Castellanos-Contreras v. Decatur Hotels, LLC

thrоugh extrinsic testi- ambiguity an CASTELLANOS-CONTRERAS; Daniel exists. See In mony where none otherwise Deheza-Ortega; Rodol Oscar Ricardo Moreover, at 440. a 304 F.3d Liljeberg, re Valdez-Baez, Plaintiffs- fo Antonio an re- is not absurd permanent discount Appellees, terms of hold that the therefore sult. We is, unambiguous; compromise v. permanent to a parties agreed HOTELS, LLC; F. Patrick DECATUR Because the legal fees. 25% discount Quinn, III, Defendants-Appellants. are clear and compromise of the terms No. 07-30942. looking erred in explicit, the district court in- to determine the to extrinsic evidence Appeals, States Court of United regard with to the parties tent of the Fifth Circuit. meaning of the terms. 1, 2010.

Oct. CONCLUSION court did not find that the district

We summary judgment because denying

err fact existed as genuine issue of material authori- apparent

to whether Lemmon had Firm to enter

ty agent of the Law with Mariner. See compromise

into a Indus. Co. v. Zenith Ra-

Matsushita Elec. 574, 586, 106 Corp., 475 U.S. S.Ct.

dio (1986). hold as a 89 L.Ed.2d 538 We Law that Mariner and the

matter of law compromise pur-

Firm into a valid entered March 24 Email and the

suant of the com-

August 9 Email and the terms unambiguously provided per-

promise Therefore, we find

manent 25% discount. considering court did err in

the district

extrinsic evidence to determine the intent interpreting and in parties Because compromise. used in the

words legal favor on the

we hold Mariner’s attor-

fees we do not reach the question, judgment of the

neys’ question. fees court is and VACAT-

district REVERSED

ED and the case is REMANDED for en- in favor of Mariner.

try judgment Kovach, Gretna, LA, for

Ellen Shirer De~ fendants-Appellants. Margaret

Ann (argued), Pointer John Eugene Thompson, Phillips, Fisher & L.L.P., Atlanta, GA, Jr., Pyburn, Keith M. Scott, Timothy Hugh Phillips, Fisher & L.L.P., Orleans, LA, New for Amici Curi- Plantation, ae: Amelia Island Am. Hotel & Ass’n, Club, Basin Harbor Lodging Beaver Ctr., Run Resort & Conference Broadmoor, Canyon Best Grand Western Inn, Resort, Cheyenne Mountain Squire Ass’n, Vegetable Georgia Florida Fruit & Ass’n, Fruit Vegetable & Homestead Re- sort, Resorts, Hyatt Hotels & Kiawah Is- Resort, Hospitality land Golf Mandoki Maryland Nursery Group, Landscape & Ass’n, Solutions, Inc., Mid-Atlantic Nat. Agricultural Employers, Council Ocean Club, The Sagamore, Reef Stein Erickson Agricultural Lodge Virginia Employ- ers Ass’n. Ruckelshaus, K. Nat. Em-

Catherine Project, City, Law New York for ployment Justice, Amici Curiae: Interfaith Worker Racial New Orleans Workers’ Ctr. for Jus- Project. Nat. Employment tice and Law (argued), Dept, Diane Arlene Heim Sol., Labor, DC, Washington, Office of Labor, Secretary Amicus Curiae. Beardall, Jr., Atty., H. William Sr. (argued), Rosenbaum Jennifer Jean Ctr., Austin, TX, Equal Equal Justice Ctr. for Racial Jus- New Orleans Workers’ Ctr., Amicus Curiae. Justice tice, Washington, L. Legal Dept., Trade Institute, Orleans, LA, LA New Justice Ctr., Bauer, Poverty Law

Mary Southern Project, Montgomery,

Immigrant Justice Tuddenham,

AL, Law Office of Edward J. Tuddenham, DC, Washington, Edward JONES, KING, Judge, Before Chief Plaintiffs-Appellees. JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, Ehret, Counsel, Joseph Lit. Leslie W. PRADO, OWEN, ELROD, Marie SOUTHWICK (argued), Nicholas Mole Suzanne LA, HAYNES, Frilot, L.L.C., Orleans, Judges.1 Circuit Risey, New participate. Judges and Clement stood recused and did not Wiener HAYNES, known Judge, joined by Circuit had business as Accent Personnel JONES, E. Judge, Serviсes, EDITH H. Chief navigate to use her service to JOLLY, SMITH, E. GRADY JERRY regulations necessary to allow Decatur to GARZA, BENAVIDES, EMILIO M. legally hire workers from other countries. SOUTHWICK, H. OWEN and LESLIE Pickering also had a business known as VP full; KING, joined by Judges, Circuit provided Consultants that data about em- DAVIS, W. EUGENE CARL E. ployers seeking foreign workers to various PRADO, Judges, STEWART and Circuit foreign companies. recruitment only: III.A. Section allege Workers these companies charged provide them to group present A of hotel workers in this infor- (“the country H-2B companies seeking under visas2 Work mation about U.S. for- ers”) sued Decatur Hotels Patrick eign procedures workers and the for ob- “Decatur”) Quinn (collectively alleging vio jobs taining securing necessary such lations of the Fair Labor Standards Act visas. (“FLSA”). Decatur moved to dismiss and consist of one Workers hundred summary judgment, and the Workers people3 from various Latin American coun- partial summary judgment. moved for In tries who came to H-2B New Orleans on order, a single granted the district court visas to work at Decatur’s hotels house- part the Workers’ motion in denied keeping and other service roles. The Thereafter, Decatur’s motions. the court allege they required Workers were to pay interlocutory ap certified that order for (1) placement charged by fees various re- peal appeal, panel to this court. On a (2) companies, cruitment their own visa- this court reversed the district court and fees, application all judgment rendered for Decatur. See Cas expenses necessary to relocate to the Unit- LLC, tellanos-Contreras v. Decatur Hotels ed States. The do not parties dispute that (5th Cir.), 559 F.3d 332 withdrawn and Decatur did not reimburse the Workers (5th Cir.2009). replaced by 576 F.3d 274 expenses. parties for these also do En banc granted, vacating review was thus not dispute paid that Decatur its own H- panel opinion. Castellanos-Contreras application 2B fees and the recruitment (5th LLC,

v. Decatur Hotels 601 F.3d 621 Pickering fees and Accent charged it. Cir.2010). We now REVERSE the dis All parties agree that Decatur trict denying court’s order Decatur’s mo than wage Workers more the minimum entry tion and REMAND for of judgment should the court find Decаtur was not appellants. in favor of

required to disputed reimburse the ex- I. Facts and Background Procedural However, penses. argue Workers requires federal law Decatur to reimburse In the wake of the devastation wrought fees, expenses, them for their travel visa upon city of New Hurri- Orleans Katrina, and recruitment payments during cane Decatur found itself unable work, which, failing to hire a first week of sufficient number of American workers properties. to staff its hotel It sums must be deducted from the first by Virginia was solicited Pickering, calculating who week’s before whether a 2. The term "H-2B Ninety-sev- visa” refers to visa au- situated H-2B Decatur workers. 1101(a)(15)(H)(ii)(b). thorized 8 U.S.C. en such workers filed notices of consent to participate in the lawsuit. Originally, three workers filed suit seeking represent similarly themselves and FLSA, II. Review under was Standard of wage, Contending that these deductions paid. jurisdic The court reviews its own minimum wage, pay took them below INS, tion de novo. Nehme v. 252 F.3d sued Decatur the Workers (5th Cir.2001). 415, 420 FLSA. The court reviews certified or court, Decatur moved for

In the district ders de novo. Tanks v. Lockheed Martin Cir.2005). (5th contending that it was summary judgment, Corp., 417 F.3d (or 1292(b), grant any oth- Under 28 U.S.C. required under the FLSA summary judgment denial of is reviewed law) travel, to reimburse the applicable er novo, applying de standard same visa, question. and recruitment court, the district First Am. Bank v. First moved for part, For their Workers Co., Transp. Am. Title Ins. 585 F.3d summary judgment contending (5th Cir.2009), only 836-37 but review ex disputed to deduct was law, controlling tends to questions part as of the expenses Tanks, Further, 417 at 461. F.3d calculation, that, calculation and inquiry summary court’s “is limited In a Decatur had violated FLSA. judgment record before the trial court.” order, granted the district court single Wellons, Inc., v. P’ship Martco Ltd. 588 in and denied Deca- part motion Workers’ (5th Cir.2009). 864, F.3d 871 The court entirely. motion The district court tur’s in light must view the evidence most only remaining issues were held that the non-moving party, favorable to the Matsu strictly calculations of mathematical shita Elec. v. Indus. Co. Zenith Radio and, actually paid yield should that 574, 1348, Corp., 475 106 S.Ct. 89 587, liability, amount of dam- finding a (1986), L.Ed.2d 538 and the movant has Thereafter, it certified this or- ages due. showing the burden of this court that sum 1292(b) interloc- der undеr 28 U.S.C. mary judgment appropriate, Celotex utory appeal, panel and a motions of this 317, 323, Corp. v. 477 U.S. 106 Catrett, appeal. granted court leave (1986). 2548, 91 265 S.Ct. L.Ed.2d Sum mary judgment appropriate where the agree parties and the en banc court competent summary judgment evidence applies that the FLSA to the Workers genuine demonstrates that there is no is However, the court. the situation before moving party sue of material fact and the parties disagree ques- on the threshold judgment is entitled to as a matter of law. jurisdiction tion of whether this court has Dallas, v. City Bolton F.3d and, appeal unsurprisingly, to consider this (5th Cir.2006); see Fed. R. Civ. P. A 56(c). question of whether the dis- on merits genuine issue of material fact if a exists puted expenses can or should be deducted jury reasonable a could enter verdict part panel calculation. A FLSA non-moving v. party. Anderson Liber opted court to utilize its discretion this Inc., 242, 252, ty Lobby, 477 U.S. 106 S.Ct. jurisdiction to exercise this case and (1986). 2505, 91 L.Ed.2d ultimately found that Decatur was correct granting on the merits. After en banc III. Discussion reargument of the rehearing following A. Jurisdiction case, opinion, again we now issue this find- jurisdiction reversing the district ing jurisdiction question presented court the merits. the en banc court breaks down into two on (1) jurisdiction provides recovery the law for their appellate is there parts: any question given other than whether on the facts of a case. In depending reach to the Workers generally applies FLSA deciding that there were “fact questions” (i.e., to hear the power do we have the issues, on these the district court necessar- so, and, presents), if issues Decatur ily decided could some- hear exercise our discretion to should we reimbursable, times be at least under cer- question in appeal? We address each this If, law, they tain facts. as matter of turn. not, the district court’s order would be incorrect. Jurisdiction Appellate 1292(b), order, Under it is the contend that the district The Workers question, appealable. not the that is Yam only question certified the of wheth- Calhoun, Corp. aha Motor v. 516 U.S. generally applies er the FLSA (1996); 116 S.Ct. 133 L.Ed.2d 578 ie., Workers, were the Workers entitled to Corp., see Melder v. Allstate 404 F.3d turn, wage? they the minimum In (5th Cir.2005) (raising argument argue question is not one “as to district ‍‌‌‌‌​‌​​​​‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌​​‌‌‌‍court deemed sufficient to render ground which there is substantial order); “fairly included” the certified and, thus, opinion” difference of con- Sons, Inc., Brabham v. A.G. Edwards & jurisdiction tend that we lack at all. As a (5th Cir.2004) n. 2 F.3d that, position, they fall back contend (reaching grounds alternative addressed in most, jurisdiction only we have decide the certified order but omitted from the question ques- but not the this threshold questions); list of certified Reserve Moor requires tion of whether federal law reim- Line, ing Inc. v. Barge Am. Commercial expenses question. bursement of the LLC, (5th 1069, 251 F.3d 1070 n. 4 Cir. jurisdiction that prop- Decatur contends is 2001) (same); see also Schlumberger necessarily er because the order certified 1553, Wiley, Techs. v. 113 F.3d 1557 n. 6 includes consideration of the “merits” (11th Cir.1997) that, (holding if an question disputed expenses of whether the issue is chargeable against are ever wages paid. contained within the order from which the agree taken, We with Decatur.4 interlocutory appeal is the district certify court’s refusal to that issue does granted part The district court appeals’ jurisdiction not defeat court of summary judgment Workers’ motion for issue). If judge over that the district summary and denied Decatur’s motion for provided, makes certification as “[t]he judgment single order that is the Appeals may permit Court of ... ... an subject interlocutory ap- of the certified appeal to be taken from such order.” 28 peal. grant In order to the Workers’ mo- 1292(b) added). (emphasis U.S.C. Sec deny motion, tion and Decatur’s the dis- 1292(b) jurisdiction tion limits this court’s trict court had to examine whether the interlocutory appeals reviewing over expenses question were of the kind for “questions that are material to the lower which reimbursement —to the extent nec- court’s certified order.” v. Adkinson Int’l essary stay at or above minimum (5th Co., 208, 212 4 Harvester 975 F.2d n. wage required by the law. The dis- —is Cir.1992); trict court itself stated that it see Ducre v. Executive considered Officers ie., issues,” Marine, Inc., these matters to be “factual Halter 752 F.2d 983 Moreover, purely prudential. the Workers at oral thе court conceded remains before argument jurisdictional question that the (5th Cir.1985) (“Thus, 216(b) (2010). appellate employee. n. 16 See 29 U.S.C. all may address issues material to Thus, predicate finding disput- the order and is not limited to consider expenses ed are reimbursable costs that ‘controlling question.’ ation of This is owes the Workers is critical especially so when the issues outside the and material to the district court’s conclu- ‘controlling question’ provide grounds for However, sion that there are fact issues. (citations reversal of the entire order.” question threshold of whether such omitted)); see also J.S. ex rel. N.S. v. are, expenses category, as a reimbursable Schs., (2nd Attica Cent. 386 F.3d legal question is a properly can be the Cir.2004) (“We necessarily are not limited subject of interlocutory review. We con- issue, to the certified as we have the dis appellate jurisdiction clude that we have any aspect cretion to consider of the order question travel, review the of whether the taken.”); appeal from which the McFar visa, and in question Servs., LLC, lin v. Conseco 381 F.3d to be part reimbursed as (11th Cir.2004) (“[W]e 1255-56 have the the minimum calculation under the order, power ‘review entire either to FLSA. question consider different from the one controlling certified as or to decide the 2. Discretion despite case the lack of identified con Yamaha, trolling question.’” (quoting The conclusion that we have power 619)); Pinney S.Ct. Dock to consider questions these does not end Transp. & Co. v. Penn Corp., Cent. jurisdictional our analysis. Interlocutory (6th (“[E]ven Cir.) F.2d those 1292(b) review is not mandatory; properly subject issues not certified are rather, Thus, it is discretionary. we must discretionary power our if review other consider whether we should address these necessary wise to the disposition of the questions stage. at this denied, case.”), cert. 488 U.S. say Suffice it to question this is a (1988). 196, 102 S.Ct. L.Ed.2d 166 jurists and, about which reasonable can— The district court’s conclusion that in court, the case of this A do—debate. were fact upon there issues was based its panel motions of this court permitted De- that finding expenses question in could pursue appeal, catur to origi- and the If be reimbursable. it is true that panel nal exercised its discretion to hear reimbursable, expenses liability are then appeal. might Others on our court depends upon the Workers calculating have had a they different take had been on paid what each disputed Worker for the panel. either But we are longer no at the expenses, subtracting figure that case; instead, beginning of this we are what each paid Worker was after his/her very along. far Considerable time has week, first and dividing remaining passed, panel opinions issued, two have amount the hours If worked. parties and the have briefed the merits wage, amount is above the minimum no three times: to the original panel, in con- liability generally attaches. See 29 C.F.R. rehearing petitions, nection with the in (2010); § 531.36 see Arriaga also v. Fla. briefing merits to the en banc court. Ad- Farms, L.L.C., Pac. 305 F.3d n. ditionally, subject this case has been the (11th Cir.2002) an (providing example of two oral arguments. After so much calculation). time an FLSA minimum wage If expended and effort has been by both the it falls below the minimum wage, then parties whole, damages are based at and the court as a part least on this the dis- pay” calculation of the “back cretionary owed to the decision much now becomes dif- (2010) non-immigrant appli- visa (requiring majority of the court ferent, here, cants, to submit such as the Workers in favor be resolved agrees should visas). they apply for processing fees when hearing the merits. own that Decatur undisputed It is Merits B. The process— employer side of fees for the H-2B workers. See to hire application merits, address we Turning then 103.7(b)(1), 103.7(a), §§ C.F.R. claim category for which Workers each (2010) 214.2(h)(2)(i)(A) collec- (requiring, (1) inbound required: reimbursement certain tively, employer that a submit (3) (2) expenses; visa expenses; travel an H-2B filing fees to become forms expenses. sponsor). visa Expenses Travel and Visa Inbound this lack of law would seem While expressly states regulation No statute the travel and to end the matter as to both must be ad- expenses travel that inbound advance vari expenses, visa the Workers employer or reimbursed vanced reim support of their arguments ous say There are laws an H-2B worker. claim which we now address. bursement return) (ie., expenses travel that outbound First, that both ex argue the Workers H-2B paid for workers must be per penses “specifically are circumstances and that inbound ex- certain employer’s particular formance of require H-2A reim- workers penses employee must have work” because bursement,5 regulation but no statute or in order get visa and must in- requires reimbursement expressly short, they cannot legally. In work travel for H-2B workers. See 8 bound and visa outside transportation “use” the 1184(c)(5)(A) payment (requiring U.S.C. They employment. of that the context transportation costs cer- of outbound “primarily expenses contend that these workers); 20 tain circumstances for H-2B convenience of the em for the benefit and 655.102(b)(5)(I) (requiring C.F.R. Hence, these ployer.” argue inbound costs payment of of the trade” expenses constitute “tools workers). (2010),6 for H-2A certain circumstances to 29 531.35 pursuant C.F.R. issue, in on this the face these payment Silence of these governing transportation, specific laws from their are “de facto deductions” deafening. wages.

Similarly, regulation provides concept or argument no law stretches the This prece- far. employee that fees for the side of the visa “tools the trade” too Our by disputed ex- process paid must be dents look to the nature of application 40.1(l)(1) every simply declaring § than penses 22 rather employer. See C.F.R. 203(m) § exception contained in 29 U.S.C. 5. defined U.S.C. As 1101(a)(15)(H)(ii)(a), supports position. § See 29 U.S.C. "H-2A” workers in- 203(m) employer only temporarily (permitting § to deduct clude those individuals relo- an "agri- furnishing cating perform wages meals and to the United States to from the cost of 203(m) Conversely, directly lodging). labor and services." does not cultural Section only expenses liability upon employers "H-2B” workers include those individu- impose incur, relocating temporarily nothing to the United States do employees als and it has to short, perform non-agricultural other labor or expenses. to In with travel or visa argument begs services. clear” Workers’ "free and expenses question are of whether these employer legally required to bear —a is contend that must 6. The Workers also negative. singular question we in the and clear” and that the answer be “free job helpful given expenses to em travel and visa are covered cost expense. Mayhue’s Super Liquor However, ployer the FLSA.8 the Department’s Stores, Hodgson, 464 F.2d Inc. v. Field Assistance Bulletin No. 2009-2 Cir.1972) (5th (asking (“Bulletin”) whether an act long was issued after expenses); to Bren employer tended shift rule, in question. general events ap Serv., Inc., Cleaning nan v. Veterans here, plicable changes is that in the law (5th Cir.1973) (assessing F.2d applied will not retroactively be when the analogy expenses by various claimed result would be that “new and unantic previously expenses other deemed not ipated obligations may imposed upon a properly chargeable). physical A visa and party without opportunity notice or an job presence at the site are not “tools” Bradley be heard.” v. Sch. Bd. Rich particular this “trade” within the mean mond, 696, 416 U.S. 94 S.Ct. “ ing applicable regulations. of the See also (1974). Thus, L.Ed.2d 476 even ‘con (2010) § (describing 29 C.F.R. 531.32 gressional enactments and administrative safety caps, explosives, items like lamps, will rules not be construed to have retroac power, company police security, electric tive effect unless their language requires ” employer buildings, taxes and insurance on Landgraf result.’ v. USI Film railway maintenance-of-way fare for rail Prods., 244, 272, 511 U.S. 114 S.Ct. workers, way and uniforms as “other facili (1994) 128 L.Ed.2d 229 (quoting Bowen v. subject ties” not deduction the Georgetown Univ. Hosp., 488 U.S. employees’ wages).7 208, 109 468, 102 (1988)). S.Ct. L.Ed.2d 493 Whatever

Second, may deference be due to the Department of La Department’s informally bor, promulgated Bul briefing support as an amicus in Workers, future, letin in the points also to its own recent does not itself in “interpretation” informing way whether purport apply retroactively.9 Ac- Additionally, argument the Workers' like the one now at issue—should not inform specific unique these understanding the court's of the statute. employer question is contradicted acknowledge regulatory 9. We that the regulation governing land federal the use and scape very just is now different than it was transferability H-2B visas: “If the alien is See, years ago. e.g., few short 20 C.F.R. change in the United States and seeks to 655.22(g)(2) 8 C.F.R. employers, prospective new 214.2(h)(6)(i)(B) (2010). express We no petition requesting must file a on Form I-129 opinion today as to how our decision affects classification and an extension of alien's regulations. those new stay in the United States.” C.F.R. 214.2(h)(2)(i)(D) (2010). words, In other Moreover, not, we dissenting do as the employee does not have to return to his or opinion suggests, Secretary’s that the claim country begin her home and start from the briefing amicus is entitled to no deference ning change employers in order to once in the briefing because the Bulletin and were filed interesting United It States. to note that it giving after the events er, rise to this suit. Rath- appears that at least some of the Workers are contends, Secretary paradoxically, the that despite seemingly still in the United States the position Department the of the has remained temporary nature of the H-2B visa and the fifty years the 98-day period same for save a anniversary recent fifth of Hurricane Katrina. Department but public- also concedes that the ly employers suspend informed it would the Notably, 8. the relating Workers make no effort to enforcement of FLSA standards to rely upon Department's recently the revised reimbursement issues from 1994 until 2008— "interpretations” support po- in their own when it concluded that reimbursement was fact, short, originally requesting necessary. sition. In in re- engage not In we decline to hearing, argued casually post imposition the Workers that in the ex of new duties that promulgated interpretations clearly of the FLSA— did not exist at the time of the events read, the of Labor did apply Department to it to the letters we decline cordingly, a promote not in fact include or “reim- here. situation until position De- required” bursement on the dissenting opinion The focuses informally changed in partment course that relo- Department’s previous position fаct, In of the letters in none cited employer cation clear, expressed a dissenting opinion wages. Signif- could not be deducted unequivocal employee-incurred that stance icantly, did not address Department constitute a relocation costs kickback. reimbursing relocation ex- the issue of Thus, inconsistency ambiguity— point, 1994. At that the De- penses until properly the deference discussed afforded partment analyze announced would in the not create dissenting opinion —did adopted po- a issue of reimbursement and, duty affirmative to reimburse during sition its delib- of non-enforcement moreover, merely problem underscores the the Department The first time erations. retroactively with the that we suggestion in the specifically spoke reimbursement apply the most recent Department’s guid- “kickbacks” alleged context of like those ance. issue was its announcement in 2008 here Finally, cite to the Elev require that it not reimbursement.10 would Workers Arriaga The then enth in v. Fla. Department reversed itself 98 Circuit’s decision L.L.C., (11th Farms, days for the Pac. 305 F.3d later to assert first time Cir.2002), position. required. Carefully support was Am- reimbursement authority giving guise warned rise to this suit under of Auer will undercut the of such Robbins, agency pronouncements. deference. Auer v. 452, 462, 519 U.S. 117 S.Ct. L.Ed.2d argues 10. dissenting opinion a (1997). Department produced response an letter employer’s outstanding settle its lia- effort to Moreover, litigation pre- as a document bility pronouncement an earlier constitutes context, pared very specific it is a doubtful position. Department’s Properly read in diligent employer even the most could context, correspondence it is not. The an- (or readily have would have accessed known specific question: a whether the De- swers for) "interpretation.” to look this so-called partment persisted employers in its belief that noteworthy dispositive, While not it is that the could make deductions that not dissenting opinion employer would hold or, wage, cut the minimum as the em- into random, piece litiga- liable a under such contended, recently ployer adopted it had tion-specific correspondence where the affida- position. dissenting opinion's quoted very of the vits workers at issue this case nothing language more than the adminis- requested ever do state that Workers suggesting likely trator that reimbursement expected prior to this liti- reimbursement could under the facts of that case. now, gation. years, all these if Even after Importantly, the decisions of the district check, it Decatur wanted to write a would not (1) underlying case reveal: the letter dissenting opinion know the Yet the amount. workers(now agricultural properly addressed would should hold that Decatur somehow workers); (2) categorized as H-2A the case figure its have divined such a on own within payments involved direct the workers to starting one week Workers their em- transportation expenses; less, ployment, despite the fact that no it had rejection letter was issued determining way no it—accord- reasonable attempts employer's way to find to settle sponte ing duty dissent—had a sua outstanding wage liability —not investigate and provide the Workers’ costs general inquiry liability whether into Thus, yet during as untold sums exactly reimbursement of the 1986 letter the existed. is job order to their first week on the avoid post sort hoc rationalization in context the litigation Supreme Wage-Hour of active that the Court violation.

403 however, workers, H-2A aga, expenses, dealt with ment will not repeat we our H-2B workers. Id. at 1232-33. His- not analysis arguments.13 of those Again, the torically, H-2A and H-2B workers have regulations silent, statute and so we differently. Compare treated been turn considering to the Workers’ addition- §§ (broadly 655.90-113 set- C.F.R. arguments regarding al recruitment ex- ting regulatory regime out a distinct penses. management program) of the H-2A §§ (providing with C.F.R. 655.1-.4 The Workers argue they were re workers) H-2B regulatory regime for quired pay and, recruiting fees there (2007)11; Dole, see also Sweet v. Life fore, those fees should be considered “part (5th Cir.1989) (explaining F.2d job,” citing Rivera v. Brickman H-2 program specifically was re- Ltd., Group 05-1518, Civ. No. 2008 WL designed by Congress in 1986 to “sepa- (E.D.Pa. 2008). Jan. They con from agricultural nonagricultural rat[e] scheme”). workers in the administrative tend thаt fact presented issues are as to Indeed, regulations specifically provide payments nature of the and whether some reimbursement obli- they required by were Decatur. In re gation remaining for H-2A workers while sponse to Decatur’s motion for summary by on incurred H- expenses silent similar judgment, proffered Workers no evi Thus, Arriaga’s 2B workers. reasoning support dence to concept that Decatur not here. does control required any recruitment fees to be Accordingly, we conclude as a matter of foreign recruiters or that it required law that these are not reimbursa- the Workers to use these recruiters to ble,12 in deny- district erred apply to Decatur. The fact that the Work ing Decatur’s motions on these points. ers benefitted from these by services find Expenses

2. Recruitment ing jobs with Decatur does not suggest that Decatur was the one who required The Workers raise some of the arguments regarding job same their placement the recruit- use of firms.14 undergone going 11. The cited have foreign sub- indeed talk about recruiters being charged years. way suggest revision in recent fees but in stantial The 2007 no charged that Decatur those fees or Regulations edition of the Code of Federal Instead, payment. their say the affidavits cited because it was that version that they by foreign were told recruiter that district court considered when it concluded they pay "had to program for the cost of the that H-2A and H-2B workers were not suffi- go to be able to and work for the Defen ciently distinguishable prevent Arriaga only foreign dants.” The tie between the re applying to the instant case. cruiter and Decatur comes in the Workers’ 12. we Because hold that the FLSA does not statement "understood that the [for eign agency obligate agency recruiter’s] was an Decatur to reimburse the uti Workers for by lized the Defendants for the recruitment of transportation expenses, we do not con- workers like me ....” The affiant’s "under argument sider Decatur’s in the alternative standing,” any without stated basis for such that, purports even if the FLSA otherwise "understanding” agency ty is no evidence of reimbursement, obligate the Portal-to-Portal (such ing foreign UniverJobs) recruiter recovery. Act nevertheless bars Explora to Decatur. See Cormier v. Pennzoil Co., however, (5th tion & Prod. F.2d noteworthy, It that even Arria- 1992) (holding Cir. that affidavits offered to ga require did reimbursement of the re- support oppose summary judgment must expenses. cruitment personal knowledge on based to create a suggestion 14. The Workers' that unresolved fact); genuine issue of material see also Fed. disputes prevent fact this court from 56(e)(1). consider- R. Civ. P. Nor is there evidence ing point is belied the record. The of a contract between UniverJobs or other Thus, affidavits submitted some of the Workers recruiters and Decatur. even if charged there would no Moreover, previously, rests on so be the claim asserted provided as protect employees that need to the the when the Workers argument in home in new paid recruiting regulations. services the for expense countries, belonging they paid sum, In not Decatur was to costs, visa both to As with employer. reimburse for the fees they the Workers contribute to employees and employers paid job placement to the various firms. using recruiting program: cost in Consequently, the district erred to help recruiters them employers pay denying point. motions on this Decatur’s application process and navigate the visa Accordingly, we REVERSE district (here, in countries locate workers judgment entry court’s and REMAND for Accent), and employees hired Decatur judgment appellants. in favor in their home countries to pay recruiters REVERSED and REMANDED for en- in work the United help them find try judgment. payment for each States. The division indicates, in party’s benefit respective DENNIS, Judge, dissenting, Circuit context, that the Workers’ use of visa joined fully by JENNIFER WALKER not recruiters in their own countries was ELROD, joined in Judge; Circuit and expense. Again, Decatur’s business while KING, I only by Sections and II W. may general both recruiters benefit DAVIS, STEWART, E. EUGENE CARL parties, payment for benefit can PRADO, Judges.1 Circuit (and been) apportioned be here to has It appropriately. undisput- each party (1) majority opinion ignores control- ed Decatur thе fees it was ling Supreme holding Court decisions charged by recruiting Accent for services. give federal courts must deference to the Thus, fact issue no material was raised (“DOL”) Department of Labor’s reason- point. on this interpretations able of its own valid regula- tions under the Fair Labor Act Standards Department Newly enacted of Labor (“FLSA”); (2) adopts applies its own regulations15 (promulgated after the time interpretation eccentric of the FLSA question) actually support the conclusion holding, the DOL’s regulations, contrary expenses recruitment were not reim views, plaintiffs, the DOL’s that the at the time. These tem- regulations bursable provide guest porary workers from South American na- protection workers from tions, have unscrupulous right employers recruiters em no to sue their requiring ployers contractually obligate paying those with under FLSA for them sub- they charge whom not to employees refusing work reimburse visa, recruiting outlay transporta- fees. These new ac them for their tually suggest ques that the tion and costs recruitment incidental tion previously charged were not and for benefit of the primary employ- against foreign-labor If employers. program; were to be ers’ limited, reasoning,

we were to follow Rivera’s it would reach of the case within its merits apply here. appellate jurisdiction disagree certified but majority with as to merits of case 15. 20 C.F.R. 655.22(g)(2) and 8 join dissenting opinion this that re- 214.2(h)(6)(i)(B) (2010). C.F.R. spect. Judges Dennis and Elrod dissent from words, Davis, majority's pertaining decision to both Judges King, In other Stew- art, appellate jurisdiction exercise of and the agree majority opin- with the mer- and Prado appropriate ion that it is court to its of the case. (3) Supreme misconstrues record the district Court and circuit precedents and court, treating undisput- material facts as jurisdiction to overreach our appellate un- truth, ed, when, 1292(b). those facts are in dis- § der 28 U.S.C. This second un- pute mostly evidence as to them is precedent fortunate is also regrettable, but —the undiscovered, and the district court.has it is less imitable and harmful than the them; yet tried or decided and majority’s prеcedent FLSA because the Supreme misapplies Court and circuit majority opinion jurisdictional cloaks its precedents improperly questions reach overreach misrepresenting the district appellate jurisdiction not within our court’s having decision as reached and de- 1292(b). § 28 U.S.C. I respectfully dis- cided the merits certifying before a thresh- sent. question old of law to this circuit. part most unfortunate and harmful I. majority’s decision,

of the which must be In August first, Hurricane Katrina interpreta- addressed is its incorrect major flooded low-lying parts of FLSA, tion New Or- application and leans, causing hundreds of regulations, DOL’s hotel and tour- and the DOL’s inter- ist workers to evacuate the pretation city perma- In regulations. its errone- nently or for extended periods. ruling, majority opinion ous Hotel creates however, businesses quickly, revived split between us and the be- Eleventh Circuit cause Katrina city’s venues, left the and establishes a circuit tourist precedent higher ground, located on employers relatively un- permits to shift their costs in scathed. Faced with a labor recruiting foreign shortage, labor to their de- temporary fendants-appellants recruits; employers, hotel foreign worker Deca- allows those Hotels, tur Quinn LLC and F. Patrick employers effectively reduce III temporary (“Decatur”), wages approval workers’ obtained from below the national- ly temporarily recruit, DOL to established minimum floor employ obtain competitive disadvantage creates visas for plaintiffs-appellees for oth- from employers pay legitimate er who South American wages at nations as H-2B workers (the Workers”).2 or above that floor. “Hotel majority opinion adopts also Decatur recruited the Hotel Workers panel’s misreading Bolivia, cavalier of the district Republic the Dominican erroneously court’s decision to misapply Peru. The allege Hotel Workers that De- program, guest 2. Under the H-2B 214.2(h)(6)(i)(A). § workers States workers.” See id. admitted, are "authorized to come guest to the United States legal Once workers’ status temporarily perform performing servicеs or labor for specific is tied to labor for the employer” ... an "petitioned” who has petitioned who for the visas. See id. right employ guest § H-2B workers and 214.2. Under no circumstances can the petition approved by whose has been country longer workers remain in the than 214.2(h)(1)(f). § DOL. 8 C.F.R. years. 214.2(h)(15)(ii)(C). § Before H- three Id. What more, granted, prospective 2B visas can be any point em expire if at the H-2B visas ployer must "establish ... the need for the jobs, the workers are dismissed from their employee[s]” and that such a need "will end immediately leave the near, future[,] [gjenerally in the country. 214.2(h)(6)(vi)(E), definable ... See id. 214.2(h)(6)(ii)(B). year (h) (17) (iii) (C). exit, one or less.” help Id. To ensure such an Moreover, the DOL throughout must determine that the period H-2B employment, employment "displac[ej guest workers’ will not workers must maintain a "residence qualified United States foreign country” workers” and that in a and have "no intention adversely their work will "not abandoning” affect[] it. U.S.C. working 1101(a)(15)(v)(H). conditions of United motion, of its De- support In quirement. pay them to be- required agents catur’s of facts. unilateral statement re- catur filed a for the each and $5000 tween $3500 produced evidence Hotel Workers fees, transportation The fees and visa cruiters’ facts and house- Decatur’s asserted workers, contesting as who served costs. summary judg- partial and maintenance clerks cross-motion desk keepers, denied Decatur’s staff, ment. The district paid $7.79 were between $6.04 summary judg- to reim- and for hour, refused to dismiss but Decatur motion per visa, the Hotel transportation granted partially for their ment and burse them Consequently, motion, it only insofar as costs. but and recruitment Workers’ workers, reduced that, that these costs H-2B temporary contend plaintiffs held substantially less to mini- by effective the FLSA’s they protected their were wage of minimum $5.15 than the federal The district wage requirements. mum As a pay periods. first hour in their per decide whether court declined to result, to work for three they visa, were forced transportation FLSA visa, just recoup to their months by to five the Ho- expenses paid and recruitment costs. transportation wage facto to be trеated as de tel Workers Moreover, that under undisputed it is motion, further Decatur’s deductions. On prohibit- legally were program, H-2B ad- certified its order the district court employers out- working for other ed from ques- only legal the threshold dressing have might who program side the wage minimum the FLSA’s tion—whether wages. The Hotel Workers higher them foreign tempo- H-2B protection applies system compensa- argue that Decatur’s interlocutory appeal an rary workers —for wage placed deductions tion and de facto 1292(b). A motions under 28 U.S.C. peonage. them debt granted appeal. panel of this court by and decided twice result, disputes arose be- The case was heard wage aAs Ultimately, we panel. argument and the Hotel Workers. an oral tween Decatur vacating the rehearing Hotel August granted Workers an en bane On Decatur, that Decatur had alleging panel’s opinion. sued wage with the minimum comply failed to II. FLSA, 29 U.S.C. provisions of 206(a). 203(m), the Hotel Specifically, §§ majority opinion concedes Although the that Decatur’s refusal alleged Workers wages of the applies to the that the FLSA out-of-pocket defray Hotel Workers’ Workers, it does not heed the Su- Hotel visa, ex- and recruitment require fed- decisions preme Court’s the national penses violated deference to the DOL’s give eral courts Hotel requirement by pushing the wage regu- of its valid interpretation reasonable wage the minimum wages below Workers’ majority lations under the FLSA. pay periods. in their first to reconcile its decision attempt does not cases; nor does Supreme Court’s with only discovery, Decatur After limited interpreta- the DOL’s try to show that summary and for a motion to dismiss filed and therefore tions are unreasonable court con- the district judgment, which Rather, majority adopts controlling. contending that the Hotel Work- strued as unfounded, approach, apply- eclectical any protection were not entitled to ers interpre- statutory, regulatory and ing the and, alternatively, the FLSA disregard- it chooses while provisions tive Decatur to refund require FLSA did not with its own those that are inconsistent ing visa and recruitment transportation, justice. respectfully I submit notions of the minimum re- part costs as colleagues sight customarily have lost furnished my 203(m). that the proper perspective employees.” role and Su- his 29 U.S.C. has said federal courts must preme Court Congress expressly granted the DOL construing applying a eon- maintain authority promulgate necessary gressionally authorized administrative rules, regulations or other orders under interpretations regula- of its own agency’s the FLSA and amendments thereto.3 so, doing majority opinion tions. In Moreover, arising cases only conflicting has reached decision FLSA, Supreme Court has held that decisions, Supreme but with Court’s power of the DOL to administer the interpretations also with the DOL’s of its “necessarily requires FLSA the formula- the decisions of the Elev- regulations, own policy tion of and the making of rules to fill enth and the decisions of several Circuit left, any gap implicitly explicitly, by Regrettably, federal district courts. Home, Congress.” Long Island Care at majority opinion deprives foreign also tem- Coke, 158, 165, v. Ltd. 551 U.S. 127 S.Ct. in this circuit of minimum porary workers 2339, 168 L.Ed.2d 54 (quoting Chev- wage protection against employers shifting ron, U.S.A., Inc. v. Natural Res. Def. primarily to them costs incidental to and Council, Inc., 837, 843, 467 U.S. 104 S.Ct. employers’ for the benefit of the busi- 2778, (1984)) (quotation 81 L.Ed.2d 694 viz., nesses, visas, transporta- the costs of omitted). marks agency “When an fills necessary hiring tion and recruitment a ‘gap’ reasonably, such and in accordance foreign workers. with other applicable (e.g., procedural) re- Congress Department created the of La- quirements, accept the courts the result as ‍‌‌‌‌​‌​​​​‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌​​‌‌‌‍foster, part, promote, bor in 1913 in “to Chevron, legally binding.” (citing Id. 467 develop wage the welfare of the earn- 843-44, 2778; at 104 S.Ct. United An ers of the United States.” Act to 218, 227, v. Corp., States Mead 533 U.S. Labor, Department Create a of Pub.L. No. 2164, (2001)). 121 S.Ct. 150 L.Ed.2d 292 (1913). 62-426, 1, 1938, § In 37 Stat. 736 Supreme Court has also held that Congress passed the Fair Labor Stan- interpretations the DOL’s regu- its own Act, creating Wage dards and Hour “ ‘controlling’ ‘plainly lations are unless er- Department Division of Labor and roneous regula- or inconsistent with’ the codifying protections wоrker such as mini- tions being interpreted.” Long Island wage pay. mum and overtime 29 U.S.C. Home, 171, Care at 551 U.S. at 127 S.Ct. § 201 seq. et. Prior to the Hotel Workers Robbins, (quoting 2339 Auer v. 519 U.S. 2006, filing August this lawsuit 452, 461, 905, 117 S.Ct. 137 L.Ed.2d 79 pay FLSA Decatur to each of its (1997), quoting in turn Robertson v. Me- employees not less than an hour. 29 $5.15 Council, Valley thow Citizens 490 U.S. (2006) (amended 206(a)(1) 2007). § U.S.C. “ 332, 359, 1835, 109 S.Ct. 104 L.Ed.2d 351 also provides Wage’ FLSA (1989), in quoting turn Bowles v. Seminole employee includes the reason- Co., 410, 414, Rock & Sand cost, 325 U.S. 65 able as determined the Adminis- (other 1215, (1945)) Division], S.Ct. 89 L.Ed. 1700 Wage trator and Hour [of omitted). quotation marks Our circuit and furnishing employee such board, facilities, letters, lodging, opinion with or other if others have held that hand- board, lodging, or other facilities are other published books and declarations of Act, 89-601, 602, 259(a); 830, § § 3. See 29 U.S.C. see also Fair Labor Pub.L. No. 80 Stat. Act, 99-150, 6, (1966); Act, Standards Pub.L. No. 99 844 Fair Labor Standards Pub.L. (1985); 87-30, (1961). Stat. Fair Labor Standards No. 75 Stat. matter, i.e., a briefs, an interstitial it concerns views, including amicus agency’s definition, the details agency’s portion of broader authoritative sources which, said, Congress Belt entrusted regulations. own as we of its interpretation (5th Inc., EmCare, Long out.” Island agency 444 F.3d to work v. Cir.2006) (“We Home, Auer applies, conclude that at S.Ct. 551 U.S. Care weight to the DOL’s controlling give we so letter, opinion in the 1974 adopted

position in 1967 promulgated regulations, These ”); .... Handbook, brief and amicus that a change, explain subsequent without IntraComm, Bajaj, 492 Inc. v. see also provided if it only paid (4th Cir.2007) (noting F.3d ‘free and unconditionally or “finally and interpretation Secretary[ Labor]’s “the ” They elabo- 531.35. clear.’ 29 C.F.R. regula- combination-exemption of her own by continuing: rate on this rule in her amicus letters and opinion tion in of wage requirements The [minimum] to [Auer] court is entitled to this brief the em- met where the Act will not be Exch., deference”); In re Farmers Ins. directly indirectly or “kicks-baek” ployee Cir.2007) (“We (9th 1119, 1129 481 F.3d person or to another employer to the inter- to the DOL’s give deference must part or the whole employer’s the benefit through, regulations own pretation of its employee. wage of the delivered Letters.”).4 Opinion example, is the “kick-back” This is true whether above, statutory text of the As shown For in cash or in other than cash. made cleаrly gaps. relevant leaves the FLSA the requirement if it is a example, scope it not define the example, For does pro- employee the must employer that “board, lodg- “wage” and of terms such as trade which will be used vide tools of the other facilities.” 29 U.S.C. ing, or required for the specifically in or are 203(m). provides it Consequently, § particular performance employer’s of the gaps fill these power with the DOL work, a violation of the there would be regulations. through reasonable the cost of any Act in workweek when issuing a series responded by The DOL purchased by employee such tools wage minimum defining the regulations the minimum or overtime cuts into 531; pt. id. under the FLSA. 29 C.F.R. him to be under wages required so, 531.32, it doing In followed §§ 531.35. in this connection Act. See also necessary requirements'— procedural all 531.32(c). § notice, regulations, it gave proposed “[i]t §Id. 531.35. comment, fi- and it issued public received 531.32(c), provision 29 C.F.R. that comment.” light nal 531.35, provides §in fur- cross-referenced Home, 551 at Long Island Care at U.S. examples of items understood ther Fed.Reg. 127 2339. See also 32 S.Ct. of the and there- for the benefit regula- (promulgating the by the being paid prohibited fore tions). regula- of the subject “The matter or her charged against or his employee a matter in question concerns tion[s] wage reduced so that the effective is expert, respect agency to which the Belt, ("The history agency respect and content with at 416 n. 35 most 4. See F.3d extending greater defer- F. Man- important reason for enacted rules. See John of its own purports to inter- ence an amicus brief that ning, Structure and Judicial Constitutional ambiguous regulation pret agency’s own Agency Agency Interpretations Deference Auer), (under interprets than brief Rules, 630-31 96 Colum. L.Rev. (under Chevron), directly organic statute (1999).”). familiarity greater expertise are, statutory pay Supreme tions of them Court below examples jurisprudence, controlling plainly These include unless period. business, employer’s regula- such further erroneous or inconsistent with the miners’ “[sjafety caps, explosives, interpreted. being Long as tions See Island Home, that are the em- incurred at lamps,” Care at U.S. 127 S.Ct. function, Auer, job to fulfill or her ployee his (citing 905). “charges for rental of uniforms S.Ct. requires the nature of the business where nearly fifty years, For has DOL uniform,” employee to wear a as well interpreted regulations pertinent to this merely the smooth facilitate as costs that employers case to mean must bear employer’s operation of the and consistent visa, and recruitment costs police “company such as enterprise, hiring to their for temporary incidental 531.32(c). guard protection.” Id. workers, eign guest and that must . ex- 29 C.F.R. 531.32 also describes reimburse these costs to workers whenev that would not be considered to be penses employer’s er the failure to do so would therefore employer’s benefit and effectively employee’s wage reduce the be paid by employee or deducted could be statutory pay low the minimum in the first wage despite his or her minimum from period.5 majority Because the opinion reducing it minimum. statutory below the incorrectly contends that the DOL did not 531.32(a). regu- the expenses, Such Id. interpret regulations require its to reim explains, something “must be like lation employees of costs bursement contrast, it lodging.” By Id. board 1994, a prior to detailed examination of the continues, they transporta- cannot include agency’s interpretations necessary.6 where those are “incident tion costs costs 11, 1960, Starting May on opinion DOL necessary employment.” to the Id. of and consistently letters handbooks have that, language regula held in the of the majority opinion challenge not does tions, guest transportation workers’ costs validity or of these reasonableness the from of hire to point place the the Therefore, regulations. according to DOL were for the employment the benefit of cases, Supreme Court’s must ac- the we they the employer as were “incidental to legally as regulations the DOL’s cept thus, program[s]”; recruitment could binding DOL’s in- and then consider the not agen- properly “part the be considered as terpretations of them. Because Lеtter, Wage-Hour Opinion dat interpretations wages.” are of its cy’s creatures 11, 1960.7 on regulations, interpreta- May the ed A letter issued own DOL’s wage employees' be requirements the minimum could not deducted from 5. While pay peri- wages, FLSA must be satisfied in each if the result would be to reduce od, only pay periods wages of the Hotel required by the first the minimum either below are relevant here because their out Workers the Service Contract Act or the Fair Labor visa, Act.”); transportation recruitment pocket Wage-Hour Opinion Letter Standards ¶ ¶ 1139, 69-73, 30,709, expended prior were commence- costs CCH-WH dated No. 10, employment. ("The their transporting ment em- Nov. cost of point ployees and from the of hire would Majority Op. properly computed part & be 401-02 401 n.9. not as of individu- wages employees 'indi- al either 'direct' or employees expense rect' as such is a cost Wage-Hour Opinion also Letter No. 7. See 4, ¶ ¶ 937, 30,949, employer's pro- to an dated incidental recruitment 66-69 CCH-WH Feb. (''[Bjecause transportation gram employer. should which be borne the cost of Moreover, withholding normally regarded transportation of such from a work-site was cost, legally not be extent employer’s of the costs could made to the part as recruitment Labor, Affairs, Dep’t of 1977, governmental inter- 26, reiterated this September 2001) 30, (May regulations, explaining to John W. Warner of the Senator pretation (“Let must be ex- [DOL’s] costs me first summarize transportation “regarded they were employer regard enforcing because with isting policy cost, employer’s of the part as on worker- interpretation general [FLSA] employer.” by the must be borne which Employers transportation costs. incurred Letter, Sept. dated Opinion Wage-Hour transporta- liable for worker-incurred added). Moreover, a (emphasis remotely-hired workers tion costs 28, 1986, stated that letter from November employer’s work- point of hire to the or her pays who his own employee “an site.”). Thus, majority’s contrary to the be reimbursed to transportation must assertion, of the DOL’s reading a careful the first week of received extent (1) well reveals that prior interpretations costs employment less fact, early as as before wage for all than the total less require interpreted DOL worked”; thereby made the letter hours pri- that were reimbursement of interpretations do not that the DOL clear of the marily for the benefit deductions, but also solely address employee’s wage they reduced because requirement. establish reimbursement minimum; and statutory below Letter, dated Nov. Wage-Hour Opinion regarded travel early as DOL added). also (emphasis See part employer’s “recruit- costs as Letter, May Opinion dated Wage-Hour costs,” by the which must borne ment be (“It Department’s policy is also the Therefore, historically, and at employer. remotely hired under employees arose, inter- case the DOL the time this may program H-2A the em- regulations require its preted transportation the cost of bear foreign temporary to reimburse ployer expenses that such to the extent worksite costs. their recruitment-related workers the employee’s receipt on the infringe in the recently set forth the DOL As in- wage.”). These same FLSA minimum Assistance Bulletin issued 2009-2 Field in at the time the terpretations place were Labor, Department States United were hired and thus when Hotel Workers Administration, Employment Standards in their rights were violated their FLSA Division, the DOL stated Wage and Hour A. pay periods. Letter from Kristine first consistent, long-lived interpreta- Iverson, Sec’y Cong. & Inter- that Assistant for ¶ 30c13(e) (1988) (stating principle); wages statutorily the same they re that reduce below 531, WL compen Wage-Hour Opinion Letter No. 1990 overtime quired minimum 27, ("Under FLSA, 3(m) Regs., dated June and Sec Section sation. FLSA, .37.”); always position of the Wage-Hour Opinion it has been the tion 531.36 and deduction, Letter, (stating Department of Labor that no Sept. the same dated Letter, wage, may minimum be made principle); Wage-Hour Opinion dated cuts into the from, ("It point transportation of workers position that Nov. remains our so, where, here, point. return to that This is migrant are hired in of hire and workers elsewhere, transportation costs incurrеd employment no because such Puerto Rico for primarily are deemed to be this connection deduction that cuts into the minimum (29 employer Part CFR may transportation migrant for the benefit of be made for 531.32(c)).”); Wage-Hour Opinion Letter dat point of hire and return to workers from ("The Department's current position May point. ed The rationale for transpor policy that worker-incurred transportation incurred in this con remains costs point remote hire to primarily tation costs from the deemed to be for the nection are primarily are for the benefit employer.”); Dep’t U.S. of La the worksite benefit of the Handbook, bor, employer.”). Wage-Hour Operations Field regulations, commencing tions of its ployers to reimburse H-2B employees for are the same as DOL’s current their inbound transportation, visa and re- prevailing interpretation regula- cruitment costs.8 The explains Bulletin tions in 2009. In its Bulletin’s interpreta- always this has been the DOL’s inter- tion, pertinent reads the regula- pretation the DOL of the relevant regulations,9 ex- tions, changed have not been cept which since for a interpretation by short-lived sense, any require relevant em- DOL issued in December 2008.10 That Division, Wage Dep't employees and Hour of La- burse H-2B transporta for their bor, Field Bulletin Assistance No.2009-2 tion and related costs. The Bulletin states: (2009), http://www.dol.gov/whd/ available at disagree "We thus with the Fifth Circuit's FieldBulletins/FieldAssistanceBulletin recent decision in [v. Castellanos-Contreras 2009_2.htm. The Bulletin states: "Accord- Hotels, holding Decatur LLC] that the FLSA ingly, temporary in the context of the H-2B require employers does not to reimburse H- nonimmigrant program, visa we conclude employees 2B for their that such travel and visa costs are (5th Cir.2009).] related fees. F.3d [576 Therefore, primary employer. benefit of the that, The court concluded because the FLSA employer must reimburse those costs in regulation kick-back specifically does not ad they the first workweek to the extent that transportation, dress visa and ex employee's wage reduce the below the mini- penses Department and the of Homeland Se (fоotnote omitted). wage.” mum Id. at 12 curity Department regulations of State do "[Ujnder program regulations both the visa require employers pay expenses, FLSA, employers and the we believe that they employers’ are not expenses. business responsible paying the fees of recruit- [Id.] The court declined Arriaga to follow [v. ers retain to recruit workers and Farms, L.L.C., Florida 305 F.3d 1228 Pacific provide job opportunity.” access to Id. (11th Cir.2002)] both because that decision employer "Whenever the is found to be the [workers], involved H-2A instead of H-2B primary beneficiary, must reim- [workers], upon and because it relied section burse such if the failure to do so 3(m) FLSA, 203(m)] [of 29 U.S.C. bring employee's wage would below the necessary the 'incident of and to’ standard in wage.” Id. at 9 n. 3. (the 531.32 instead of 531.35 kick-back period 9. The Bulletin states: "Over a of 30 regulation). The court also stated that the years beginning Wage and Hour is- fact that the newly 2009 H-2B opinion sued a consistently series of letters require employers to forbid their recruiters concluding transporting that the cost of re- charging from employees suggests fees to that motely temporary employees hired to and previously employer such fees were not an point from the of hire is a cost that must be expense. Arriaga We believe that the employer, borne aas cost incidental to correctly 3(m) upon princi- relied the section employer’s program, because ple employer may an only take credit —that transportation primarily employ- is for the facility a employee's for that is for pri- benefit; therefore, transportation er’s mary may benefit require employ- not an employees' wages costs could not reduce the employer expense ee to bear an business if required wage.” below the minimum Id. at employee's pay that will reduce the below the Emphasizing prior interpretations that its wage minimum principle that is inter- —as reimbursement, prevented as well as preted (indeed, § in both 531.32 and 531.35 deduction, costs, of such the Bulletin also § 531.35 contains a cross-reference to explains May a “[i]n letter dated 531.32). The fact that 531.35 does not 1996, Wage 'policy and Hour clarified that its specifically transportation, address visa and transportation remains that worker-incurred temporary foreign recruitment fees for work- point costs from the of remote hire to the analysis. regula- ers is irrelevant to the The primarily worksite are for the benefit of the ” general prohibition tion sets forth the against employer.' Id. at 4. example relating kick-backs and has one trade; tools of the explicitly disagrees 10. The Bulletin that does not also indicate that with case, which, panel opinion second in this kick-backs for other majority, permissible. like the instant had held that the The Castellanos-Contreras deci- is, course, require employers FLSA does not binding precedent to reim- sion in the floor.12 the national below was is- interpretation single inconsistent concludes, Secretary was with- but December sued on Thus, period, for a brief three-month but later, 2009.11 on March days drawn expressed a consis- Department has and En- Process Labor Certification See requirements of the interpretation tent in Employment Temporary forcement years. The for some 50 of the FLSA or Agriculture than Other Occupations as mani- interpretation, Department’s in the States Nursing United Registered extensively-supported Field fested its Workers) (H-2B Technical and Other ap- setting Bulletin forth Assistance Fed.Reg. 78039-78041 Changes, longstanding interpreta- plication of its 2008) (Dec. 2008 inter- (containing the H-2B particular in the tion of the FLSA Interpretation Withdrawal pretation); context, to substantial defer- is entitled Act Concern- Fair Labor Standards ence.13 by H- Incurred Expenses ing Relocation Secretary states that the DOL does Workers, Fed.Reg. 13261 2A H-2B ease to sufficient facts not have 2009). (Mar. 26, whether Decatur express regarding a view the Hotel ultimately must reimburse Labor, more, Secretary of What outlay for their of recruitment Workers in this case with our amicus brief filed an However, Secretary cy’s action that the inter- course of indicates temporary employment under the H- dent regulation pretation own reflects its of its emрloyer is program, 2B we believe that the accepted ... we have that considered views beneficiary temporary em- primary own, interpretation agency's even if the as the immigration-related ployee’s travel response to set those views forth” in agency at 7. costs.” Field Assistance Bulletin litigation in the lower courts. and decisions 171, (third Sec'y of Labor 12. En Banc Brief for the at 127 S.Ct. 2339 See 551 U.S. Auer, Support of Plaintiffs- original) (quoting as Amicus Curiae fourth alteration in 20, 24, 462, 905) (quotation Appellees at 2010 WL 3049082. at S.Ct. 519 U.S. omitted). marks at 24. 13. Id. preamble 2008] [in- 11."The [December terpretation] inaccurately these characterized 14. Id. at 25 n. 8. expenses 'relocation' costs when in fact as (j)). 655.22(g)(2), (citing 20 C.F.R. 15. Id. expenses costs incurred as result brief.”). Secretary also notes that the preamble to views forth in a legal “The Secre- that final that requiring rule “states em- tary’s position inis no sense a ‘post hoc ployers to incur such costs is reasonable rationalization]’ advanced an agency because a recruiter is essential to the se- seeking past to defend agency action curing Finally, of such workers.”16 Auer, against attack.” at U.S. Secretary that employer concludes “an (alteration 117 S.Ct. 905 original) (quot- responsible paying would be for ‘de ing Bowen v. Georgetown Hosp., Univ. charged facto recruitment fees for access 204, 212, 109 S.Ct. 102 L.Ed.2d ”17 to the H-2A program,’ and that “[simi- (1988)). “There simply no reason to FLSA, larly, under the the employer is the suspect the interpretation does not primary beneficiary of the recruiter fees reflect the agency’s fair and considered when has retained a recruit- judgment on the matter in question.” Id. er to locate workers effectively majority opinion does not appear to job opportunity only limits the to workers appreciate significance of the Secre- using particular recruiter.”18 There- tary’s brief, amicus seems to follow fore, Secretary’s amicus brief is an its own rule that regulations FLSA are to case-specific interpretation immediate and narrowly against construed employees regulations of the DOL’s the trans- and that minimum wage protections are to portation, visa and recruitment except be withheld as employees plainly alleged by plaintiffs to have been re- unmistakably within their terms and quired primarily of them were for the ben- spirit. “But that is a rule governing judi- efit of Decatur Hotels and thus must be cial interpretation of statutes and regula- reimbursed if plaintiffs’ reduce the tions, not a limitation on the Secretary’s statutory below the minimum. power to resolve ambiguities in his own Secretary’s interpretation “[T]he comes regulations. A requiring rule the Secre- brief; legal to us in the form of a but that tary to construe regulations his own nar- not, case, does in the circumstances of this rowly sense, would make little since he is unworthy Auer, make it of deference.” free to write the broadly as 519 U.S. at 117 S.Ct. 905. See also wishes, subject he only to the limits im- Home, Long Island Care at 551 U.S. at posed by the 462-63, statute.” Id. (“Where, here, 127 S.Ct. 2339 as. S.Ct. 905. agency’s course of action indicates that the interpretation Secretary’s Under the regulation its own and the reflects DOL’s legally its considered Department binding interpretations views—the has clearly struggled third-party-em- regulations, with the DOL’s Decatur must bear the ployment question visa, since at least 1993—we and ‍‌‌‌‌​‌​​​​‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌​​‌‌‌‍recruitment costs accepted that, have interpretation as alleged facts, under the were neces- own, agency’s even if the agency set those sarily incurred in temporarily hiring the (citing Id. Ltd., Labor Certification (citing Process and Id. Group, Rivera v. Brickman 16. Temporary Employment Enforcement for 05-1518, Civ. No. 2008 WL at *13-14 Occupations Agriculture Other than Regis- or (E.D.Pa. 7, 2008) (unpublished); Jan. Mor- (H-2B Nursing tered in the United States Farms, Inc., v. ales-Arcadio Shannon Produce Workers) Changes, and Other Technical 605CV062, No. 2007 WL at *14 (Dec. 19, 2008)). Fed.Reg. (S.D.Ga. 18, 2007) July (unpublished)). (quoting Temporary Agricultural Id. Em- 17. States, ployment of H-2A Aliens in the United (Feb. Fed.Reg. 2010)). by employment in their as a condition of work tial fees Workers to

foreign Hotel court, Hotel In the district the in 2005 and Decatur. hotels New Orleans asserting view controlling filed declarations Further, the DOL’s Workers under obligated as a they charged by was were fees recruiters regulations, the Decatur the sums employment by the of their Deca- precondition Hotel Workers to reimburse necessary these Antonio pay advanced to Declaration of Rodolfo that each tur. See (Recruiters to do so within Decatur’s failure expenses; provided Valdez- Valdez-Baez period Decatur, pay first foreign pre- each worker’s to work Baez a contract sub- Workers pay it to the Hotel in- employee, caused a Decatur and signed FLSA. wages in of the violation job him that if he formed he wanted visa, trans- explained, the DOL has As pay part as would have them $1800 inci- costs were and recruitment portation program go “the cost of the to be able to Deca- primarily to and of benefit dental His decla- and work for the Defendants.” temporary Although tur’s business. “I goes [re- on understood that ration workers, course, some received foreign agency] utilized agency cruitment was under the from their employment, benefit for the recruitment by Defendants regulations, interpretation of DOL’s H- like me to work for them with workers primary were not the beneficiaries visas.”); Ricardo 2B Declaration of Oscar foreign program worker because Decatur’s facts); Deheza-Ortega very (stating similar Decatur while they were visaed servants of Daniel Declaration of Castellanos-Contrer- legally bound in the United and States him “that (stating that his recruiter told their their after foreign return to nations to obtain an H-2B and this in order visa Thus, majori- employment. temporary Defendants, pay I all of job with had erroneous ty by following its own opinion, expenses program” of the and that the rather than regulations view of the DOL’s fee); charged recruiter him a Declaration Secretary’s interpreta- or the DOL’s (stating very Sotelo-Aparicio of Francisco them, legally opposite tions of reaches facts). Moreover, they produced a similar clearly wrong conclusion the de- contract between subdivision of can never the Hotel Work- FLSA afford recruiting fendants-employers’ domestic ers, foreign workers temporary stating defendants-employers firm and the situation, any compensation relief or act as the agreed that the subdivision “to visa, having been to absorb the made on agent authorized defen- [the Client’s costs nec- dants-employers] prepare behalf to essary foreign to Decatur’s labor recruit- petition documents to submit ment venture. labor outside the Unit- temporary certifi- ed States under H2B labor [sic] Secretary’s of other interpretation The also process.” cation Hotel Workers regulations pertaining to recruitment DOL the defen- produced showing evidence by temporary foreign workers fees closely with those dants-employers worked fur- programs H-2B H-2A under the necessary job-related to provide recruiters against denying the Hotel ther counsels prepare applica- information and the H-2B claim for of such reimbursement Workers’ undisput- tions. The district court took as as matter of law. Secre- foreign “sub- ed that recruiters were in her brief that tary stated amicus defendants-employ- contractors]” at least one sce- these there is recruiting ers’ domestic firm. Castella- could nario in which Hotel Workers Hotels, L.L.C., viz., v. au- nos-Contreras Decatur prevail, showing that Decatur (E.D.La.), F.Supp.2d ac- amend- foreign or ratified recruiters’ thorized v. charging part by substan- ed in Castellanos-Contreras tions workers L.L.C., Hotels, 06-4340, premises No. incorrect in support uses as of Decatur (un- 2007) (E.D.La. opinion. July majority WL 6867035 district court never published). The was First, majority assumes an H- credibility of evaluate the upon called foreign temporary may 2B not worker re- attempt or plaintiffs’ declarations visa, cover his or her employer dispute resolve the obvious between costs, transportation and recruitment un- the recruiters acted parties over whether regulations less the FLSA and the DOL’s defendants-employers’ in agents as the and expressly specifically authorize such Hotel Workers recruiters’ charging the recovery. regula- Because or “[n]o statute fees. expressly tion states that inbound travel court, Therefore, party, nor has must be or no this advanced reimbursed whether, knowledge sufficient to decide an of an H-2B worker”19 the concludes, Secretary’s of interpretation majority “this lack of law would regulations, these Decatur owes reim- seem to end the matter as both the Hotel for for- visa expenses.”20 bursements to the Workers travel and As noted however, above, A eign proper reading costs. the Supreme Court has of the district court’s record and decision not confined the DOL to literal or clearly surrounding approach the facts in shows that wooden its inter- payment charging preting and of recruitment the FLSA. an agency “When fills very were explicit implicit statutory] fees this case much dis- or gap [an rea- subject pute, sonably, undecided to further and with ap- accordance other discovery ongoing plicable (e.g., procedural) when the district court requirements, of only legal accept certified the threshold issue the courts must result as legally Home, vel non to court. coverage binding.” Long FLSA Island at Care Thus, manifestly majority opinion errs (quotations U.S. S.Ct. 2339 omitted). in precluding the Hotel Workers from marks and citations recovering possibility of from Decatur for Second, the majority opinion similarly the fees in their they paid recruiters ignores the DOL’s interpretation and the foreign Only by countries. its applying of plain regulation reading words own regula- erroneous view the DOL’s § 531.35. majority C.F.R. The concludes tions, Secretary’s or the instead “primarily that for cost to be for the DOL’s, by assuming or or into the reading the employer” regu- benefit of under that record facts that are undisputed simply lation, fall literally it must within “tools both, there, opinion can the majority However, of the trade” term.21 the DOL reach clearly incorrect conclusion. reasonably, permissibly, therefore majority regulation Because the uses its own eccen- using reads its “tools of the tric methodology, pre- merely rather than that “example” trade” as the kind Court, Supreme scribed it reaches are employer’s costs that “for the bene- conclusions, plain erroneous which it in turn fit.”22 meaning regulation AssistanceBulletin2009_2.htm ("The Majority Op. 19. 399-400. fact that specifically does not 531.31 address trans- 20. Id. at 400. portation, visa and reсruitment fees for tem- porary workers is irrelevant Majority Op. 21. 400-01. analysis. regulation gener- sets forth the See, Division, Wage prohibition against e.g., al and Hour kick-backs has one Labor, trade; relating Dep't example Field Assistance Bulletin tools of No.2009-2, (2009), n. at 11 available at does not indicate that kick-backs for other http://www.dol.gov/whd/FieldBulletins/Field employer expenses permissible.”); En Here, bor detrimental to the interpre- [that are] DOL’s conditions is the same.23 the of the minimum standard of falls well within the maintenance regulation tation of its health, necessary efficiency for and interpretation living principle agency’s that ” “ (altera- general well-being ‘controlling’ unless of workers.’ regulations its own is original) tion in (quoting or inconsistent with’ the U.S.C. ‘plainly erroneous 202(a))). That DOL’s regulations being interpreted.” Long regulations Is- the FLSA, Home, 171, regarding at 127 under the particularly land at U.S. Care omitted) (other requirement quotation wage marks whether the minimum S.Ct. 2339 Auer, 461, satisfied, are not in other repeated at 117 S.Ct. statutes (quoting U.S. Robertson, 905, or quoting regulations at does not detract from the turn 1835, regulations’ binding legal in turn effect. In Pow- quoting 109 S.Ct. 1215). Co., Bowles, Cartridge the at 65 S.Ct. ell v. United States 325 U.S. that to Supreme Court stated the extent Third, to majority opinion the refuses requirements the overlap FLSA’s with valid apply interpretations the DOL’s its statute, apply those of another we must regulations under the for the inac FLSA provisions long “compli- the so as both Immigration curate that and reason ance impos- [does make[ ] with one it not] (INA) Act and Nationality regula statutes comply sible to with the other.” 339 U.S. pay H-2A require employers tions 497, 519, 70 S.Ct. 94 L.Ed. 1017 costs, workers’ inbound but (1950). Here, no showing been there has speak do not to H-2B workers’ inbound that for impossible it would Decatur transportation or rea expenses. visa This comply regula- with both the INA and its soning recognize fails to that FLSA is tions and the minimum re- FLSA’s statutory a separate scheme with distinct quirements. Arriaga See v. Pac. Fla. regulations that given must be their own (11th Farms, L.L.C., 305 F.3d effect. The FLSA meaning and and Cir.2002) (“[T]he Supreme Court has stat- regulations represent a self-sufficient set employment overlap, ed that statutes when prevent rules meаnt “labor conditions apply higher requirement we are to of min detrimental to maintenance mutually unless the are exclu- necessary imum living standard sive. has There been no demonstration health, efficiency, well-being general impossible simultaneously here of workers.” 29 Bar U.S.C. See comply guest with both” worker Freight Sys., v. rentine Arkansas-Best (citation regulations, FLSA and footnote Inc., 728, 739, 450 U.S. 101 S.Ct. omitted)). (1981) (“The principal L.Ed.2d 641 con gressional purpose enacting any Fair there be doubt Lest Labor Act was pro wage requirements Standards of 1938 FLSA’s con- trol, majority’s authority tect all covered workers substandard own states as wages hours, oppressive working immigration ‘la- much. The cited nation- Sec’y employer employee Banc Brief for the of Labor as Amicus ment of must Plaintiffs-Appellees Support of provide Curiae in tools of trade which will be used (“The regulations 2010 WL 3049082 further specifically required perform- are state tools of such as the trade work, employer’s particular ance of the there primarily ... the convenience of the be a the Act in work- would violation of and, therefore, may not be included purchased tools week when cost of such wages.”). employee cuts into the minimum or required to be un- overtime him 531.35, pertinent part, 23. As 29 C.F.R. der the Act.” plainly example, require- "For it is a states: if H- ality describing employees effectively when the would regulations, bring costs employer state that “an program, wages 2B visa their below the FLSA minimum may deduc- subject to the FLSA not make wage in their first employ- work week of tions that would violate the FLSA.” ment. See, 655.22(g)(1). Id. e.g., C.F.R. acknowledges Bulletin that the (stating H-2B 655.17(g) regard with briefly opposite DOL advanced the inter- offer, wage the

workers “[t]he pretation, days for 98 beginning December offers, are multiple wage event that there 19, 2008, but notes that this inconsistent wage the ... range applicable offers interpretation was withdrawn on March than highest must not be less the 2009.25 Bulletin clarifies that the prevailing the Federal minimum wage, its past long-standing DOL reaffirms in- mini- wage, wage, State minimum or local terpretation as prevailing interpretation its throughout mum the dura- applicable why and it explains concludes the tion H-2B employment”). of the certified employer, employee, is the primary Fourth, majority simply opinion is beneficiary of visa transportation and costs stating mistaken in that we owe no defer- and necessary employ- incidental to the interpretations ence to the DOL’s its temporary ment of foreign workers.26 As regulations in its amicus brief and its responsibility for for recruiter 2009-2 Field Assistance Bulletin because workers, obtaining fees in the Bulle- they were filed or issued “after the events provides: tin question.”24 Both the Bulletin and the “The fact that a recruiter is essential to agency’s amicus brief demonstrate the securing of such a worker does not interpretations considered views and its Department dissuade the from requiring clearly own regulations DOL has —the expense; employer bear the rath on interpreted regulations studied and er, it underscores the classification of tempo- question of reimbursement of that payment as a cost allocable to the visa, rary foreign workers’ at employer.” Fed.Reg. 78037. The expenses and recruitment at least since Department continues to believe that circumstances, 1960. In such the Su- should employees pay not have a re adopted preme accepted Court has and program, cruiter access to visa agency’s interpretation, when even the employer primary because interpretation in docu- contained beneficiary Thus, of these costs. ments drafted after the case at bar was visa program both the Home, filed. Island Long See Care at FLSA, we employers believe that Auer, at (citing U.S. 127 S.Ct. 2339 responsible paying are the fees of 905). Similarly, 519 U.S. at 117 S.Ct. recruiters retain to recruit for Bulletin, in the 2009-2 Field Assistance eign provide workers access to the comprehensively the DOL sets forth job opportunity. See Rivera v. Brick past, present prevailing DOL’s inter- Ltd., Group, man WL at regulations: employ- pretation of its (E.D.Pa.2008) (because H-2B *13-14 trans- responsible paying ers required employees portation, recruitment and to use visa of H-2B employees shifting particular company, where these was Majority Op. 401-02. 24. whd/FieldBulletms/FieldAssistanceBulletin 2009_2.htm. Division, Dep’t Wage and Hour Labor, No.2009-2, Field Bulletin Assistance 9-12. 26. Id. at (2009), http://www.dol.gov/ at 5-6 available The agency’s interpre them vanee this ease. to reimburse where tation —in its Bulletin amicus brief —of fees reduced below

recruiter minimum).27 prin the falls the “regulations well within the FLSA ciple agency’s that an of interpretation its states, Thus, the as the Bulletin regulations ‘controlling’ own unless regulations— of its interpretation DOL’s or with’ ‘plainly erroneous inconsistent (i) the plaintiffs’ when prevailing both regulations being interpreted.” Long Is actions in 2005 and 2006 FLSA accrued Home, 171, land at 551 at 127 Care (ii) court’s at the time this en banc and (other omitted) quotation S.Ct. 2339 marks in employers decision rendered 2010— Auer, 461, 117 519 U.S. at S.Ct. (quoting visa, transporta- to required are bear 905, Robertson, quoting in turn 490 U.S. at costs of tem- tion and recruitment 1835, 359, in turn quoting 109 S.Ct. workers, shifting if those costs to porary 1215).28 Bowles, 414, at 325 U.S. 65 S.Ct. wages their employees effectively reduces Fifth, majority efforts opinion’s the FLSA minimum below employment. distinguish underlying principles week of There- that first work fore, long-standing govern applied by that case from application of DOL those Pa- interpretation present Arriaga to the case would be Eleventh Circuit v. Florida (11th L.L.C., Instead, Farms, improper. 1228 neither retroactive nor 305 F.3d cific Cir.2002), majority’s superficial to defer to the are without mer- refusal and effect, It prevailing interpretation, it. is true that the Eleventh Circuit DOL’s day performed plain language analysis with the withdrawn 98 a direct supplants 531.32, 531.35, interpretation §§ that has rele- of 29 rather than aberrant no C.F.R. employer’s at 12. 27. Id. were was the same benefit Thus, then as it is now. we are not interpreta two to choose between different majority opinion's suggest 28. The efforts a regulations tions More of the in this case. retroactivity problem in the application either over, above, to, as noted the DOL’s decisions interpretation of the DOL's in the Bulletin or times, interpretations its of not enforce its interpretation in the its amicus brief are regulations, way meaning in no Op. altered or Majority without merit. See 401-02 & import interpretations, of those which created upon n.9. This case does not call us tо decide right a the Hotel to have arguable retroactivity Workers an issue. Under 29 255, expenses right appeal at issue in this reimbursed. employee's U.S.C. of action 790.18(a). against underpayment his 29 C.F.R. The cases cited of upon majority opinion, Bradley employer's accrues v. School Board of Richmond, 696, 715-17, of the 416 U.S. 94 violation FLSA. Unexcelled Chem. S.Ct. Cf. States, 59, 65, 2006, (1974) Corp. (holding v. United 345 U.S. 73 L.Ed.2d 476 40 (“We 97 "an appellate apply S.Ct. L.Ed. 821 conclude the law must decision,” 'the cause accrued’ of action ... when effect at the time it renders its employed.”); Riley application the minors were v. a Dow unless such would work mani Corning Corp., F.Supp. injustice statutory fest there is direction or Landgraf (M.D.N.C.1991) (stating plaintiff’s legislative history contrary), claim un and Products., der the FLSA accrued when he denied Film was USI 511 U.S. v. (4th (1994) (hold wage), aff'd, proper F.2d his S.Ct. 128 L.Ed.2d 229 Cir.1993) Thus, decision). (unpublished ing provisions Rights table Act the Civil rights right against creating compensato the Hotel Workers’ action recover alleged ry damages punitive Decatur because of its FLSA viola for certain violations 2006; VII, early providing by jury accrued tions in 2005 and of Title for trial if claimed, timely brought damages apply the workers this suit on Au are did not interpretation gust pending appeal Title The DOL’s VII case on when the foreign temporary retroactivity grounds), work enacted on statute was visa, transportation inapposite are ers' recruitment costs to this case. reading “By of the inter participating a deferential DOL’s in the ... program, the here, applied following I have pretations as [employers] created the need for these visa However, Supreme costs, Court’s eases. which are not the type expense Amaga interpretations reg court’s permitted pass on to the” ulations are almost identical to the DOL’s workers. Id.

interpretations. The Eleventh Circuit The Eleventh Circuit did hold that the apparent concluded that “it is that the line recruitment fees at issue in that case did is drawn” between that are for not need to be Arriaga, reimbursed. 305 the benefit of the and those However, F.3d at 1244-45. this was only charged employee can to the be “based on the рrinciples agency “[b]ecause law employment-related whether not hold [employers] d[id] responsible personal a expense that would cost[s][are] for the fees.” at Id. 1245. living expense.” arise as a normal Arria Nonetheless, under the Eleventh Circuit’s ga, at provide 305 F.3d 1243. “Uniforms logic, had the recruiters been found to be dividing illustration of this line. employers’ agents, as the Hotel Work- uniforms,’ ‘Charges for rental when re ers in the instant case allege and adduce quired by the employment, are considered show, evidence to the court would have primarily to be for the benefit the em held that recruitment costs also must be 531.32(c)[,]” § ployer!,] 29 C.F.R. because reimbursed. It would have been an ex- they would not arise from normal living. pense incidental to and incurred for the contrast, By Id. at 1243-44. “if the em employers. benefit of the ployer merely prescribes general type of majority ignore also would have us ordinary basic clothing street to be worn the entirety Arriaga because it address working permits while variations in H-2A workers; es rather than H-2B “H- dress[,] garments details of chosen 2A” denoting guest that the at workers would not be uniforms ... considered issue were agricultural work, involved in primarily [are] therefore not for the bene rather non-agricultural than work for employer” fit of the expense as their would which H-2B visas are issued. 8 analogous typical to a C.F.R. living expense. 214.2(h)(1)(h) (citations omitted) (first (distinguishing Id. at 1244 H-2A from altera H-2B original) (quoting Ayres tion v. workers based on 127 Rest. whether (S.D.N.Y. 305, Corp., 12 F.Supp.2d performing “agricultural were work of a 1998), quoting nature”). in turn Dep’t temporary of Labor or seasonal Yet this Wage & Hour Operations Field Handbook argument fails to recognize relevant cases 30c12(f)) omitted). (quotation marks contradictory facts. Specifically, the Eleventh adopted applied Circuit has In light plain language this reading of Arriaga’s reasoning the H-2B context regulation, the Eleventh Circuit held as well. See Morante-Navarro v. T&Y guest workers’ inbound Straw, Inc., 1163, 1165-66 Pine 350 F.3d & “transportation ‘an cost[s][are] incident of (11th Cir.2003). 2n. So have several dis and necessary employment,’” as trict courts. See Rosales v. Hispanic Em “emрloyment necessitates one- LLC, ployee Leasing Program, No. 1:06- transportation time paid.” costs be Arria- (W.D.Mich. CV-877, 2008 WL 363479 ga, Feb. 305 F.3d at 1242 (quoting 29 C.F.R. 2008) (c)). 531.32(a), Therefore, (unpublished); Rivera v. Brick these costs Ltd., 05-1518, Group, man Civ. No. employer. must be borne Id. at (E.D.Pa. 2008) WL 81570 Similarly, 1242-43. the “visa costs Jan. (unpub here lished); by” were employers’ necessitated v. Express use Recinos-Recinos For Inc., guest program. 05-1355, worker Id. at estry No. A. Civ. 2006 WL 2006) (un- at ‘kickbacks’ like those (E.D.La. alleged context of *14 Jan. at in 2008.” its announcement Further, reasoned issue here was there is no published). above, the quoted H- 402. As distinguish Majority Op. between on which basis “an stated that opinion letter H-2B workers. DOL’s 2A and H-2A/H-2B trans- relatively pays new one. The his or her own employee who distinction be reimbursed to the ex- promulgated were portation issue must programs were week of H-2A and H-2B received the first when the tent See C.F.R. costs and the same. less the employment one 531.35; Krebs, 531.32, M. 531.30, Glen all §§ the minimum total less than Be, Not To Fed. Law. H-2B or Opinion 56-Jul Let- Wage-Hour hours worked.” Arriaga (2009). Therefore, added). should be ter, (emphasis dated Nov. precedent and the pertinent recognized presented precise That is the circumstance understood as majority should be opinion majority’s case. The statement justification. split a without creating circuit deductions, speaks letter to not this Moreover, importantly, most perhaps reimbursements, quoted is belied the Arriaga’s analy- approved of the DOL has Majority Op. 402 n.10. So is language. being as consistent regulations of the sis inter- majority’s contention that the own, the criticizing panel with its while specific limited to the facts pretation is in conflict being in this case as opinion in letter —the inter- presented opinion the regulations.29 with the only specific not refer to the pretation does employer of the that case but employees Sixth, majority incorrectly asserts Majority Op. employee generically. to an spe- Department first time the “[t]he in the 402 n.10.30 cifically spoke to reimbursement Division, Jersey judgment of New en- Wage Dep't for the District and Hour 29. No.2009-2, 1979, Labor, years more than seven Bulletin tered in October Field Assistance 9, (2009), Wagе- http://www. written. See n. available at before the letter was at 11 5 Letter, 28, dol.gov/whd/FieldBulletins/FieldAssistance Bulletin2009_2.htm. Opinion dated Hour Nov. 1986 Inc., Ass’n, (citing Serv. Marshall v. Glassboro 78-377, (D.N.J. WL Oct. No. argues majority the 1986 letter 30. The also 1979)). ignored “post a be because it was hoc should effort to discredit the 1986 In a further agency's position, un- rationalization” of letter, majority also falls back on some of worthy Majority of deference under Auer. arguing platitudes, the letter should its earlier Auer, Op. (citing 519 U.S. at 402 n.10 H-2A, disregarded because it addressed 905). why majority S.Ct. It is unclear H-2B, workers and it is "doubtful not quotation from Auer thinks this out-of-context diligent employer have even the most could language applicable to the 1986 letter. The readily the letter to know his or accessed” Auer reflected the Court's concern with might responsibilities and thus "not know her agen- to an whether and when it should defer pay he or she was to the amount” adopted purposes cy position for the Majority Op. employees. 402 n.10. bar, litigation providing deference at not with However, above, the as described agency position decades before H-2A/H- to an taken Auer, majority drawn 2B distinction litigation present was initiated. one, way supported by majori- (noting false in no that the U.S. at 117 S.Ct. Moreover, ty's analysis. as al- citations or agency “post was fear of hoc rationalization” noted, ready employer not have re- possibly deferring an need response to the Court to employees' upon letter to discern its agency ‍‌‌‌‌​‌​​​​‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌​​‌‌‌‍in the case lied an amicus brief submitted bar, transportation, agency interpre- rights reimbursement deferring prior to Moreover, (alteration omitted)). expenses, as there were and recruitment visa tations regula- interpretations and developed other letter was numerous notion that the 1986 employees’ rights re- supporting to the response litigation appears tions baseless. sought in the instant case. the letter are to a District Court imbursements citations in Moreover, merely the 1986 letter is enforce certain or interpre- clear and accurate illustration of the tations in partiсular periods cases or position consistent regarding DOL’s should in no way be understood as altering meaning Wage-Hour of the FLSA. Opin- interpretations the DOL’s of the regula- Letter, ion dated Nov. The reg- 790.18(a), (c). tions themselves. Id. ulation, 531.35, promulgated 29 C.F.R. in Enforcement is a discretionary agency ac- 1967, prohibits “kick-backs” from the em- EPA, tion. See Massachusetts v. 549 U.S. ployee that reduce the 497, 527, 127 S.Ct. 167 L.Ed.2d 248 employee’s wage mini- statutory below the (2007) (“As we have repeated time and above, mum. As cited the DOL has also again, agency has broad discretion to issued numerous other interpretations of choose how best to marshal its limited FLSA, which, prior all of personnel resources and to carry out its consistent with the 1986 opinion letter. delegated responsibilities.”). Under The DOL’s amicus brief this court and FLSA, plaintiffs these have an indepen- its 2009 Field Assistance Bulletin state dent right of action that is anchored agency’s that the interpretation reg- of its rights statute’s responsibilities, ulations has been except consistent for the properly interpreted by the Department of 2008-2009; day period at the turn of Labor. See 29 U.S.C. 255. and these consistent interpretations are Seventh, the majority contends that the fully worthy of deference under the Su- Hotel “proffered Workers no evidence to preme Court’s decisions. support the concept that Decatur required majority To the extent that the means to any recruitment fees to be to the suggest unequivocal that these clear and foreign recruiters or that it required the agency interpretations should be disre- Workers use these apply recruiters to not, garded times, because the DOL was at Decatur.” This is not true. Even under “enforcing” its interpretations, Majority majority’s incomplete and distorted 402, an Op. argument is also errone- order, view of the district court’s the ma- requires ous. Auer give us to deference to jority recognizes that the district court agency’s interpretations of regula- explicitly stated that additional discovery tions, not to its practices. enforcement was before it could resolve Home, Long See Island Care at 551 U.S. the disputed issues of fact pertaining to 171, Auer, at 127 (quoting S.Ct. 2339 519 alleged Decatur’s liability for the reim- 461, 905). U.S. at 117 S.Ct. The DOL’s visa, bursement of transportation and re- regulations, place 1947, in since state that cruitment above, costs. As demonstrated practices “administrative and enforcement the plaintiffs introduced numerous declara- policies ... differ from [the] decisions or tions suggesting that the recruiters acted agency views which the has set forth in its as the defendants’ agents charged fees orders, regulations, rulings, approvals, or for their recruitment services. Conse- 790.18(a). interpretations.” § 29 C.F.R. quently, here, 790.18(c) (“An majority errs in § addition See also id. administra- above, to its errors discussed practice failing tive policy may, enforcement under certain remand this circumstances at case order to variance allow the agency’s with the current district court interpretation of to consider and decide this law.”). Thus, that the DOL chose not controverted factual issue. majority’s concern imposes the minimum wage requirement a minimum upon wage might be difficult to calculate is of no the defendants-employers and it must be sat- Majority Op. moment. 402 n.10. The FLSA isfied. Motor court.” Yamaha fied the district reasons, but respectfully I For these Calhoun, 199, 516 U.S. v. majority opin- Corp., U.S.A. from the dissent vigorously (1996) 619, Secretary’s 133 L.Ed.2d to the 116 S.Ct. to defer refusal ion’s v. interpretations Corp., Motor U.S.A. (quoting Yamaha DOL’s reasonable Calhoun, own valid S.Ct. agency’s (internal majority’s (1995)) order to quotation and from the FLSA L.Ed.2d 999 judgment omitted). final to enter a court But included within the district to be marks unpaid claims dismissing plaintiffs’ order, at least be question must a trial on the Note, without Interloc- to that order. See material merits. Federal Courts Un- utory Appeals in the 1292(b), L.Rev. 88 Harv. der 28 U.S.C.

III. “scope (stating that the jurisdiction has appeals court of all material to This review issues [includes] 1292(b) Yamaha, to address quoted under 28 U.S.C. question”), order applies to H- the FLSA of whether As this issue 116 S.Ct. 619. 516 U.S. workers; jurisdiction not have 2B does it in v. In- succinctly put Adkinson the hotels violated address whether “An un- appeal ternational Harvester Co.: FLSA, hotels owe the 1292(b) or whether certi- is from the der 28 U.S.C. transportation, reimbursement cоurt, workers the district not from fied order of because expenses, visa or en- may have been any other orders part of the merits those issues 208, 211 n. 4 in the case.” 975 F.2d tered material order case and are not Cir.1992) (5th (citing States v. United simply by the district court issued 669, 677, 107 S.Ct. Stanley, 483 U.S. to H-2B work- applies that the FLSA held (1987)). jurisdiction, “Our 97 L.Ed.2d ers. ques- although precise not confined court, con- by the district tion certified 1292(b) provides, pertinent in

Section particular appealed order fined to the part: at (citing Stanley, 483 U.S. from.” Id. in a judge, making in a district When 3054). short, “In a certified on S.Ct. ap- not civil action an order otherwise 1292(b), section interlocutory appeal under section, under this shall be pealable jurisdiction only questions to hear we have order involves a opinion such the lower court’s certi- that are material to which of law as to controlling question States v. (citing fied order.” Id. United ground for differ- there is substantial n. 901 F.2d Corp., Fleet Factors and that an immediate opinion ence of (11th Cir.1990)). may materially appeal from the order ultimate termination of the advance the Here, by the district the order issued in writing litigation, he shall so state guestwork that “H-2B simply court holds Appeals ... order. The Court protections entitled to the ers are discretion, permit in its may thereupon, FLSA,” v. Decatur Castellanos-Contreras order, if to be taken from such appeal L.L.C., Hotels, F.Supp.2d days it within ten application is made to (E.D.La.), Castella part amended .... entry of the order after the Hotels, L.L.C., v. Decatur nos-Contreras 1292(b). (E.D.La. 28 U.S.C. 06-4340, 2007 WL 6867035 No. 2007) is, that (unpublished) July 1292(b), appeals a court of can Under —that peri to H-2B workers applies the FLSA any question jurisdiction over “exercise reading of A fair and common-sense od. included the order con- that is within that this opinions court’s shows of law identi- district controlling question tains the of law all simple holding the district to have us resolve the legal threshold issue intended, judge and all the defen court applicability FLSA before expending originally intended —that this court dants significant judicial further trial court re- affirm or review and either reverse on sources. interlocutory appeal. reading No other Because the order the district court cer- opinions the district court’s makes for our only tified review was the thresh- judge repeatedly sense. The district said legal old ruling that the FLSA applies to deciding that he was not whether the de workers, H-2B questions of the defen- FLSA, fendants had violated the or wheth alleged dants’ violations and reimburse- er the defendants owed the workers reim obligations ment plainly are not material any transportation, bursement of visa or or even relevant to the certified threshold expenses. Id. at 572 n. 5 legal order. Once we decide that the dis- (“[W]hether or not the Defendants have trict correctly court held that the FLSA

violated the FLSA is a factual issue that is applies, that decision will stand no matter summary appropriate judgment.”); not what the ultimately district court decides Castellanos-Contreras, 2007 WL in respect to whether there were violations (“[T]he *2 ... Court refus[es] deter or whether reimbursements are due. mine, law, as a matter of whether or not Thus, questions going these to the merits the FLSA has been violated this case particular of this simply case are not mate- ”). Further, .... the district court refused rial or relevant question to the threshold stay proceedings pending further reso of whether applies FLSA to H-2B interlocutory appeal, lution of this in but workers. Accordingly, the violations and discovery proceed stead unin “allow[ed] reimbursement issues are not material to Castellanos-Contreras, hibited.” 2007 WL the district court’s certified order and are experienced at *2. As an district properly Adkinson, before us. See judge, evidently anticipated court he F.2d at 211 n. 4. affirm this would his order that the to this applies FLSA case and that he light, present Viewed case is try would have merits issues of the ultimately a simple one in which the certi- case, non, and, including violations vel if question fied order and the certified violations, there were reimbursements vel virtually coterminous and identical. The very competent judge, non. As a trial he order that the district court certified was requested would not have certified or that workers; that applies the FLSA to H-2B we review issues that he yet had not tried question that the district court certi- decided, viz., whether the defendants fied is whether the H-2B applies FLSA to and, so, had violated the FLSA if whether However, workers. compli- even in more they plaintiffs owed the reimbursements. cated cases in which the certified order plain His intention was to issue order question closely and the certified are not deciding legal “threshold issue in this similar, this court and have others adhered case, namely applies whether the FLSA to to the same principle ap- that courts of non-agricultural guestworkers brought to 1292(b) jurisdiction peals § have under pro the United States under the H-2B only questions hear that are material 567, and, gram,” F.Supp.2d at if this the district court’s certified order. affirmed, court to proceed to trial on the instance, For in v. Link Mercedes-Benz merits. He did not intend to shirk his America, Inc., North the Third duty Circuit and allow this court to decide the of 1292(b) merits, refused to on including case on the violation consider interlocu- issues; merely tory reimbursement he appeal intended the issue of “whether there 4) at 211 n. were “not material to the juries during utilized id. may separate be of a bifurcated order” and hence “not liability damage phases District Court’s us,” of the district portion at 211 n. 4. The properly trial” because before id. question that addressing court decision principle court in Adkinson followed the “definitive, effective, pos- and in a was not jurisdiction only have to hear “we affirmance or reversal.” capable ture lower questions that are material to the (en (3d Cir.1977) 860, 861, 863 F.2d ques- court’s certified order.” Id. The banc). about opined court had The district us” properly tions were “not before in a bifurcated inefficiencies inherent question not material to the the dis- were alternatives. contemplated and had trial contribu- trict court had decided: whether However, no it had “entered Id. at 863. un- indemnity principles applied tion and juries separate and wheth- directing order nothing law to do with Mississippi der had pure do so matter [would was] er given timely notifica- party whether had the interlocu- at the time of speculation” party’s tion or whethеr a breach war- Therefore, Id. at 864. tory appeal. caused harm to an- ranty proximately had deciding appellate court found party. other Id. at 211-12 & n. only question separate juries would not case,' In the instant the issues of wheth- 1292(b), under but would be improper er the defendants violated the FLSA and jurisdic- of its an unconstitutional exercise they any whether owe reimbursements are judgment would be “an tion because its just prox- like the of notification and issues advisory opinion.” Id. at 864-65. They in are not imate cause Adkinson: Here, happened all that has with this properly before us because are not is that the district court has deter- case material to the district court order from H-2B applies the FLSA mined interlocutory appeal taken. which this was Therefore, foreign temporary workers. The district court did not need to decide determination, entirely reach an distinct subsidiary those issues order decide court, not resolved the district such as application whether the FLSA has whether the defendants are under liable case, judge explicitly all to this and the visa, transportation the FLSA for the repeatedly wrote that he was deciding sought by recruiter fee reimbursements only applied. whether the FLSA Just plaintiffs, improper would be Adkinson, ap- the additional issues the 1292(b). question That is neither con- pellants properly seek to raise are not within, tained nor material to our review- before this court. deciding of the order ing appealed only applies Candies, that the FLSA Again, Withhart v. Otto foreign temporary (5th H-2B workers. L.L.C., Cir.2005), 431 F.3d 840 our recognized the “limited” nature of Likewise, Adkinson, recog- our court appellate jurisdiction under “[o]ur nized that the district court had decided 1292(b)” § and did not review additional only legal denying one issue its order questions of law and fact that went mixed summary judgment (namely, “whether “ ” beyond ‘controlling question of law’ Mississippi Supreme apply Court would that the district court’s order had decided. indemnity of principles contribution and 1292(b) § (quoting Id. at 841 28 U.S.C. implied warranty merchant- breach Malbrough Equip. Corp., v. claim,” Crown 211-12), ability 975 F.2d at (5th Cir.2004)). legal F.3d that therefore determined the other issues matеrial to the district court’s questions appellant sought appeal raise on cause, general maritime law (timely proximate notification and order were “whether by prop- ripe suits vessel owners for factual issues is not for recognizes review under 1292(b). seamen,” § erty damage by negligent caused See id. so, if “whether the Jones Act or the No one can reasonably dispute that the FELA such claims. Id. at 842- precludes” district court has never tried the merits of emphasized therefore 43. This court case, present which include the issues “only” wheth- jurisdiction

it had to review of FLSA violations and reimbursement vel claim, appellant er the could assert such non; judge fact stated re- succeed, and not whether the claim could trial; peatedly they ripe were not for i.e., defendant seaman whether was that he therefore stay refused to the trial liable. Id. proceedings and allowed full discov- case, likewise, In this the district court ery proceed preparation for trial. “controlling question decided a of law” majority opinion’s argument that the (whether H-2B applies the FLSA work- district court somehow decided or issued ers) interlocutory in the order certified for an order on the merits of the case is appeal; expressly did not decide the simply an unfounded assertion that is with- question concerning mixed of law and fact only out merit. The legal concrete order actually whether the defendants are liable by made the district court is the order that visa, reimbursing and the applies FLSA to H-2B workers such plaintiffs costs to the plaintiffs as the in this case. That is the Withhart, the FLSA. Just as “our re- only order certified the district court to view is limited” to the certified order hold- court in interlocutory appeal. Be- ing applies that the to H-2B FLSA work- judge cause no on appears this court ers; jurisdiction we do not have to reach disagree with the order that the FLSA subsequent, questions immaterial con- applies workers, to H-2B it is this court’s cerning whether the defendants violated duty to affirm that order and to remand law and are hable reimburse- the case to the district court for trial on mеnts. merits, including whether the defen- 1292(b) § purpose and,

“The manifest is to so, dants have violated the FLSA if support appeal from orders cannot whether owe reimbursements to the otherwise be reviewed final judgment plaintiffs.

appeal interlocutory appeal under some 1292(b).” provision §

other 16 Charles al., Wright

Alan et Federal Practice and (2d 3929.1, § Procedure at 400 ed. 1996 & reasons, respectfully For these I but Supp.2010). It pur is self-evident that the emphatically dissent. 1292(b)

pose of is not to undermine 28 requirement

U.S.C. 1291’s of final judg

ment on the merits of a may case before it appealed right. require “The basic interlocutory

ment appeal under 1292(b) is that the district court have

made an order” that is not ap otherwise

pealable, but has “some concrete effect.”

Id. at 416-17. A district court’s

mere speculation consequences on the possible

one trial disputed resolution of “the notes fees.14 regula- the DOL interprets permission, 2008 H-2B final rule that the December always meant having here as tions at issue from the withdrawn is distinct [which period three-month for the brief (except employers and their preamble] prohibits 2009) 2008 and March between December receiving payment agents seeking from or are an and visa fees transportation requires employ- for recruitment costs and necessary employ- H-2B incident of contractually ers to forbid ment, repay em- requiring employers recruiters from seek- labor contractors or costs, if failure advancing prospec- those ployees ing receiving payments connection, the In this employees.”15 tive employee’s pay would reduce an ‍‌‌‌‌​‌​​​​‌​‌​‌‌‌‌​‌‌​‌​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌​​‌‌‌‍to do so employee's foreign away home travel from the at 11 n. 5. This statement Fifth Circuit.” Id. change interpretation temporary employment, deprive does not the DOL's controlling Supreme employee’s permanent said in em- force. As the domicile for Home, Moreover, have no Long ployment. Care at involves "[w]e Island this situation assertion, interpretation suspect Department [this] ... employer's reason and the certification, merely post past rationalizalio[n] hoc there are not of Labor's action, agency not reflect the or that it does perform U.S. workers available sufficient judgment on the agency’s fair and considered weighing all the factors rele- the work. After here, Where, agen- question. matter other costs inci- vant to

Case Details

Case Name: Castellanos-Contreras v. Decatur Hotels, LLC

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 4, 2010

Citation: 622 F.3d 393

Docket Number: 07-30942

Court Abbreviation: 5th Cir.