MAINE FOREST PRODUCTS COUNCIL, PEPIN LUMBER, INC., and STEPHANE AUDET v. PATTY CORMIER, in her official capacity as Director of the Maine Bureau of Forestry, and AARON FREY, in his official capacity as Attorney General for the State of Maine
No. 22-1198
United States Court of Appeals For the First Circuit
October 12, 2022
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
Before Barron, Chief Judge, Selya and Howard, Circuit Judges.
Jason D. Anton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, Thomas A. Knowlton, Deputy Attorney General, Chief, Litigation Division, and Sarah E. Coleman, Assistant Attorney General, were on brief, for appellants.
Nolan L. Reichl, with whom Joshua D. Dunlap, Kellie MacDonald, and Pierce Atwood LLP, were on brief, for аppellees.
I
The logging industry is a fixture of northern Maine. In June of 2021, the Maine legislature enacted Public Law 280, titled “An Act Regarding the Transportation of Products in the Forest Products Industry” (P.L. 280). The relevant portions of the law, codified at
The sparse legislative history of P.L. 280 indicates that the Maine legislature‘s primary concern was the federal government‘s issuance of H-2A visas to Canadian truck drivers, who would then secure employment moving Maine logs. Consistent with this emphasis, P.L. 280 states that a “‘[r]esident of the United States’ does not
The parties direct our attention to testimony presented to the legislature‘s Joint Standing Committee on Taxation by one of the law‘s principal sponsors, Senator Troy Jackson. Senator Jackson asserted that “Maine loggers and truckers face an uphill battle competing against their counterparts in Canada, who benefit from a favorable exchаnge rate and government-sponsored health insurance.” This competition, he continued, is facilitated by the federal government‘s practice of issuing H-2A visas to Canadian truck drivers who transport logs within Maine—a practice that Senator Jackson claimed “has depressed wages for Maine people working in the woods and handed large landowners extraordinary power in the industry.” According to Senator Jackson, granting H-2A visas to Canadian truck drivers to transport Maine logs within the state is a “misuse of the H-2A program” and causes “injustice tо Maine workers.”2
On October 7, 2021—just a few days before P.L. 280 was to take effect—this action was brought. Maine Forest Products Council (a logging industry trade association), Pepin Lumber, Inc. (a Maine logging company), and Stéphane Audet (a Canadian truck driver working for Pepin Lumber under an H-2A visa) jointly filed suit in the United States District Court for the District of Maine against the Director of the Maine Bureau of Forestry and the Attorney General of Maine (together, the State). Their complaint, which sought injunctive and declaratory relief, alleged that P.L. 280 is preempted under the Supremаcy Clause of the United States Constitution and violates the Equal Protection Clauses of both the United States and Maine Constitutions.
The same day, the plaintiffs (whom we shall sometimes refer to collectively as “the Loggers“) moved for a temporary restraining order (TRO) and a preliminary injunction against the enforcement of P.L. 280. During a conference with counsel that day, the TRO motion was dismissed following the State‘s agreement that it would not enforce P.L. 280 until further order of the district court. See Me. Forest Prods. Council, 2022 WL 504379, at *1. The parties—agreeing on the relevant facts—subsequently briefed the preliminary injunction motion. See id. at *1 n.1. On February 18, 2022, the district court preliminarily
This timely appeal ensued. In it, the State challenges only the substance of the preliminary injunction, not its breadth or scope. We limit our review accordingly.
II
We begin with a cautionary note: “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain this remedy, the moving parties must show that the balance of four factors tips in their favor: a “likelihood of success on the merits; whether and to what extent the movant[s] will suffer irreparable harm in the absence of preliminary injunctive relief; the balance of relative hardships . . . ; and the effect, if any, that either a preliminary injunction or the absence of one will have on the public interest.” Ryan v. U.S. Immigr. & Customs Enf‘t, 974 F.3d 9, 18 (1st Cir. 2020).
We review a district court‘s grant of a preliminary injunction for abuse of discretion. See We the People PAC v. Bellows, 40 F.4th 1, 9 (1st Cir. 2022). Under this multifaceted standard, “we review the district court‘s answers to legal questions de novo, factual findings for clear error, and judgment calls with some deference to the district court‘s еxercise of its discretion.” Akebia Therapeutics, Inc. v. Azar, 976 F.3d 86, 92 (1st Cir. 2020).
On appeal, the State has challenged only the district court‘s determination that the Loggers have shown a likelihood of success on the merits. We have made it pellucid that this is the factor that “weighs most heavily in the preliminary injunction calculus.” Ryan, 974 F.3d at 18. It is, moreover, the “sine qua non” for preliminary injunctive relief. Id. (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)).
The district court found that the other three factors were compatible with the issuance of a preliminary injunction. See Me. Forest Prods. Council, 2022 WL 504379, at *29-31. On appeal, the State has not advanced any arguments relevant to those factors, and we deem any such argument waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
The upshot is that, for present purposes, the preliminary injunction rises or falls on the plaintiffs’ likelihood of success on the merits of their claims. It is to that singular issue that we now turn. And although the district court found that the Loggers’ challenge to P.L. 280 was doubly likely to succeed—on the separate grounds of preemption and equal protection—it is unnecessary for us to address both aspects of the district court‘s decision.3 See Toll v. Moreno, 458 U.S. 1, 9-10 (1982) (affirming lower court‘s preemption holding and declining to address alternative equаl protection holding). We conclude that P.L. 280 is likely preempted and—with that conclusion as the linchpin—we hold that the plaintiffs have
carried their burden of showing a likelihood of success on the merits.
Our system of overlapping federal and state sovereignties gives rise to “the possibility that laws can be in conflict or at cross-purposes.” Arizona v. United States, 567 U.S. 387, 399 (2012). The constitutional rule in such cases, embodied in the Supremacy Clause, makes federal law “the supreme Law of the Land,” which overwhelms “any Thing in the Constitution or Laws of any State to the Contrary.”
Preemptiоn has three branches: “express,” “field,” and “conflict.” Id.; see Consumer Data Indus. Ass‘n v. Frey, 26 F.4th 1, 5 (1st Cir. 2022). In this instance, the parties have focused their arguments solely on conflict preemption—specifically, the offshoot of conflict preemption called “obstacle preemption.” We follow their lead.
Obstacle preemption is implicated when “the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.‘” Arizona, 567 U.S. at 399 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Cases of obstacle preemption (like all forms of prеemption) fit into the following mold: “Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.” Murphy v. Nat‘l Collegiate Athletic Ass‘n, 138 S. Ct. 1461, 1480 (2018). “What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 373 (2000).
“In all pre-emption cases, and particularly in those in which Congress has ‘legislated . . . in a field which the States have traditionally occupied,’ we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.‘” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (alteration in original) (citation omitted) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). The presumption does not apply, though, “when the State regulates in an area where there has been a history of significant federal presence.” United States v. Locke, 529 U.S. 89, 108 (2000); see Brown v. United Airlines, Inc., 720 F.3d 60, 68 (1st Cir. 2013). And whether or not the presumption against preemption applies, the burden of proving preemption lies with the parties asserting it (hеre, the plaintiffs). See Capron v. Off. Of Att‘y Gen. of Mass., 944 F.3d 9, 21 (1st Cir. 2019).
The Loggers argue that the presumption is inapplicable here because P.L. 280 seeks to regulate immigration—an area traditionally of federal concern. This argument is not without some force, but—for ease in exposition—we assume (albeit without deciding) that the presumption against preemption applies in this case.
B
Having sketched the analytical framework governing the Loggers’ claim of obstacle preemption, we proceed to describe the H-2A program with which P.L. 280 is alleged to conflict. Under the Immigration and Nationality Act of 1952 (INA), as
(A) there are not sufficient workers who are аble, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.
Congress has authorized the Secretary of Labor to promulgate regulations implementing the H-2A program. See
The regulations also ensure that the open agricultural jobs can be filled by qualified U.S. workers without depressing their wages or working cоnditions. For example, “[e]mployers seeking H-2A certification are required to pay the higher of the Adverse Effect Wage Rate (AEWR), the prevailing wage, or the legal minimum wage.” Mendoza v. Perez, 754 F.3d 1002, 1008 (D.C. Cir. 2014) (citing
C
This tees up the question of whether P.L. 280 is an obstacle to the achievement of Congress‘s purposes in enacting the H-2A worker visa program and, therefore, preempted.
1
As classically formulated, the doctrine of obstacle preemption invites courts to assess a federal statute‘s “full purposes and objectives” in deciding whether the state law “stands as an obstacle” to their achievement. Hines, 312 U.S. at 67. In Arizona, for example, the Supreme Court held that a state law making it a crime for an unauthorized alien to apply for or perform work in the state was “an obstacle to the regulatory system Congress chose.” 567 U.S. at 406. After examining “the text, structure, and history” of the relevant statute, the Court concluded that “Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.” Id. The state law criminalizing that conduct was therefore preempted under the doctrine of obstacle preemption. See id. at 407.
Recently, thоugh, several Justices have questioned the wisdom and legitimacy of grounding preemption upon judicial “[e]fforts to ascribe unenacted purposes and objectives to a federal statute.” Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1907 (2019) (lead opinion of Gorsuch, J.). Such purposes are difficult to discern, these Justices argue, and finding preemption due to “hidden legislative wishes” risks “displacing the legislative compromises actually reflected in the statutory text“—thereby “displacing perfectly legitimate state laws on the strength of ‘purposes’ that only we can see, that may seem рerfectly logical to us, but that lack the democratic provenance the Constitution demands before a federal law may be declared supreme.” Id. at 1907-08.
Perhaps harboring concerns of this nature, the Court‘s recent cases have subtly reframed the obstacle preemption analysis as limited to cases in which “Congress enacts a law that imposes restrictions or confers rights on private actors” and “a state law confers rights or imposes restrictions that conflict with the federal law.” Murphy, 138 S. Ct. at 1480. In that vein, the Court glossed Arizona‘s holding, reasoning that the federal statute аt issue there “implicitly conferred a right to be free of criminal (as opposed to civil) penalties for working illegally, and thus a state law making it a crime to engage in that conduct conflicted with this federal right.” Kansas v. Garcia, 140 S. Ct. 791, 806 (2020).
Mindful of this subtle shift, we frame the question before us as follows: have the Loggers shown that they are likely to succeed in their claim that the federally enacted H-2A program confers a right on private actors (either explicitly or implicitly) that conflicts with P.L. 280‘s restrictions? As we shall explain below, we think that such a conflict is unmistakable and that, therеfore, the Loggers have made the requisite showing.
The text and structure of the H-2A statutory provisions reflect Congress‘s considered judgment that agricultural employers who cannot find qualified U.S. workers should be able to hire foreign laborers when specified criteria are satisfied. The system is responsive to the employer‘s immediate labor needs. For instance, the employer‘s application deadline cannot be “more than 45 days before the first date the employer requires the labor or services of the H-2A worker,” and the employеr must be notified of any deficiencies in the application and be given a chance to resubmit.
To be sure, an employer seeking to hire an H-2A worker must jump through hoops. This is because “Congress was concerned about (1) the American workers who would otherwise perform the labor that might be given to foreign workers, and (2) American workers in similar employment whose wages and working conditions could be adversely affected by the employment of foreign laborers.” Mendoza, 754 F.3d at 1017. Even so, Congress deliberately crafted the H-2A program as a last resort for employers who have demonstrated a specific, unfilled need for temporary agricultural labor that U.S. workers will not do (and when U.S. workers will be no worse off if foreign workers do it instead). Congress evidently decided that when an employer has run this gauntlet and made the required showing to federal authorities, the employer should have access to foreign labor rather than see its business prospects wither on the vine. We think it follows that Congress conferred a right, at least implicitly, on agricultural employers to hire temporary foreign workers when the H-2A criteria are satisfiеd.
The history of the H-2A program confirms this understanding. As originally enacted, the INA recognized a general H-2 category of nonimmigrant aliens “coming temporarily to the United States to perform other temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” INA, Pub. L. No. 82-414, § 101(a)(15)(H)(ii), 66 Stat. 163, 168. In this respect, the statute did not differentiate agricultural workers from other workers, and it contained no requirement for certification by the Secretary of Labor.4
All of this changed with the enactment of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. “Congress enacted [the] IRCA as a comprehensive framework for ‘combating the employment of illegal aliens.‘” Arizona, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). Amending the INA, section 301 of the IRCA established the H-2A agricultural worker program that we already have described. See 100 Stat. at 3411-17. According to the Senate Report, the purpose of
greater restrictions. S. Rep. No. 99-132, at 2 (1985); cf. Changes to Requirements Affecting H-2A Nonimmigrants, 73 Fed. Reg. 76891, 76891 (Dec. 18, 2008) (describing purpose of H-2A regulations “to provide agricultural employers with an orderly and timely flow of legal workers, thereby decreasing their reliance on unauthorized workers, while protecting the rights of laborers“). The H-2A program was thus conceived as a means of addressing the unmet seasonal labor needs of agricultural employers by conferring a right to hire foreign laborers under specified conditions.
Having given shape to this implicit federal right, the conflict with P.L. 280 becomes starkly apparent. P.L. 280 is a blunt intrusion on the impliсit federal right. Not by accident, it constitutes a direct and significant obstacle to achieving the H-2A program‘s clear and manifest objectives. The state law purports to forbid the employment of some of the very same laborers whom federal law authorizes to work after an exacting showing of need by their employers, in compliance with elaborate statutory and regulatory criteria.
It is difficult to envision a more perfect collision of purposes. P.L. 280 would nullify the implicit federal right of the employer to hire foreign laborers оn a temporary basis when—through a process established by federal law—federal officials have specifically determined that U.S. workers are unavailable for the job and unaffected by the competition. The state law thus rudely “interfere[s] with the careful balance struck by Congress.” Arizona, 567 U.S. at 406.
The State contends that federal law does not preempt P.L. 280 because the H-2A program incorporates state employment law such that the two work in concert. In support, the State cites a regulatory provision requiring the SWA to ensure that eаch job order in the clearance system includes an assurance by the employer that “[t]he working conditions comply with applicable Federal and State minimum wage, child labor, social security, health and safety, farm labor contractor registration and other employment-related laws.”
Yet, that interpretation is belied by the text of the regulation, which—at the outset—specifies that it is the “working conditions” of the job that must comply with relevant law. The regulation, then, does not encompass every law about employment (as the State would have us read it) but, rather, encompasses a more circumscribed universe of “employment-related laws” that pertain to working conditions. That obvious conclusion is bolstered by the ejusdem generis canon, which instructs that where “a more general term follows more specific terms in a list, the general term is usually understood to embrace any object similar in nature to those objects enumerated by the preceding specific words.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (internal quotation omitted). That is precisely the situation here: the specific types of laws listed in
What is more, we would not lightly adopt a reading of this regulation that would require federal officials to deny H-2A visas because of a state law specifically targeting the H-2A program. Such a reading would be in tension with the structure and purpose of the H-2A statutory provisions and would effectively give states a veto power over the federal program. The structure and purрose of the program argue persuasively against the existence of such a veto power. See
The State‘s final refrain is that P.L. 280‘s “goal of protecting Maine‘s domestic labor market” does not conflict with federal law but, rather, is “complementary” to the H-2A program‘s manifest concern with potential adverse effects on U.S. workers due to imported foreign laborers. The State claims that “Mаine‘s Legislature enacted the law based on its determination that there are sufficient local, domestic workers to fill these positions and that employment by non-domestic workers has an adverse impact on Maine wages and the Maine economy.”5
This claim will not wash. Even a state law that “attempts to achieve one of the same goals as federal law” may be preempted when “it involves a conflict in the method” of execution. Arizona, 567 U.S. at 406; see Amalgamated Ass‘n of St., Elec. Ry. & Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 287 (1971) (“Conflict in technique can be fully as disruptive to the system Congress erected as conflict in overt policy.“). P.L. 280‘s methods of protecting domestic workers are, in many important respects, at odds with the federal program‘s methods.
The H-2A process determines the availability of U.S. workers on a case-by-case basis and by floating a job order on the
market; it addresses adverse impacts on U.S. workers by setting minimum wage rates and working conditions; it lodges decisionmaking authority with the Secretary of Labor and the Attorney General; and it responds to employers’ labor needs by allowing the hiring of foreign workers as a last resort. P.L. 280 does none of these things, yet it attempts to override the specific H-2A work authorizations provided by federal law. The Supremacy Clause stands in its way.
III
We need go no further. Preliminary injunctions are strong medicine and should be dispensed with care. Here, however, the Loggers have carried their burden of showing (even assuming arguendo the applicability of the presumption against preemption) that the H-2A restriction imposed by P.L. 280 is likely preempted by federal law. Given this showing and given the district court‘s unchallenged determination that the other elements of the preliminary injunction calculus are consistent
Affirmed.