2 F.4th 977
D.C. Cir.2021Background
- Overdevest Nurseries (NJ) used the H-2A agricultural temporary-worker program and hired H-2A "order pullers" while also employing lower‑paid U.S. production workers.
- The DOL’s 2010 regulation defined “corresponding employment” to cover any work in the job order or any agricultural work performed by H-2A workers, expanding which U.S. workers must receive the adverse‑effect wage rate (AEWR).
- DOL investigated and concluded Overdevest violated the H-2A rules because H-2A workers sometimes performed general production work while U.S. production workers doing the same work were paid less.
- An ALJ and the DOL Administrative Review Board upheld the violation; the District Court granted summary judgment for the Department of Labor; Overdevest appealed.
- The D.C. Circuit reviewed de novo, applying Chevron for statutory interpretation and the APA arbitrary-and-capricious standard for rulemaking and enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1188(a)(1) unambiguously limits “similarly employed” to "able, willing, and qualified" U.S. workers (Chevron Step One) | Overdevest: statute unambiguously protects only qualified U.S. workers; canons of construction support narrow reading | DOL: statute ambiguous; Congress’ differing wording in subsections permits agency interpretation | Court: Not unambiguous; Chevron applies — Secretary may interpret subsection B |
| Whether the 2010 definition of “corresponding employment” is reasonable (Chevron Step Two) | Overdevest: rule irrationally expands protections, creates two classes of U.S. workers, and nullifies §1188(a)(1)(A)’s qualified‑worker requirement | DOL: rule reasonably protects U.S. workers doing the same work as H-2A workers and aligns with statutory purpose | Court: Regulation is reasonable and advances §1188’s aim to protect similarly employed U.S. workers |
| Whether the 2010 rulemaking was arbitrary or capricious (APA change-of-policy) | Overdevest: DOL failed adequately to explain departure from 2008 rule | DOL: explained why 2008 changes were reversed and justified the single modification to 1987 language | Court: DOL provided adequate reasons and complied with Fox Television requirements |
| Whether enforcement against Overdevest was arbitrary or capricious given potential conflicts with other H-2A rules | Overdevest: enforcement forced a Hobson’s choice between violating corresponding‑employment rule or other H-2A limits (scope, three‑quarters rule) | DOL: Overdevest had options (narrower job orders, pay idle hours, or pay domestic workers AEWR when doing same work) | Court: No inevitable conflict; enforcement was not arbitrary or capricious |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (framework for agency deference to reasonable statutory interpretations)
- Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) (explaining §1188’s dual purposes protecting U.S. workers)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (2009) (agency changing policy must acknowledge change and give reasoned explanation)
- Loughrin v. United States, 573 U.S. 351 (2014) (different statutory wording in adjacent provisions implies different meanings)
- Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) (Chevron deference boundaries and administrative interpretation principles)
- Heckler v. Cmty. Health Servs., 467 U.S. 51 (1984) (agency enforcement not arbitrary where regulated parties retain compliance options)