Dagoberto Morante-Navarro v. T&Y Pine Straw, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 14, 2003
No. 03-10387 THOMAS K. KAHN
CLERK

D. C. Docket No. 01-00335 CV-3-RV-MCR

DAGOBERTO MORANTE-NAVARRO,
ANDRES ASCENCIO-RODRIGUEZ, et al.,

Plaintiffs-Appellants,

versus

T & Y PINE STRAW, INC.,
ISAIAS TAMEZ,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Florida

(November 14, 2003)

Before DUBINA, WILSON and KRAVITCH, Circuit Judges.

DUBINA, Circuit Judge:
Appellants, fourteen Mexican nationals (“Plaintiffs”), brought suit against T

& Y Pine Straw, Inc. (“T&Y”) and Isaias Tamez (collectively referred to as

“Defendants”), alleging that Defendants violated the Migrant and Seasonal

Agricultural Workers Protection Act, codified at 29 U.S.C. §§ 1801-1872 (1988)

(“AWPA”), and the Fair Labor Standards Act, codified at 29 U.S.C. §§ 201-219

(1988) (“FLSA”), by not paying proper hourly and overtime wages. The district

court found that Plaintiffs were not engaged in “agricultural employment” within

the meaning of the AWPA. For the reasons that follow, we reverse the district

court’s judgment and remand this case for further proceedings consistent with this

opinion.

I. BACKGROUND

A. Facts

The facts are not in dispute. Tamez and his wife own T&Y, which is a

Florida corporation in the business of the commercial sale of pine straw. T&Y

leases privately-owned land for gathering pine straw and sells the baled pine straw

to Southern Straw of Opelika, Alabama, based on a pre-agreed price per bale.

Pine straw is the fresh, undecomposed pine needles that have fallen from

pine trees. It is produced commercially and collected for use as a mulch and

groundcover. Although all pine forests or pine woodlands produce pine straw, the

2
vast majority of pine straw gathered for commercial sale is collected from pine

stands, or “plantations,” grown for commercial timber.

In order to gather pine straw, workers must first clear the ground of

underlying plants and debris, which often requires the mechanical mowing of

ground vegetation by a “bush hog,” and the manual clearing of loose branches and

pine cones. After clearing the tract, workers rake the pine straw and deposit it into

a bailing box, which compresses the pine straw into bales. Workers then load the

pine straw onto trucks with a forklift. Individual pine straw workers can generally

gather and bale between 100 and 200 bales of pine straw per day, covering about

one-half acre of land.

In 2001, T&Y hired Plaintiffs, who are temporary foreign workers, through

the H-2B visa program,1 to rake, gather, bale, and load pine straw. T&Y set out in

its temporary labor certification application to the United States Department of

Labor (“DOL”) that the prevailing wage its temporary foreign workers would

receive was $6.65 per hour of work. Plaintiffs were told they would receive 70

cents per bale for each bale of pine straw. They worked between 10 and 11 hours

per day. Accordingly, a worker who averaged gathering and baling 100 bales a

1
The term “H-2B” is derived from the section of the Immigration and Nationality Act that
authorizes the admission of aliens to perform unskilled work of a temporary nature. 8 U.S.C. §
1101(H)(ii)(b).

3
day during a 10-hour day could expect to receive approximately $7.00 per hour.

T&Y, however, reduced Plaintiffs’ compensation by certain expenses so that

Plaintiffs actually received, on average, less than $6.65 per hour. In addition,

several workers received no compensation for their final week of work. These

deducted expenses included a $400 processing fee T&Y was required to pay to its

agent for filing H-2B applications, $153 for visa-related expenses, and $197 for

bus fare between Monterrey, Mexico, and the work site.2

B. Procedural History

Plaintiffs filed their complaint for money damages, declaratory relief, and

injunctive relief. After Defendants’ filed their answer and initial discovery was

conducted, the district court entered a consent order approving an agreement

between the parties settling and resolving most of Plaintiffs’ claims. As a

condition of the settlement agreement, however, the district court retained

jurisdiction to resolve the remaining issue of whether the AWPA applies to

Defendants’ pine straw business.

Plaintiffs filed a motion for summary judgment in the district court arguing

that (1) Plaintiffs’ employment was of a seasonal or temporary nature, and (2) the

2
Such costs cannot lawfully be credited against the employer’s minimum wage
obligations to the workers. Arriaga v. Florida Pac. Farms, L.L.C., 305 F.3d 1228, 1236 (11th
Cir. 2002).

4
raking, gathering, baling, and loading of pine straw is “agricultural employment”

within the meaning of the AWPA. The district court granted in part and denied in

part the Plaintiffs’ motion, finding that Plaintiffs were seasonal workers within the

meaning of the AWPA, but that the work performed by Plaintiffs did not

constitute agricultural employment under the AWPA.

Plaintiffs then perfected this appeal regarding the second issue. Defendants

did not file a brief or participate in oral argument on appeal.

II. STANDARD OF REVIEW

Whether Plaintiffs’ raking, gathering, baling, and loading of pine straw for

commercial sale is “agricultural employment” within the purview of the AWPA is

an issue of first impression in this court. Because the issue exclusively concerns a

question of law, the court reviews it de novo. Scala v. City of Winter Park, 116

F.3d 1396, 1397 n.1, 1398 (11th Cir. 1997).

III. ANALYSIS

Whether the raking, gathering, baling, and loading of pine straw constitutes

“agricultural employment” within the purview of the AWPA requires us to

consider several aspects of statutory interpretation. We first look to the text of the

statute, considering principles of statutory construction and seeking guidance from

the DOL. We also consider the act’s purpose as indicated in the legislative

5
history. Lastly, we consider case law. See Caro-Galvan v. Curtis Richardson,

Inc., 993 F.2d 1500, 1505 (11th Cir. 1993) (construing the AWPA). “Our ultimate

goal is to give effect to congressional intent.” See id. (citing United States v. Ron

Pair Enters., Inc., 489 U.S. 235, 242, 109 S. Ct. 1026, 1031, 103 L. Ed. 2d 290

(1989)). The “AWPA is a remedial statute and should be construed broadly to

effect its humanitarian purpose.” Id. (citing Bracamontes v. Weyerhaeuser Co.,

840 F.2d 271, 276 (5th Cir.), cert. denied, 488 U.S. 854, 109 S. Ct. 141, 102 L. Ed.

2d 113 (1988)). After considering these aspects of statutory interpretation, we

conclude that Plaintiffs were engaged in “agricultural employment” within the

meaning of the AWPA.

A. Text of the AWPA

The AWPA defines “agricultural employment” as

employment in any service or activity included within the provisions
of section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C.
203(f)), or section 3121(g) of Title 26 [defining “agricultural labor”
in the Internal Revenue Code] and the handling, planting, drying,
packing, packaging, processing, freezing, or grading prior to delivery
for storage of any agricultural or horticultural commodity in its
unmanufactured state.

29 U.S.C. § 1802(3). Thus, the AWPA encompasses three possible definitions for

agricultural employment: (1) employment within the provisions of section 3(f) of

the FLSA, 29 U.S.C. § 203(f); (2) employment within the provisions of section

6
3121(g) of the Internal Revenue Code (“IRC”), 26 U.S.C. § 3121(g); and (3) “the

handling, planting, drying, packing, packaging, processing, freezing, or grading

prior to delivery for storage of any agricultural or horticultural commodity in its

unmanufactured state.” Id.

In order to fall within the first two definitions of “agricultural employment,”

the work must be performed “on a farm.” 29 U.S.C. § 203(f) (“‘Agriculture’

includes farming in all its branches . . . and any practices (including any forestry or

lumbering operations) performed by a farmer or on a farm as an incident to or in

conjunction with such farming operations . . . .”); 26 U.S.C. § 3121(g)

(“‘[A]gricultural labor’ includes all services performed . . . on a farm, . . . in

connection with raising or harvesting any agricultural or horticultural commodity .

. . .”); see also Bracamontes, 840 F.2d at 272-73. Plaintiffs concede that their pine

straw work does not fall within the FLSA definition because their work is not

performed on a traditional farm, e.g., on land dedicated to the raising of crops or

livestock. See Bracamontes, 840 F.2d at 272-73 (“farm” has been interpreted to

include only traditional farms). Plaintiffs argue, however, that they fall within the

IRC definition because the IRC includes “plantations” in its definition of a farm.

26 U.S.C. § 3121(g). While Plaintiffs refer to the land upon which the pine straw

is gathered as a “plantation,” whether such an area is indeed a “plantation” within

7
the meaning of the IRC is unclear from oral argument, the record, and the IRC.

See, e.g., Kaolin Mushroom Farms, Inc. v. United States, No. 77-4379 (E.D. Pa.

Sept. 21, 1979) (unpublished opinion) (recognizing that the IRC presents a

“somewhat uncertain statutory framework” containing circular definitions of both

“farm” and “agricultural commodity”). We need not resolve this issue, however,

because we conclude that Plaintiffs fall within the AWPA’s third definition of

“agricultural employment.”

Under the third definition, “agricultural employment” is the “handling,

planting, drying, packing, packaging, processing, freezing, or grading prior to

delivery for storage of any agricultural or horticultural commodity in is

unmanufactured state.” 29 U.S.C. § 1802(3). Because Plaintiffs were clearly

“handling” pine straw, the narrow issue in this case becomes whether pine straw is

an “agricultural or horticultural commodity” within the purview of the AWPA.

The AWPA does not define “agricultural or horticultural commodity” or

“agriculture.” Because this case presents a close question and several

interpretations are plausible, we carefully construe the statute, focusing first on the

term “agriculture.”

“A fundamental canon of statutory construction is that, unless otherwise

defined, words will be interpreted as taking their ordinary, contemporary, common

8
meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314, 62 L. Ed.

2d 199 (1979). Webster’s Dictionary defines “agriculture” broadly as “the science

or art of the production of plants and animals useful to man and in varying degrees

the preparation of the products for man’s use and their disposal (as by

marketing).” Webster’s Third New International Dictionary 44 (1986); see also

Black’s Law Dictionary 69 (7th ed. 1999) (agriculture is “the science or art of

cultivating soil, harvesting crops, and raising livestock”); 3 Am. Jur. 2d

Agriculture § 1, at 768 (2002) (agriculture includes “preparing soil, planting seeds,

raising and harvesting crops, . . . gardening, horticulture, viticulture, dairying,

poultry, bee raising, ranching, riding stables, firewood operations, and landscape

operations”). Likewise, the FLSA and the DOL define “agriculture” broadly to

include forestry and lumbering operations performed on a farm. 29 U.S.C.

§ 203(f); 29 C.F.R. § 780.200 (1987) (“‘[A]griculture’ is sometimes used in a

broad sense as including the science and art of cultivating forests . . . .”).

Although the raking, gathering, baling, and loading of pine straw may fall

within these broad definitions of “agriculture,” the term “agricultural commodity”

is ambiguous because it is unclear whether the term encompasses the pine straw at

issue in this case. We therefore find it necessary to consider the purpose of the

9
statute to determine if Congress intended the terms “agriculture” and “agricultural

commodity” to include the activities and commodity at issue.

B. Purpose of the AWPA

In 1983, Congress enacted the Migrant and Seasonal Agricultural Worker

Protection Act “to remove the restraints on commerce caused by activities

detrimental to migrant and seasonal agricultural workers . . . and to assure

necessary protections for migrant and seasonal agricultural workers . . . .” 29

U.S.C. § 1801; see also Martinez-Mendoza v. Champion Int’l Corp., 340 F.3d

1200, 1207 (11th Cir. 2003). The AWPA requires agricultural employers to

various compensation, housing, and transportation provisions.3 See 29 U.S.C. §§

1811-1844. Anyone aggrieved as a result of an employer’s failure to fulfill these

responsibilities may bring a private right of action in a United States district court,

for both legal and equitable relief. 29 U.S.C. § 1854(a), (c).

When determining to whom Congress intended the act to apply, we look to

the AWPA’s predecessor, the Farm Labor Contractor Registration Act of 1963,

3
The AWPA defines “agricultural employer” as “any person who owns or operates a
farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or who produces or
conditions seed, and who either recruits, solicits, hires, employs, furnishes, or transports any
migrant or seasonal agricultural worker.” 29 U.S.C. § 1802(2).

10
codified as amended at 7 U.S.C. § 2041 et seq. (“FLCRA”) (repealed 1983). The

FLCRA was the first major federal effort to improve the conditions for agricultural

laborers, who are “among the most exploited groups in the American labor force,”

S. Rep. No. 93-1295, at 1-3 (1974), reprinted in 1974 U.S.C.C.A.N. 6441,

6441-43, because they suffer chronic “low wages, long hours and poor working

conditions.” H.R. Rep. No. 97-885, at 1 (1982), reprinted in 1982 U.S.C.C.A.N.

4547, 4547. Congress recognized that agricultural laborers are generally at the

mercy of their employers as to the conditions and terms of their employment

because of virtually insurmountable economic, social, educational, language, and

cultural barriers. Caro-Galvan, 993 F.2d at 1505-06 (citing W. Gary Vause, The

Farm Labor Contractor Registration Act, 11 Stetson L. Rev. 185, 198 (1982)).

In 1982, Congress substituted the AWPA for the FLCRA because the

FLCRA had failed to aid exploited agricultural laborers, yet was hampering

agricultural employers with its onerous registration requirements. Id.; H.R. Rep.

No. 97-885, 1982 U.S.C.C.A.N. at 4549. To ease the burden on agricultural

employers, the AWPA eliminated many of the registration requirements. The

AWPA did not, however, narrow the class of workers entitled to protection against

exploitation. See Caro-Galvan, 993 F.2d at 1505-06. Thus, the AWPA

encompasses all activities covered by the FLCRA. Id.

11
The AWPA also expands coverage to include additional activities not

previously protected by the FLCRA. Bresgal v. Brock, 843 F.2d 1163, 1168 (9th

Cir. 1987). Congress’ intent to expand the protections accorded to agricultural

workers is evidenced by the purpose and text of the AWPA. The purpose of the

AWPA was to provide “coverage to all aspects of commerce in agriculture.” S.

Rep. No. 93-1295, 1974 U.S.C.C.A.N. at 6448. These words “suggest a general

broadening of the definition of agricultural employment.” Bresgal, 843 F.2d at

1167. In addition, the amendment is entitled, in relevant part, “the ... Agricultural

Worker Protection Act” whereas its predecessor was directed principally at “Farm

Labor[ers].” Furthermore, the AWPA added the third definition of “agricultural

employment,” which applies to certain activities regardless of their location.

Because the “handling . . . of any agricultural . . . commodity,” if performed on a

farm, is within the original definition of “agricultural employment,” this third

definition would be redundant if Congress had not intended to expand the

protections afforded to agricultural workers beyond those working on farms.

Bracamontes, 840 F.2d at 275-76; Bresgal, 843 F.2d at 1166-68 (stating that it is

“inconceivable that Congress intended to protect workers planting fruit trees in an

orchard, and to disregard workers planting fir trees on a hillside, when both groups

suffer from the same clearly identified harm”).

12
Accordingly, we conclude that Congress intended to expand the definition

of “agriculture” and “agricultural employment” to include activities, regardless of

their location, not previously covered by the FLCRA. We also conclude, for the

reasons that follow, that this expanded definition of “agriculture” encompasses the

raking, gathering, baling, and loading of pine straw in this case.

C. Department of Labor Pronouncements

The DOL’s pronouncements regarding the AWPA and related statutes

support our conclusion. We accord significant weight to the statutory

interpretation of the executive agency charged with implementing the statute being

construed, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S.

837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984); Continental Can Co. v.

Mellon, 825 F.2d 308, 311 (11th Cir. 1987) (per curiam), particularly when a

formally published regulation or opinion incorporates that interpretation, see

United States v. Mead Corp., 533 U.S. 218, 230-31, 121 S. Ct. 2164, 2172-73, 150

L. Ed. 2d 292 (holding that agency pronouncements are entitled to deference).

While these administrative pronouncements do not have the force of binding law,

we defer to them based on the expertise and experience of the agency. See, e.g.,

Mabee v. White Plains Publ’g Co., 327 U.S. 178, 182, 66 S. Ct. 511, 513, 90 L.

Ed. 607 (1946).

13
The DOL, in interpreting the narrower language of the FLSA, states that

“‘agricultural or horticultural commodities’ refers to commodities resulting from

the application of agricultural or horticultural techniques.” 29 C.F.R. § 780.112

(2003). The DOL includes, inter alia, fruits and nuts from trees within this

definition. Id. The DOL excludes, however, commodities produced by

exploitation of natural resources or by uncultivated natural growth, such as peat

moss. Id.; see also id. § 780.114 (excluding “wild commodities”). The DOL then

limits this exclusion by stating that

the fact that plants or other commodities actually cultivated by men
are of a species which ordinarily grows wild without being cultivated
does not preclude them from being classed as ‘agricultural or
horticultural commodities.’ Transplanted branches which were cut
from plants growing wild in the field or forest are included within the
term.

Id. § 780.114 (emphasis added).

Based on these DOL pronouncements, we are persuaded that pine straw is

an agricultural commodity so long as Plaintiffs used “agricultural techniques” to

“cultivate” it. The district court’s focus on the fact that no cultivation by man is

required in order to produce pine straw was misguided. To the contrary, the

question is whether actual cultivation occurred, not whether the cultivation was

required to produce the naturally-occurring pine straw. See id. The district court

14
found that “the gathering of pine straw requires that underlying plants and debris

be first cleared. Site preparation often requires the ground vegetation to be

mowed mechanically by a ‘bush hog,’ and then the individual worker clears the

area where he will be working [free] of loose branches and pine cones.” [R. Vol. 1

at Tab 34]. The pine straw at issue in this case is therefore a “cultivated product”

rather than a “wild commodity.” Accordingly, it falls within the narrow definition

of “agricultural or horticultural commodity” as used in the FLSA. As such, it also

falls within the broader purview of the AWPA.

Furthermore, the DOL’s Wage and Hour Administrator has issued an

opinion letter consistent with our conclusion. The DOL issued the opinion letter

in response to an inquiry regarding whether “agricultural employment” under the

AWPA included “such activities as handling of wild, small plants growing in the

forest, ... trimming and harvesting of evergreen boughs, harvesting of yew bark

and harvesting of ferns.” Wage-Hour Administrator Opinion Letter No. 1732

(WH-541), 1994 WL 975108 (Dec. 1, 1994). The DOL’s position is that

issues such as whether employees who work on forest products are
subject to [the AWPA] are guided by the criteria delineated in the
Bresgal decision. That decision makes it clear that Congress intended
that agricultural employment include forestry operations of the type
. . . described. Therefore, . . . [the AWPA] applies to all of the
activities about which you inquired if done with predominately
manual labor within a forest.

15
Id. Like the court in Bresgal, the DOL focuses on the nature of the commodities

and their cultivation by man, rather than the location of the activities, in finding

that the activities in question constituted agricultural employment. We too focus

on the nature of the commodities and their manual cultivation and conclude that,

because the pine straw was cultivated by man through a labor-intensive process, it

constitutes an “agricultural commodity” that Plaintiffs handled during their

“agricultural employment,” as the AWPA defines both terms.4

D. Case Law

Our holding today is also fully consistent with other courts’ decisions that

have specifically analyzed the term “agricultural or horticultural commodity”as

used in the AWPA. See Bracamontes, 840 F.2d at 276-77 (holding that pine tree

seedlings are “agricultural or horticultural commodities” such that the planting of

pine trees is “agricultural employment” under the AWPA);5 Bresgal, 843 F.2d at

4
We do not reach the broader question of whether the AWPA covers forestry workers as a
whole because we conclude that Plaintiffs, regardless of whether they are forestry workers, were
handling agricultural commodities. It should be noted that we have not previously addressed this
question nor have we answered it. Interpretations of our decision in Davis Forestry Corp. v.
Smith, 707 F.2d 1325, 1328 n.3 (11th Cir. 1983)(holding that competitor of alleged farm labor
contractor did not have standing to sue under the AWPA), reasoning that such question was
implicitly asked and answered, are misguided. See, e.g., Bracamontes, 840 F.2d at 274. To the
contrary, we agree with the case law of other circuits, which shows that whether forestry workers
are covered depends on whether they handle agricultural or horticultural commodities and
whether their work involves labor-intensive cultivation of those commodities.
5
The Fifth Circuit went on to hold that forestry operations, even when not performed on a
traditional farm, were “agricultural employment” under the AWPA. Bracamontes, 840 F.2d at

16
1166 (holding that trees raised as a crop for harvest are agricultural commodities

within the purview of the AWPA); Colunga v. Young, 722 F. Supp. 1479, 1486

(W.D. Mich. 1989) (finding that plaintiffs, who were migrant workers engaged in

the cutting, gathering, tying, and loading of evergreen boughs, were “agricultural

workers” within the meaning of the AWPA because “they were engaged in the

handling of horticultural commodities”), aff’d, 914 F.2d 255 (6th Cir. 1990)

(unpublished opinion); Kaolin Mushroom Farms, Inc. v. United States, No. 77-

4379 (E.D. Pa. 1979) (unpublished opinion) (holding that mushroom compost is

an agricultural commodity within the purview of the AWPA); but see Donovan v.

Frezzo Bros., Inc., 678 F.2d 1166, 1171 (3rd Cir. 1982) (holding that mushroom

compost is not an agricultural commodity within the purview of the AWPA

because it is produced by an industrial process, rather than an agricultural process,

thereby making it a manufactured product).

In United States v. Turner Turpentine Co., 111 F.2d 400, 404-05 (5th Cir.

1940),6 the former Fifth Circuit concluded that the labor employed in the

production of crude gum and oleoresin by the scarification of living pine trees was

“agricultural labor” within the meaning of the term as used in the Social Security

276.
6
In Bonner v. City of Prichard, 661 F.2d 1206, 1207-09 (11th Cir.1981) (en banc), this
court adopted as binding precedent all Fifth Circuit decisions issued prior to October 1, 1981.

17
Act.7 The court reasoned that, notwithstanding that the production of oleoresin in

a tree is a natural process, because man can speed up and enhance the process

through his labor, and because the oleoresin cannot be separated into turpentine

and rosin, and thus put to commercial use, without human intervention, Congress

intended the term “agricultural labor” to “have a meaning wide enough and broad

enough to cover and embrace agricultural labor of any and every kind, as that term

is understood in the various sections of the United States where the [Social

Security Act] operates.” Turner Turpentine Co., 111 F.2d at 404-05.

We conclude that pine straw is analogous to those commodities previously

deemed “agricultural or horticultural.” Like tree seedlings, trees, evergreen

boughs, and mushroom compost, pine straw is produced by a natural process that

can be – and was in this case – enhanced by manual labor and cannot be put to

commercial use without human intervention.

7
While the Turner court analyzed a different Act, the facts, analysis, and law are
substantially similar so as to provide guidance in our interpretation of the AWPA.

18
IV. CONCLUSION

Based on the plain language of the AWPA, its underlying Congressional

intent, the DOL’s pronouncements, and supportive case law from other

jurisdictions, we conclude that pine straw is an “agricultural or horticultural

commodity” such that Plaintiffs here were engaged in “agricultural employment.”

Therefore, they fall within the purview of the AWPA. Accordingly, we reverse

the district court’s judgment and remand this case for further proceedings

consistent with this opinion.

REVERSED and REMANDED.