely affect similarly employed domestic workers and, therefore, is entitled to substantial
deference.” Defs.’ Mem. at 28.
“An agency receives deference at Chevron step two if it has ‘offered a reasoned
explanation for why it chose [its] interpretation.” Athenex Inc. v. Azar, 397 F. Supp. 3d 56, 63
(D.D.C. 2019) (alteration in original) (quoting Village of Barrington, Ill. v. Surface Transp. Bd.,
636 F.3d 650, 660 (D.C. Cir. 2011)), appeal dismissed sub nom., Athenex Pharma Sols., LLC v.
Azar, No. 19-5223, 2019 WL 5394642 (D.C. Cir. Oct. 1, 2019).
As in step one, this requires application of the traditional tools of statutory interpretation, including reviewing the text, structure, and purpose of the statute. The difference at this stage, however, is the criteria—i.e., whereas step one asked whether Congress require[d] a certain interpretation, step two asks whether the same statutory text, history, and purpose permit the interpretation chosen by the agency.
Ass’n for Cmty. Affiliated Plans v. U.S. Dep’t of Treasury, 392 F. Supp. 3d 22, 42 (D.D.C.
2019) (alteration in original) (citation and internal quotation marks omitted). “[I]n order to
withstand judicial scrutiny, the [agency’s] actions need not be the only permissible construction
that [it] might have adopted, nor may the [C]ourt substitute its own judgment for that of the
[agency].” United Farm Workers, 697 F. Supp. 2d at 11 (second alteration in original) (citation
and internal quotation marks omitted). Rather, in determining whether the agency’s policy is
reasonable under Chevron step two, “it suffices that the new policy is permissible under the
15 statute, that there are good reasons for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates.” Fox Television Stations, Inc., 556 U.S. at
515.
As a preliminary matter, the Court finds that, contrary to the plaintiff’s assertion, the
structure of 8 U.S.C. § 1188(a)(1) does not compel the conclusion that the Department’s
definition of corresponding employment in the 2010 Rule is contrary to the statute. The plaintiff
argues that its proffered interpretation of corresponding employment is the only permissible
interpretation because “the statutory language [in 8 U.S.C. § 1188(a)(1)] is conjunctive[,]” Pl.’s
Opp’n at 12, and therefore paragraphs (A) and (B) must be read together so that only “able,
willing, and qualified” domestic workers are “similarly employed” and therefore, engaged in
corresponding employment, see Pl.’s Mem. at 30. However, the plaintiff’s interpretation “runs
afoul of the usual rule that when the legislature uses certain language in one part of the statute
and different language in another, the [C]ourt assumes different meanings were intended.” Sosa
v. Alvarez-Machain, 542 U.S. 692, 712 n.9 (2004). Compare 8 U.S.C. § 1188(a)(1)(A)
(describing “workers who are able, willing, and qualified”), with id. § 1188(a)(1)(B) (describing
“workers in the United States similarly employed”).
Moreover, a “review[] [of] the text, structure, and purpose” of 8 U.S.C. § 1188(a)(1)
demonstrates that “the interpretation [of corresponding employment] chosen by the [defendants]”
is “permi[ssible]” under Chevron step two. Ass’n for Cmty. Affiliated Plans, 392 F. Supp. 3d at
42. The Circuit observed in Mendoza that
[t]he clear intent of this provision is to protect American workers from the deleterious effects the employment of foreign labor might have on domestic wages and working conditions. In particular, Congress was concerned about (1) the American workers who would otherwise perform the labor that that might be given to foreign workers, and (2) American workers in similar employment whose wages
16 and working conditions could be adversely affected by the employment of foreign laborers.
754 F.3d at 1017; see Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798,
805 (D.C. Cir. 1985) (“The legislative history of th[e] [INA] (as initially passed) clearly evinces
a congressional purpose to keep American labor stalwart in the face of foreign competition to the
United States.”). The 2010 Rule’s definition of corresponding employment is consistent with
congressional “intent . . . to protect American workers from the deleterious effects the
employment of foreign labor might have on domestic wages and working conditions[,]”
Mendoza, 754 F.3d at 1017, because it specifically “require[s] [United States] workers to be paid
the same wages and conditions that H-2A workers receive when performing the same work[,]”
2010 Rule, 75 Fed. Reg. at 6886. Indeed, as the Department explained in the preamble to the
2010 Rule, the addition of the phrase “or in any agricultural work performed by the H-2A
workers” in the 2010 Rule’s definition of corresponding employment
was added to address the adverse impact on [United States] workers when an H-2A employer engages H-2A workers in agricultural work outside the scope of work found in the approved job order, including work impermissibly performed outside the area of intended employment. Domestic workers should not be disadvantaged when an employer violates the terms and conditions of the H-2A job order.
Id. (emphasis added); see 2009 Notice, 74 Fed. Reg. at 45,911 (“proposing to define
‘corresponding employment’ [ ] in keeping with the statutory language mandating that the
importation of H-2A workers not adversely impact the wages and working conditions of workers
similarly employed in the [United States]”).
Here, “the [C]ourt determines that the [Department] ‘has offered an explanation that it
reasonable and consistent with the regulation’s language and history,’ thus supporting the
[Department’s] objectives.” United Farm Workers, 697 F. Supp. 2d at 10 (quoting Trinity
Broad. of Fla., Inc. v Fed. Commc’ns Comm’n, 211 F.3d 618, 627 (D.C. Cir. 2000)). The Court
17 therefore concludes that the Department’s definition of corresponding employment as articulated
in the 2010 Rule is a reasonable interpretation of 8 U.S.C. § 1188(a)(1) and is entitled to
substantial deference under Chevron step two. Accordingly, summary judgment is awarded to
the defendants on Count Two of the Complaint.
B. Count One
As to Count One of the Complaint, the plaintiff argues that the Department’s
“interpretation and application of th[e] 2010 . . . [R]ule in this specific case is arbitrary and
capricious under the APA” because “the Department doubly subverted H-2A employers’
reasonable reliance on the longstanding corresponding employment definition, both from what
the Department had done from 1987–2010 and what the Department had said in 2010 when
issuing the rule.” Pl.’s Mem. at 39. Specifically, the plaintiff argues that the Department’s
interpretation of the 2010 Rule is arbitrary and capricious because the Department changed
course without offering a reasoned explanation for the change of its prior position, see Pl.’s
Mem. at 39, and that the Department’s application of the 2010 Rule to the plaintiff is arbitrary
and capricious because the “[p]laintiff and other H-2A employers cannot comply with the
corresponding employment rule without violating other H-2A rules,” id. at 41. The defendants
respond that the Department “reasonably construed and applied the 2010 ‘corresponding
employment’ rule to [the] [p]laintiff’s case[.]” Defs.’ Mem. at 18 (internal quotation marks
omitted).
1. Whether the Department’s Policy Changes in the 2010 Rule are Arbitrary and Capricious
The plaintiff first argues that the Department’s interpretation of the 2010 Rule is arbitrary
and capricious because the Department changed course without offering a reasoned explanation
for the change of its prior position. See Pl.’s Mem. at 39. The defendants respond that
18 as . . . history makes clear, [the] [Department] has never defined corresponding employment to require that a domestic worker perform, or be able, willing[,] and qualified to perform, all of the work included on the job order. Instead, [the] [Department] has consistently required that domestic workers who perform any work included in the job order be paid the H-2A wage rate for that time.
Defs.’ Mem. at 33–34.
“A central principle of administrative law is that, when an agency decides to depart from
decades-long past practices and official policies, the agency must at a minimum acknowledge the
change and offer a reasoned explanation for it.” Am. Wild Horse Pres. Campaign v. Perdue, 873
F.3d 914, 923 (D.C. Cir. 2017). “For that reason, [the Circuit] ha[s] long held that ‘[a]n agency
may not depart from a prior policy sub silentio[.]” Id. (third and fourth alterations in original)
(quoting U.S. Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674, 707 (D.C. Cir. 2016)).
“The analysis of disputed agency action under Chevron [s]tep [t]wo and arbitrary and capricious
review is often ‘the same, because under Chevron [s]tep [t]wo, [the court asks] whether an
agency interpretation is arbitrary and capricious in substance.” Braeburn Inc. v. U.S. Food &
Drug Admin., 389 F. Supp. 3d 1, 23 (D.D.C. 2019) (fifth alteration in original) (quoting Agape
Church, Inc. v. Fed. Commc’ns Comm’n, 738 F.3d 397, 410 (D.C. Cir. 2013)).
Here, relevant to the plaintiff’s challenge, the only policy changes that the Department
implemented in the 2010 Rule were to remove the 2008 Rule’s allowance for “minor . . . and
incidental” agricultural work by H-2A workers not listed in the job order, 73 Fed. Reg. at 77,212,
and to require that H-2A employers pay domestic workers the adverse effect wage rage for “any
agricultural work performed by the H-2A workers[,]” even if the agricultural work is not listed in
the job order, 75 Fed. Reg. at 6979 (emphasis added). As the Department “is charged with
protection of workers” “[i]n administering the labor certification program,” NAACP, Jefferson
Cty. Branch v. Donovan, 566 F. Supp. 1202, 1206 (D.D.C. 1983), it was free to make these
19 policy changes, provided that it offered a reasoned explanation for the changes, see Am. Wild
Horse Pres. Campaign, 873 F.3d at 923. Here, the Department offered the following
explanation:
This language was added to address the adverse impact on [United States] workers when an H-2A employer engages H-2A workers in agricultural work outside the scope of work found in the approved job order, including work impermissibly performed outside the area of intended employment. Domestic workers should not be disadvantaged when an employer violates the terms and conditions of the H-2A job order. This does not require that every worker on a farm be paid the H-2A required wage. It does, however, require 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.
2010 Rule, 75 Fed. Reg. at 6885. As discussed above, see Part III.A.2, supra, the Court has
already concluded that this explanation “is reasonable and consistent with the regulation’s
language and history[,]” United Farm Workers, 697 F. Supp. 2d at 10 (quoting Trinity, 211 F.3d
at 627).
Moreover, to the extent that the plaintiff argues that the 2010 Rule otherwise represents a
policy departure from the 1987 Rule, see Pl.’s Mem. at 42–43, the Court rejects this argument.
As the defendants correctly point out, the Department “has never defined corresponding
employment to require that a domestic worker perform, or be able, willing[,] and qualified to
perform, all of the work included on the job order[,]” Defs.’ Mem. at 33; cf. 2010 Rule, 75 Fed.
Reg. at 6979 (in defining corresponding employment, making no reference to domestic workers’
qualifications); 2008 Rule, 73 Fed. Reg. at 77,230 (same); 1987 Rule, 52 Fed. Reg. at 20,527
(same), and has “consistently required that domestic workers who perform any work in the job
order be paid the H-2A wage rate for that time[,]” Defs.’ Mem. at 33–34; see, e.g., 2008 Rule, 73
Fed. Reg. at 77,195 (“[A]n employee who is hired to perform any work covered by the job order
during the contract period is entitled to all the material terms and conditions of the job order or
20 work contract for the corresponding employment, but not for any time spent in work not covered
by the job order or work contract.” (emphasis added)).
The Court concludes that, to the extent the 2010 Rule “depart[ed] from . . . official
[Department] policies,” Am. Wild Horse Pres. Campaign, 873 F.3d at 923, by removing the
2008 Rule’s allowance for “minor . . . and incidental” agricultural work by H-2A workers not
listed in the job order, 73 Fed. Reg. at 77,212, and requiring that domestic workers be paid the
adverse effect wage rage for “any agricultural work performed by the H-2A workers[,]” 2010
Rule, 75 Fed. Reg. at 6979 (emphasis added), the Department has sufficiently “acknowledge[d]
the change[s] and offer[ed] a reasoned explanation” for them, Am. Wild Horse Pres. Campaign,
873 F.3d at 923. Therefore, the Department’s policy changes are not arbitrary and capricious.
Accordingly, summary judgment is awarded to the defendants on Count One of the Complaint,
to the extent that Count One alleges that the Department’s policy changes in the 2010 Rule are
arbitrary and capricious.
2. Whether the Department’s Application of the 2010 Rule to the Plaintiff is Arbitrary and Capricious
The plaintiff next argues that the Department’s application of the 2010 Rule to the
plaintiff is arbitrary and capricious because the “[p]laintiff and other H-2A employers cannot
comply with the corresponding employment rule without violating other H-2A rules,” and “[a]
rule that is a ‘[c]atch[-]22’ by making it impossible for the regulated [ ] community [to] comply
with the program’s integrated regulatory framework is inherently unreasonable and thus arbitrary
and capricious under the APA.” Pl.’s Mem. at 41. The defendants respond that “[c]omplying
with all of the H-2A program’s requirements[] [ ] is entirely feasible and many employers
succeed in doing so every year.” Defs.’ Mem. at 35. They argue that the plaintiff’s purported
inability to comply with the 2010 Rule is based not on the way the 2010 Rule is drafted, but
21 rather on the plaintiff’s “business decision to approach its obligations under the H-2A program
by drafting a broad job order so that its H-2A workers could engage in any work necessary on
the nursery when they were not engaged in more skilled tasks.” Id. at 36.
Contrary to the plaintiff’s position, the Court concludes that complying with the terms of
the 2010 Rule is not “impossible[.]” Pl.’s Mem. at 41. The plaintiff admits that it purposefully
drafted a broad job order to allow the H-2A workers to perform unskilled agricultural work
during slow times. See AR 454 (Mr. Overdevest testifying that the catch-all provision in the job
orders was designed to “allow for [order pullers] to work in lesser[-]skilled tasks, when they[]
[were] not busy pulling orders or other higher[-]order tasks”). Thus, the plaintiff can easily
avoid noncompliance with the 2010 Rule by drafting a narrower job order. As the defendants
correctly point out,
an employer seeking foreign workers to perform certain highly skilled tasks that may not keep the worker busy at all times may choose to draft more narrowly tailored job orders, limited to those tasks and time periods that the employer cannot, in fact, find domestic workers to perform. Should the employer . . . find that it does not have sufficient hours to offer the worker to meet the three-quarters guarantee,[6] the employer still may satisfy its obligation under the regulations by paying the worker for those hours[.]
Defs.’ Mem. at 35–36. Accordingly, the Court does not find that the application of the 2010
Rule to the plaintiff is arbitrary and capricious. Thus, summary judgment is awarded to the
defendants on Count Two of the Complaint, to the extent that Count One alleges that the
defendants’ application of the 2010 Rule to the plaintiff is arbitrary and capricious.
And, because the Court concludes that the 2010 Rule is not arbitrary and capricious,
either as to the Department’s policy changes in the 2010 Rule or in its application of the 2010
6 The “three-fourths guarantee” provides that an H-2A “employer must guarantee to offer the [H-2A] worker employment for a total number of work hours equal to at least three-fourths of the workdays . . . specified in the work contract or in its extensions, if any.” 20 C.F.R. § 655.122(i)(l).
22 Rule to the plaintiff, summary judgment is awarded to the defendants on Count One of the
Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the 2010 Rule is a reasonable
application of 8 U.S.C. § 1188(a)(1). The Court also concludes that the 2010 Rule is not
arbitrary and capricious, either as to the Department’s policy changes in the 2010 Rule or in its
application of the 2010 Rule to the plaintiff. Accordingly, the Court denies the plaintiff’s motion
for summary judgment and grants the defendants’ cross-motion for summary judgment.
SO ORDERED this 15th day of April, 2020.7
REGGIE B. WALTON United States District Judge
7 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.