427 F.Supp.3d 101
D.D.C.2019Background
- Plaintiffs are agricultural labor contractors (ALCs) and industry groups (Everglades, Statewide, FFVA, Florida Citrus Mutual, NCAE) that use the H-2A program to hire foreign truck drivers/haulers for harvesting operations (notably sugarcane).
- DOL denied several 2019 H-2A temporary labor certification (TLC) applications for truck-driving/hauling jobs, issuing an October 23, 2019 FAQ reflecting a narrower interpretation of "agricultural labor or services."
- Everglades sought expedited administrative review; an ALJ affirmed the denial. Plaintiffs filed suit under the APA and moved for preliminary relief in federal court (TRO denied; PI granted).
- The court found plaintiffs relied on years of prior DOL certifications and that the FAQ-like shift produced unfair surprise and significant reliance interests.
- The court concluded plaintiffs showed likelihood of success that DOL’s narrow interpretation is not compelled, found irreparable economic and reputational harms, and granted a narrowly tailored preliminary injunction remanding a limited set of pre-October‑31, 2019 ALC applications for reevaluation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper scope of "agricultural labor or services" under INA/DOL regs | Hauling incident to harvesting (including hauling off‑farm) is "in connection with" harvesting and fits the statutory/regulatory definition; mixed duties should be allowed so long as agricultural work predominates | DOL: hauling off the farm (and any inclusion of non‑agricultural duties) disqualifies a job from H‑2A; H‑2A jobs must consist solely of agricultural labor or services | Court: DOL's rigid rule is not compelled; hauling on the farm can be agricultural; mixed duties can be acceptable if agricultural work predominates; remand for reevaluation under that understanding |
| Deference to DOL's post‑hoc FAQ/interpretation (Auer/Chevron) | DOL's new interpretation announced via FAQ/amicus/adjudication is not entitled to Auer deference because of lack of notice and long reliance on prior approvals | DOL: its interpretation of its regulation is entitled to deference | Court: declined Auer/Chevron deference here due to unfair surprise and reliance; gave only persuasive weight (Mead/Christopher approach) |
| Irreparable harm from denial of TLCs | Denial causes immediate, unrecoverable economic loss (threatens business survival) and severe reputational harm vis‑à‑vis growers | Economic losses are recoverable and thus not irreparable | Court: plaintiffs showed irreparable harm — losses are business‑threatening and unrecoverable against the government, and reputational harm is likely and irreparable |
| Balance of equities & public interest | Narrow, temporary relief (reassessment of a small set of applications) protects reliance interests, growers, and small businesses | Injunction interferes with immigration/admission authority and agency discretion | Court: equities and public interest favor plaintiffs; granted narrowly tailored preliminary injunction remanding specific applications |
Key Cases Cited
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (refused Auer deference where agency announced new interpretation after long industry reliance; warned against unfair surprise)
- United States v. Mead Corp., 533 U.S. 218 (2001) (agency interpretations merit deference only to the extent they are persuasive)
- Auer v. Robbins, 519 U.S. 452 (1997) (agency interpretations of its own ambiguous regulations can receive deference under some circumstances)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarified and limited Auer deference; stressed requirements for deferring to agency interpretations)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard requires showing of likelihood of success, irreparable harm, balance of equities, and public interest)
- Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019) (discussed preliminary injunction factors and government defendant context)
- Nken v. Holder, 556 U.S. 418 (2009) (equities and public‑interest factors merge when the government is the opposing party)
- N.L.R.B. v. Kelly Bros. Nurseries, 341 F.2d 433 (2d Cir. 1965) (cited for the proposition that different statutory schemes may warrant different treatments of mixed agricultural/nonagricultural work)