United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2021 Decided June 25, 2021
No. 20-5163
OVERDEVEST NURSERIES, L.P.,
APPELLANT
v.
MARTIN WALSH, IN HIS OFFICIAL CAPACITY AS UNITED STATES
SECRETARY OF LABOR, ET AL.,
APPELLEES
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, Senior 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 Judge WILKINS.
2
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 foreign 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”), 8 U.S.C. §§ 1101–1537, has
governed temporary work authorization since 1952. Under the
INA, employers may temporarily hire foreign workers “when
there are not enough qualified and available American workers
to fill open jobs” through the H-2A program. Mendoza v.
Perez, 754 F.3d 1002, 1007 (D.C. Cir. 2014); see also 8 U.S.C.
§ 1101(a)(15)(H)(ii)(a). To participate in the H-2A program,
an employer must first certify to the Secretary of Labor that:
A. 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
3
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 [“subsection B”].
8 U.S.C. § 1188(a)(1)(A)–(B). Only after the Department of
Labor (“Department”) has certified the petition can the
employer petition the Department of Homeland Security to
designate foreign workers as H-2A workers. Mendoza, 754
F.3d at 1007. Congress directed the Secretary of Labor
(“Secretary”) to promulgate regulations that would set the
parameters of the program, particularly for temporary workers
coming “to perform agricultural labor or services.” 8 U.S.C. §
1101(a)(15)(H).
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
average hourly wage for agricultural workers as reported by the
USDA. 20 C.F.R. § 655.103(b); id. § 655.120(a); id. §
655.122(l). The adverse effect wage rate provides a wage floor
that aims to prohibit employers from underpaying foreign
workers and thereby depressing wages for similarly-employed
American workers. See Mendoza, 754 F.3d at 1008.
Employers must also pay the adverse effect wage rate to
workers engaged in “corresponding employment.” 20 C.F.R.
§ 655.103(b); id. § 655.122(l). The definition of
“corresponding employment” is the basis for the instant
dispute.
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
4
less-skilled work that was incidental to the skilled work they
were hired 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 employment” 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.” 20 C.F.R. §
655.103(b). Thus, the 2010 rule requires employers to pay the
adverse effect wage rate to any and all U.S. workers who
perform any work that is the same as any skilled or agricultural
work that is performed by H-2A workers.
Overdevest is a large plant nursery and producer of plant
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 correct 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 general 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.
5
Overdevest’s H-2A workers were sometimes performing
general production work, but Overdevest was paying the U.S.
production workers performing 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.
“We review the district court’s grant of summary
judgment de novo.” W. Surety Co. v. U.S. Eng’g Constr., LLC,
955 F.3d 100, 104 (D.C. Cir. 2020). We “evaluat[e] the
administrative record directly and invalidat[e] the
Department’s actions only if, based on that record, they are
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” Stand Up for California! v. U.S.
Dep’t of Interior, 879 F.3d 1177, 1181 (D.C. Cir. 2018)
(internal quotation marks omitted); see also 5 U.S.C. §
706(2)(A).
II.
We first turn to Overdevest’s challenge to the Secretary’s
interpretation of 8 U.S.C. § 1188(a)(1) in the 2010 Rule.
Overdevest argues that the Secretary was not entitled to
Chevron deference because (1) Congress, in enacting section
1188(a)(1), was explicit that only qualified U.S. workers were
6
to receive the same wage as H-2A workers; and (2) the
Secretary’s interpretation was not reasonable.
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, purpose, 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.” 8 U.S.C. § 1188(a)(1)(A). Because
subsection A requires employers to certify that there are
insufficient U.S. workers “who are able, willing, and
qualified,” Overdevest argues that subsection B’s reference to
7
“similarly employed” workers (from which “corresponding
employment” is derived) is necessarily limited to U.S. workers
who are employed in the same position as H-2A workers.
Overdevest also invokes the ejusdem generis and noscitur a
sociis canons to argue that the words “able, willing, and
qualified” limit the definition of “similarly employed.”
Finally, Overdevest contends that the purpose of the statute
resolves any ambiguity, as the statute was meant only to protect
qualified U.S. workers. Thus, Overdevest argues, Congress
was unambiguous that subsection B only applies to qualified
U.S. workers.
We disagree. Starting with the text, the different language
used in subsections A and B suggests that Congress did not
limit “similarly employed” to unambiguously mean “able,
willing, and qualified.” As the Supreme Court has made clear,
“when Congress includes particular language in one section of
a statute but omits it in another—let alone in the very next
provision—[the reviewing court] presumes that Congress
intended a difference in meaning.” Loughrin v. United States,
573 U.S. 351, 358 (2014) (quoting Russello v. United States,
464 U.S. 16, 23 (1983)) (cleaned up). Had Congress intended
to unambiguously limit the reach of subsection B to “able,
willing, and qualified” U.S. workers, it could have simply
reused this language from subsection A in the very next
provision. But Congress did not. Congress therefore left the
decision of how to interpret subsection B to the Secretary.
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
8
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 to 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 Step Two.
9
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
period of the job order, including any approved
extension thereof.
20 C.F.R. § 655.103(b). Overdevest argues that this definition
renders subsection A of section 1188(a)(1) purely
retrospective, meaning that the employer only has to
demonstrate that there are insufficient “qualified” U.S. workers
available up until the time of certification, and subsection B
prospective, thereby rendering the “qualified” requirement of
subsection A a nullity once the Department has certified a U.S.
employer under the H-2A program. This interpretation,
Overdevest claims, is unreasonable for two reasons. First,
Overdevest argues that this definition unreasonably expands
the protections of subsection B to any U.S. worker performing
the same work as H-2A workers. Overdevest claims that the
regulation creates two classes of U.S. workers, where
unqualified U.S. workers are placed at an advantage over
qualified U.S. workers, which Overdevest contends runs
contrary to the purpose of the statute. Second, Overdevest
contends that the regulation is unreasonable because it runs
contrary to both the statute and the Secretary’s other
regulations, which require employers to comply with
subsection A and continue to hire qualified U.S. workers, if
available, even after the employer has been certified to hire H-
2A workers.
10
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
Department 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 20 C.F.R. § 655.135(d) (requiring employers to
hire qualified U.S. workers until fifty percent of the time frame
set out in the H-2A work order has elapsed). The Department’s
interpretation here does not remove or contradict this
requirement. Instead, it specifically seeks to satisfy the
mandate Congress set out for the Department in subsection B.
We therefore hold that the Department’s definition of
“corresponding employment” was reasonable.
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.
11
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 “corresponding
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.” 29 C.F.R. § 501.0 (1987). In 2008, the Department
limited the regulation’s reach to newly hired U.S. workers and
provided an incidental-work exemption, which permitted H-2A
workers to devote up to twenty percent of their time to perform
duties incidental to agricultural work. See 73 Fed. Reg. 77,110,
77,230, 77,234 (Dec. 18, 2008).
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 work” 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.” Id. at 6,889. With one
exception, the Department described the 2010 change as a
return to the 1987 definition: it added “the phrase [‘]or in any
12
agricultural work performed by the H-2A workers.[’]” Id. at
6,885.
The 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 changes 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 sole 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.” Id. at 6,885. These explanations were
more than sufficient to satisfy the Department’s burden under
Fox Television Stations.
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
13
H-2A workers to work at least three-fourths of the workday for
the total period. See 20 C.F.R. §§ 655.122(i); 655.182(d)(vii).
But as the Secretary notes, Overdevest had several
methods at its disposal to avoid running afoul of any of the
Department’s regulations. Overdevest could have drafted
narrower work orders and paid the H-2A workers for any idle
hours needed to satisfy the three-fourths rule. See 20 C.F.R. §
655.122(i)(1)(iv) (“If during the total work contract period the
employer affords the U.S. or H-2A worker less employment
than that required . . . the employer must pay such worker the
amount the worker would have earned . . . .”). Alternatively,
Overdevest could have simply paid the domestic workers the
same wage as H-2A workers whenever the H-2A workers were
performing the same work. There was thus no inevitable
conflict between the 2010 rule and other regulations, so the
enforcement action against Overdevest was not arbitrary and
capricious. Cf. Heckler v. Cmty. Health Servs., 467 U.S. 51,
60–64 (1984).
V.
Consistent with the foregoing, we affirm the District
Court’s grant of summary judgment to Appellees.
So ordered.