USA Farm Labor, Inc. v. Vincent Micone, III

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 24, 2025
• Docket: 23-2108
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2108

USA FARM LABOR, INC.; JCP FARMS, LLC; LAZY BS BAR, INC.; B&B AGRI SALES, LLC; HOGGARD FARMS; MASCHING AGRICULTURE, LLC; HUTTO GRAIN; KD FARM & RANCH; CIRCLE D FARMS; TRIPLE T FARMS, INC.; BEBB FARMS; JAMERSON FARMS; BRUCE YOUNG FARMS; SK FARMS INC.; KAUP PRODUCE, INC.; COTEAU TILING, INC.; HAALAND GRAIN FARMS; LINCOLN COUNTY FEED YARD LLC; CDC, INC.; GRAND FARMING ENTERPRISES, INC.; FOUR R'S RANCH LLC; J D LAYMAN FARMS, INC.; MOLITOR BROTHERS FARM; WRIGHT FARMS OF BUTLER CO INC.

Plaintiffs - Appellants,

v.

VINCE MICONE, Acting Secretary of Labor, U.S. Department of Labor; BRENT PARTON, Acting Assistant Secretary of Labor Employment and Training Administration, U.S. Department of Labor; BRIAN PASTERNAK, Administrator, Office of Foreign Labor Certification, U.S. Department of Labor

Defendants - Appellees.

------------------------------

FARMWORKER JUSTICE; JAMES SIMPSON; STEPHANUS DE KLERK

Amici Supporting Appellees

Appeal from the United States District Court for the Western District of North Carolina at Asheville. Martin K. Reidinger, Chief District Judge. (1:23-cv-00096-MR-WCM)

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Argued: September 25, 2024 Decided: February 24, 2025

Before KING, BENJAMIN and BERNER, Circuit Judges.

Affirmed by unpublished opinion. Judge Berner wrote the opinion, in which Judge King and Judge Benjamin joined.

ARGUED: Wendel Hall, III, HALL LAW OFFICE, PLLC, Washington, D.C., for Appellants. Alexandra Bridget McTague, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Steven A. Bader, Raleigh, North Carolina, Patrick H. Flanagan, CRANFILL SUMNER, LLP, Charlotte, North Carolina; Mark A. Stevens, CLARK HILL PLC, Washington, D.C., for Appellants. Brian M. Boynton, Principal Deputy Assistant Attorney General, William C. Peachey, Director, Glenn M. Girdharry, Assistant Director, Aaron S. Goldsmith, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Gregory S. Schell, SOUTHERN MIGRANT LEGAL SERVICES, Nashville, Tennessee; Douglas L. Stevick, TEXAS RIOGRANDE LEGAL AID, INC., Weslaco, Texas, for Amicus James Simpson. Michael T. Kirkpatrick, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., for Amici Farmworker Justice, James Simpson, and Stephanus De Klerk. Peter Murray, SOUTHERN MINNESOTA REGIONAL LEGAL SERVICES, St. Paul, Minnesota, for Amicus Stephanus De Klerk.

Unpublished opinions are not binding precedent in this circuit.

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BERNER, Circuit Judge

The H-2A visa program allows foreign farmworkers to obtain temporary

employment in the United States. The Department of Labor (DOL) is required by statute

to ensure that agricultural employers’ use of this program does not depress the wages of

domestic workers. See 8 U.S.C. §§ 1101(a)(15)(H)(ii)(A), 1188(a)(1). To fulfill this

requirement, the DOL sets “adverse effect wage rates” (AEWRs)—hourly rates below

which employers cannot pay H-2A workers or their domestic counterparts.

20 C.F.R. §§ 655.120(a), 655.122(l). In 2023, the DOL promulgated a rule (the Rule)

altering the methodology it uses to set AEWRs. 88 Fed. Reg. 12760 (Feb. 28, 2023). Unlike

the DOL’s previous methodology, which established a single AEWR for a given geographic

region, the Rule takes a bifurcated approach that sets AEWRs by occupation and by region.

The DOL expects wages of workers who perform specialized jobs such as logging and

truck driving will increase under the Rule.

A group of farm owners and an H-2A filing agent (Employers) filed this lawsuit to

block the DOL from enforcing the Rule. Employers allege that the Rule is arbitrary and

capricious, in violation of the Administrative Procedure Act. 5 U.S.C. § 706(2)(A).

Specifically, Employers argue that the DOL failed to fulfill its alleged statutory obligations

to consider the Rule’s impact on (1) farm owners’ costs, and (2) illegal immigration.

Employers moved for a preliminary injunction and a temporary restraining order. The

district court denied Employers’ motions. See USA Farm Labor, Inc. v. Su, 694 F. Supp. 3d

693, 715 (W.D.N.C. 2023).

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We conclude that the district court did not abuse its discretion in denying the

preliminary injunction. A party seeking a preliminary injunction must satisfy each of the

four factors articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7,

20 (2008). Because the district court reasonably concluded that the balance of the equities

and the public interest did not tip in favor of an injunction, we affirm.

I. Background

In 2023, the DOL overhauled its methodology for calculating AEWRs. See

88 Fed. Reg. 12760. AEWRs establish the minimum hourly wage rates that U.S. employers

must pay H-2A farmworkers and similarly employed domestic workers.

20 C.F.R. §§ 655.120(a), 655.122(l). “Employers seeking H-2A certification are required

to pay the higher of the [AEWR], the prevailing wage, or the legal minimum wage.”

Mendoza v. Perez, 754 F.3d 1002, 1008 (D.C. Cir. 2014) (citing 20 C.F.R. § 655.120(a)).

In setting AEWRs, the DOL must ensure that employers’ access to foreign workers under

the H-2A program does not depress the wages of U.S. workers. 8 U.S.C. § 1188(a)(1).

The DOL’s express statutory obligations have not changed since the 1952 inception

of the H-2 program, which ultimately split into the H-2A program for agricultural workers

and H-2B program for non-agricultural workers. Congress created the H-2 program by

enacting the Immigration and Nationality Act (INA). See Pub. L. No. 82-414, § 212(a)(14),

66 Stat. 163, 183 (1952). The INA, as originally enacted, allowed U.S. employers to hire

foreign workers to fill temporary jobs when domestic workers were unavailable. It tasked

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the DOL with helping administer the program: employers could not hire foreign workers

under the H-2 program unless the Secretary of Labor certified that (1) there were not

“sufficient workers in the United States who [were] able, willing, and qualified” to perform

the desired work; and (2) the employment of foreign workers would not “adversely affect

the wages and working conditions of the workers in the United States similarly employed.”

Id. To fulfill this statutory directive to protect U.S. workers’ wages, the DOL in 1963 began

setting AEWRs. See 54 Fed. Reg. 28037, 28040 (July 5, 1989).

Congress’s 1986 passage of the Immigration Reform and Control Act (IRCA)

amended the INA but did not meaningfully change the DOL’s statutory obligations in

setting AEWRs. See AFL-CIO v. Brock, 835 F.2d 912, 918 (D.C. Cir. 1987) (“Congress

made absolutely no alteration to the statutory mandate that underlies AEWRs.”). Like the

INA, the IRCA requires only that the DOL certify (1) that there are not sufficient domestic

“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) that “the

employment of [foreign workers] 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). The IRCA, by its terms, does not require the DOL to consider any

particular factors in setting AEWRs. “Congress, indeed, has never paid any attention to the

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method or policy of calculating AEWRs . . . . [C]alculating AEWRs has been left entirely

to the Department’s discretion.” AFL-CIO, 835 F.2d at 915.

Though the DOL enjoys broad discretion in setting AEWRs, it must adequately

explain the rationale behind any new methodological choice. “When an agency’s decision

constitutes a change in position, the court must be satisfied that such a change in course

was made as a genuine exercise of the agency’s judgment.” Philip Morris USA, Inc. v.

Vilsack, 736 F.3d 284, 290 (4th Cir. 2013). “The agency must show that there are good

reasons for [a] new policy.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515

(2009).

The DOL has altered its methodology for calculating AEWRs several times. “The

1987 [AEWR] regulations embodied one set of priorities. The 2008 regulations embodied

another and very different pro-employer set of priorities. The 2009 [s]uspension and 2010

regulations then signaled a return, in the main, to the earlier 1987 emphasis on worker wage

protection.” N.C. Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 771–72 (4th

Cir. 2012) (Wilkinson, J., concurring) (internal citations omitted).

In 2023, the DOL adopted the Rule because it believed its former AEWR

methodology was failing to adequately protect U.S. workers’ wages. 88 Fed. Reg. 12787.

In particular, the DOL was concerned that employers were taking advantage of the H-2A

program to hire specialized workers at artificially low wage rates. See 88 Fed. Reg. 12761,

12783; Farmworker Justice Amicus Br. 6–7. Because the DOL’s previous methodology set

a single AEWR for all workers in a geographic region, regardless of occupation, employers

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used the H-2A program to hire specialized workers—including truck drivers, mechanics,

supervisors, loggers, and construction workers—at salaries reflective of the prevailing

wage rates for less-specialized farm work like crop picking. See Farmworker Justice

Amicus Br. 6–7. The DOL believed this loophole threatened the wages of U.S. workers.

See 88 Fed. Reg. 12770–72.

The Rule made four changes, two of which are relevant to this case. First, under the

Rule, the DOL will rely on a different source of wage data to calculate separate AEWRs

for specialized occupations. 88 Fed. Reg. 12762. Under the old methodology, the DOL set

one AEWR for each geographic region based on the Farm Labor Survey (FLS) conducted

by the U.S. Department of Agriculture. 88 Fed. Reg. 12761–62. The FLS does not,

however, collect wage information for non-farm jobs, such as truck driving and

construction. 88 Fed. Reg. 12761. Under the Rule, the DOL will continue using FLS data

to set a single regional AEWR for all H-2A jobs assigned to a Standard Occupational

Classification (SOC) code that falls into the “field and livestock workers (combined)”

category. 88 Fed. Reg. 12761. For H-2A jobs assigned SOC codes outside of that category,

however, the DOL will calculate separate AEWRs using data from the Occupational

Employment and Wage Statistics (OEWS) survey published by the Bureau of Labor

Statistics. 88 Fed. Reg. 12762, 12764.

The DOL does not expect this change to impact most employers. According to the

DOL, the “vast majority” of H-2A jobs are properly classified under the six SOC codes

that comprise the “field and livestock workers (combined)” category. 88 Fed. Reg. 12781.

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The DOL will continue calculating AEWRs for those jobs based on the FLS, the same

methodology it employed prior to issuing the Rule. 88 Fed. Reg. 12775. The small minority

of H-2A jobs that fall outside of the “field and livestock workers (combined)” category are

expected to see wage increases because the OEWS survey, upon which their AEWRs will

be based, consistently reports higher wages than the FLS survey. 88 Fed. Reg. 12771–72,

12778.

The Rule’s second change, which relates to the first, instructs the individuals

reviewing H-2A applications to assign multiple SOC codes to jobs that do not fit into a

single SOC code. 88 Fed. Reg. at 12778–79. These are jobs involving a diverse array of

distinct duties. The Rule provides that workers performing jobs classified under multiple

SOC codes must be paid the AEWR corresponding to the highest applicable SOC code. 88

Fed. Reg. 12778–79. If a job description includes both apple picking and semi-truck

driving, for example, the position will be assigned two SOC codes, and the worker must

be paid the AEWR for the higher code—in this case, truck driving. See 88 Fed. Reg. 12783.

A job will be assigned multiple SOC codes only if no SOC code is broad enough to

encompass the various duties performed in a job. 88 Fed. Reg. 12780–81. Because

individual SOC codes cover a wide range of duties, the DOL anticipates that very few jobs

will be assigned multiple SOC codes. 88 Fed. Reg. 12776–77, 12785.

The DOL adopted the Rule despite certain groups’ vocal opposition to these

changes. In response to the DOL’s 2021 publication of its notice of proposed rulemaking,

trade associations and farm owners submitted comments arguing that the Rule would

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impose unreasonable costs on employers. 88 Fed. Reg. 12765. Commenters asserted that

the DOL’s published cost estimate was inadequate, as it failed to fully account for the

increased costs employers would face. Further, some commenters—including one of the

plaintiffs in this case—alleged that these increased wage costs would compel farm owners

to avoid the H-2A program entirely and instead hire undocumented workers. See 88 Fed.

Reg. 12765; Appellants’ Opening Br. 24–25.

Employers filed this lawsuit to block the DOL from enforcing the Rule. The Rule

went into effect in March 2023. Employers moved for a preliminary injunction two months

later. In August 2023, the DOL filed a motion to dismiss for lack of standing. Shortly

thereafter, Employers moved for a temporary restraining order. The district court denied

all three motions in September 2023. USA Farm Labor, 694 F. Supp. 3d at 707–15. The

district court found that Employers possessed standing but failed to satisfy any of the four

preliminary injunction requirements. Id. Employers appeal only the denial of the

preliminary injunction, not the denial of the temporary restraining order. This court has

jurisdiction to review an order denying a preliminary injunction pursuant to

28 U.S.C. § 1292(a)(1).

II. Standard of Review

We review the district court’s denial of a preliminary injunction for abuse of

discretion. Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197, 213 (4th

Cir. 2019). “[A]buse of discretion is a deferential standard.” Id. Though a “clear error in

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factual findings or a mistake of law is grounds for reversal,” we may not reverse “so long

as ‘the district court’s account of the evidence is plausible in light of the record viewed in

its entirety.’” Id. at 213 (quoting Walton v. Johnson, 440 F.3d 160, 173 (4th Cir. 2006) (en

banc)). If the district court “applied a correct preliminary injunction standard, made no

clearly erroneous findings of material fact, and demonstrated a firm grasp of the legal

principles pertinent to the underlying dispute,” no abuse of discretion occurred. Centro

Tepeyac v. Montgomery Cnty., 722 F.3d 184, 192 (4th Cir. 2013) (en banc).

III. Analysis

To obtain a preliminary injunction, a movant must establish that: (1) they are likely

to succeed on the merits of their claims; (2) they are likely to suffer irreparable harm in the

absence of preliminary relief; (3) the balance of the equities tips in their favor; and (4) an

injunction would be in the public interest. Winter, 555 U.S. at 20. When the government is

the nonmovant, the last two factors merge. Miranda v. Garland, 34 F.4th 338, 365 (4th Cir.

2022) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). The movant must satisfy all of

the Winter factors to prevail. Henderson v. Bluefield Hosp. Co., LLC, 902 F.3d 432, 439

(4th Cir. 2018) (“Winter made clear that each of these [ ] factors must be satisfied to obtain

preliminary injunctive relief.” (emphasis in original)).

The district court did not abuse its discretion by concluding that the balance of the

equities and the public interest did not favor an injunction. Because Employers’ failure on

any Winter factor is fatal, we decide this case without analyzing the remaining factors.

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As the district court recognized, enjoining the Rule would harm H-2A workers,

domestic workers, and certain employers. The district court explained: “The requested

injunction could cause at least as much harm to these third-party workers, who would be

deprived of wages that they are entitled to under the [ ] Rule, as a denial would harm the

Plaintiffs, who would potentially avoid having to pay these wages.” USA Farm Labor, 694

F. Supp. at 714.

We agree with the district court’s reasoning. Foreign workers who entered the

United States under H-2A visas did so with an expectation that the Rule would determine

their wages. Without those expected wages, some may feel compelled to depart the country

or seek other employment. Enjoining the rule “would inject a degree of uncertainty into the

H-2A program” that could injure some employers. Id. Even if employers promised to

maintain H-2A workers’ existing wage rates, workers might view such promises as less

reliable than the guarantee of an AEWR set by the Rule. The inability to retain a full

workforce would inflict hardship on farm owners.

Domestic workers have similar reliance interests. AEWRs set the hourly minimum

wage rates for both H-2A workers and their domestic counterparts. See

20 C.F.R. §§ 655.120(a)(1), 655.122(l). If the Rule has indeed resulted in higher AEWRs

for certain domestic farm workers, as both parties projected it would, those workers are

among the Rule’s direct beneficiaries. Some, no doubt, have taken certain farm jobs in part

because of the promise of these higher wage rates. Domestic workers in specialized

occupations like logging and construction are also among the Rule’s beneficiaries.

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According to the DOL and amicus, the Rule was intended to close the loophole that allowed

employers to hire H-2A workers to perform these jobs at artificially low wages. 88 Fed.

Reg. 12761; Farmworker Justice Amicus Br. 7–8. Domestic workers in specialized fields

and the businesses that employ them benefit from the Rule because they are no longer

forced to compete with companies that underpay workers by taking advantage of regulatory

gaps.

Employers do not meaningfully respond to the district court’s analysis of the balance

of equities and the public interest. Instead, they simply assert that “the balance of equities

and the public interest favor an injunction” because there is “no public interest in

perpetuating an unlawful government program.” Appellants’ Opening Br. 37. This

conclusory argument improperly collapses the first Winter factor—likelihood of success

on the merits—with the merged balance of equities and public interest factor. Courts

“considering whether to impose preliminary injunctions must separately consider each

Winter factor.” Pashby v Delia, 709 F.3d 307, 321 (4th Cir. 2013). Employers’ circular

reasoning—that the program is against the public interest because it is unlawful—is

nothing more than a restatement of their likelihood of success argument. Under Employers’

logic, the merged final Winter factor would be superfluous in any lawsuit seeking to enjoin

a government program. That is not the proper test.

IV. Conclusion

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The district court reasonably concluded that the balance of the equities and the

public interest did not tip in favor of an injunction. The denial of Employers’ motion to

enjoin the Rule was not an abuse of discretion. Though we need not address the remaining

Winter factors,1 nothing in this opinion should be read to cast doubt on the other parts of

the district court’s analysis.

AFFIRMED

1 Where a district court denies injunctive relief based on its erroneous analysis of a single Winter factor, a court of appeals “must perform [its] own assessment of the factors not addressed by the district court.” In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 171 (4th Cir. 2019); see also Vitkus v. Blinken, 79 F.4th 352, 361 (4th Cir. 2023). Here, the district court analyzed each Winter factor. Because the district court did not abuse its discretion in concluding that the merged balance of equities and public interest factor did not favor an injunction, we need not evaluate the remaining factors. See Winter, 555 U.S. at 23-24, 31. 13