OVERDEVEST NURSERIES, L.P., APPELLANT v. MARTIN WALSH, IN HIS OFFICIAL CAPACITY AS UNITED STATES SECRETARY OF LABOR, ET AL., APPELLEES
No. 20-5163
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided June 25, 2021
Argued February 4, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01347)
Monte B. Lake argued the cause for appellant. With him on the briefs was Christopher J. Schulte.
Aaron S. Goldsmith, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. On the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, Glenn M. Girdharry, Assistant Director, and Matthew J. Glover, Sеnior Counsel to the Assistant Attorney General.
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit
WILKINS, Circuit Judge: Appellant Overdevest Nurseries, L.P. (“Overdevest“), is a plant nursery based in New Jersey. Overdevest has participated in the H-2A program since 1999, which allows it to bring in qualified foreign workers on temporary visas when there is a lack of qualified U.S. workers. In 2016, the Department of Labor determined that Overdevest had violated regulations governing the H-2A program. Overdevest challenged the regulations in District Court, arguing that they were an impermissible interpretation of the statute and were arbitrarily promulgated and enforced against Overdevest. The District Court granted the Department of Labor‘s motion for summary judgment. We now affirm the District Court.
I.
The United States has long provided temporary work authorization for forеign agricultural workers. Often facing a shortage of U.S. workers willing to perform agricultural work, the United States brings foreign agricultural workers temporarily to the United States. The Immigration and Nationality Act (“INA“),
- there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, [“subsection A“] and
- 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 [“subsection B“].
Pursuant to this authority, the Secretary promulgated regulations to protect American workers. Under these regulations, employers must pay the adverse effect wage rate to both H-2A workers and non-H-2A workers, which is the averagе hourly wage for agricultural workers as reported by the USDA.
In 2010, the Secretary amended the regulations defining “corresponding employment.” The 2008 rule had limited the regulation‘s reach to newly-hired workers in the same “occupations” as the H-2A workers, and it permitted employers to staff H-2A workers for up to twenty percent of their time on less-skilled work that was incidental to the skilled work they were hirеd to perform. As a result, the 2008 rule did not require employers to pay the adverse effect wage rate to U.S. workers hired prior to the H-2A workers or to less-skilled U.S. workers in a different “occupation” than the H-2A workers, even though the H-2A workers might occasionally perform the same work as those less-skilled U.S. workers. The 2010 regulation changed course and defined “corresponding employmеnt” as “[t]he employment of workers who are not H-2A workers . . . in any work included in the job order, or in any agricultural work performed by the H-2A workers.”
Overdevest is a large plant nursery and producer of plаnt material based in southern New Jersey and has participated in the H-2A program since 1999. Overdevest grows and sells over 2,000 varieties of plants, and it employs both unskilled and skilled workers. Overdevest employs less-skilled U.S. workers who serve as production workers. Overdevest also employs H-2A workers as order pullers, who “hold the paper, the clipboard, and essentially see to it that the cоrrect plants, correct quantity [of plants], correct quality [of plants] . . . are pulled by the crew.” A171. In 2012 and 2013, Overdevest again received certification to hire H-2A workers to serve as order pullers. In the work order forms, Overdevest certified that it expected the H-2A workers to “accurately and timely pull orders,” “[g]enerate occasional written reports,” and “[p]erform[] other gеneral nursery tasks as necessary.” A123. Overdevest paid the H-2A workers the adverse effect wage rate, but production workers received a lower hourly wage.
In 2013, the Department investigated Overdevest to determine whether it was complying with the H-2A program. Overdevest‘s H-2A workers were sometimes performing general production work, but Overdevest was paying the U.S. production workers perfоrming the same work a lower hourly wage than the H-2A workers. The Department concluded that Overdevest violated the H-2A regulations requiring employers to pay the adverse effect wage rate to any U.S. workers serving in corresponding employment. After an ALJ and the Department‘s Administrative Review Board found in favor of the Department, Overdevest filed suit in the District Court. Overdevest alleged that (1) the definition of “corresponding employment” was inconsistent with the INA and not entitled to Chevron deference, and (2) the Department misapplied the 2010 rule defining “corresponding employment” against Overdevest. After the parties filed cross-motions for summary judgment, the District Court denied Overdevest‘s motion and granted the Department‘s motion in whole. Overdevest timely appealed.
II.
We first turn to Overdevest‘s challenge to the Secretary‘s interpretation of
Under the Chevron framework, we must first resolve whether “Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984). In determining whether a statute is ambiguous, “the court begins with the text, and employs ‘traditional tools of statutory construction’ to determine whether Congress has spoken directly to the issue.” Am. Hosp. Ass‘n v. Azar, 964 F.3d 1230, 1241 (D.C. Cir. 2020) (quoting Prime Time Intern. Co. v. Vilsack, 599 F.3d 678, 683 (D.C. Cir. 2010)). Should the text not answer the question, this Court will also consider the “structure, purpоse, and legislative history to determine if the Congress has expressed its intent unambiguously.” U.S. Sugar Corp. v. EPA, 830 F.3d 579, 605 (D.C. Cir. 2016) (per curiam). If, after exhausting all of our tools of construction, we determine that “the statute is ‘silent or ambiguous with respect to th[e] specific issue,’ we assume ‘Congress has empowered the agency to resolve the ambiguity,’ and we defer to the agency‘s interpretation as long as it is reasonable.” Am. Hosp. Ass‘n, 964 F.3d at 1240 (quoting Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 315 (2014)).
Overdevest argues that Congress was unambiguous in enacting section 1188(a)(1). Recall that the text provides that an employer must certify that “there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition.”
We disagree. Starting with the text, the different language used in subsections
Nor do the canons Overdevest invokes render subsection B unambiguous. Both the ejusdem and the noscitur canon apply when the term in question is directly preceded by a list of terms. See Ejusdem Generis, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“[W]hen a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” (emphasis added)); Noscitur a Sociis, BLACK‘S LAW DICTIONARY (11th ed. 2019) (“A canon of construction holding that the meaning of an unclear word or phrase, esp. one in a list, should be determined by the words immediately surrounding it.” (emphasis added)); see also, e.g., United States v. Espy, 145 F.3d 1369, 1370–71 (D.C. Cir. 1998) (“Where a general term follows a list of specific terms, the rule of ejusdem generis limits the general term as referring only to items of the same category.“); Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990) (“The traditional canon of construction, noscitur a sociis, dictates that words grouped in a list should be given related meaning.” (quoting Massachusetts v. Morash, 490 U.S. 107, 114–15 (1989) (internal quotation marks omitted))). Here, however, the term “similarly employed” does not immediately follow “able, willing, and qualified.” The term is not even in the same provision. Therefore, these canons are irrelevant.
Finally, contrary to Overdevest‘s assertion, the purpose of section 1188(a)(1) confirms that the statute is not unambiguous in the way Overdevest claims it is. As we explained in Mendoza, in enacting Section 1188, “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. The statute was thus not merely meant tо protect qualified U.S. workers. The statute was also meant to protect all U.S. workers who would be hurt by an influx of foreign workers performing unskilled work. Therefore, contrary to Overdevest‘s claim, the purpose of section 1188(a)(1) does not support its narrow reading of the statute.
We next turn to whether the Secretary‘s interpretation of section 1188(a)(1) was reasonable under Chevron Steр Two.
The regulation in question defines “corresponding employment” as:
The employment of workers who are not H-2A workers by an employer who has an approved H-2A Application for Temporary Employment Certification in any work included in the job order, or in any agricultural work performed by the H-2A workers. To qualify as corresponding employment the work must be performed
during the validity рeriod of the job order, including any approved extension thereof.
We agree with the Secretary that the regulation is reasonable. The regulation advances the statute‘s purpose by ensuring that when H-2A workers are performing duties that do not implicate their qualifications, non-H-2A workers will not be placed at a disadvantage. See Mendoza, 754 F.3d at 1017 (“The clear intent of [section 1188(a)(1)] is to protect American workers from the deleterious effects the employment of foreign labor might have on domestic wages and working conditions.“). It does so by requiring employers to pay non-H-2A workers the same amount that they pay the H-2A workers when they are doing the same work. This is an eminently reasonable interpretation of subsection B‘s mandate that the Deрartment protect “similarly employed” workers who are “adversely affected.”
Nor does the bifurcation of subsections A and B read out the “qualified” requirement from subsection A. Other Department regulations require employers to hire qualified U.S. workers after employers have been certified to hire H-2A workers. See
III.
We also reject Overdevest‘s argument that the Department arbitrarily and capriciously promulgated the definition of corresponding employment. Overdevest argues that the Department failed to adequately explain its departure from its 2008 definition of “corresponding employment” when it amended the definition in 2010.
In reviewing an agency‘s rule, “we are ‘not to substitute [our] judgment for that of the agency, but instead to assess only whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.‘” Am. Hosp. Ass‘n v. Azar, 983 F.3d 528, 536 (D.C. Cir. 2020) (quoting DHS v. Regents of the University of California, — U.S. —, 140 S. Ct. 1891, 1905 (2020)). “[A]n agency may change its policy position but must ‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.‘” Id. at 539 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).
The Department first defined “сorresponding employment” in 1987. There, the Department defined workers engaged in corresponding employment as “workers hired . . . in the occupations and for the period of time set forth in the job order.”
Two years later, the Department reversed course. The new definition eliminated the changes made in the 2008 rule after the Department concluded that the “newly hired” provision “stripped protections from longtime employees of H-2A employers.” 75 Fed. Reg. 6,884, 6,886 (Feb. 12, 2010). The Department also eliminated the “minor wоrk” exemption because it was “not . . . in keeping with the plain statutory language requiring the Department to find that there are not enough [domestic] workers available to perform the work for which H-2A workers are being sought.”
Thе Department satisfied its obligations under the APA when it amended the definition of “corresponding employment” in 2010. “An agency may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books.” Fox Television Stations, 556 U.S. at 515. Here, the Department did not ignore the fact that it was changing the policy, and it provided “good reasons for the new policy.” Id. The Department explained why it eliminated the amendments made in the 2008 rule. It stressed that the 2008 changеs created an inconsistent regulatory framework, where longtime U.S. employees were placed at a disadvantage. Moreover, the Department noted that the minor-work exemption was “incongruous,” as it allowed employers to claim a need for H-2A workers without defining the specific work they needed. 75 Fed. Reg. at 6,889. The Department also explicitly acknowledged its sоle departure from the 1987 rule, explaining that the “language was added to address the adverse impact on U.S. workers when an H-2A employer engages H-2A workers in agricultural work outside the scope of work found in the approved job order.”
IV.
Finally, we also conclude that the Secretary‘s enforcement of the 2010 rule against Overdevest was not arbitrary and capricious. Overdevest claims that the definition of “corresponding employment” forced Overdevest to choose between violating the “corresponding employment” rule or violating regulations barring H-2A workers from performing work outside the scope of the job order or the rules requiring H-2A workers to work at least threе-fourths of the workday for the total period. See
But as the Secretary notes, Overdevest had several methods at its disposal to avoid running afoul of any of the Department‘s
V.
Consistent with the foregoing, we affirm the District Court‘s grant of summary judgment to Appellees.
So ordered.
WILKINS
CIRCUIT JUDGE