United States District Court, District of Columbia
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
October 31, 2019, Plaintiffs Everglades Harvesting and
Hauling, Inc. ("Everglades"), Statewide Harvesting
and Hauling, LLC ("Statewide"), Florida Fruit and
Vegetable Association ("FFVA"), Florida Citrus
Mutual, and National Council of Agricultural Employers
("NCAE") (collectively, "plaintiffs")
filed suit against the United States Secretary of Labor,
Eugene Scalia ("the Secretary"), and the Assistant
Secretary of Labor for Employment and Training
Administration, John P. Pallasch (collectively,
"defendants"), alleging violations of the
Administrative Procedure Act ("APA"), 5 U.S.C.
§ 551, et seq. See Compl. [Dkt. #1]
¶¶ 29-36. Six days later, plaintiffs filed a Motion
for Temporary Restraining Order and Motion for Preliminary
Injunction ("Mot. for P.I."). See Mot. for
P.I., Nov. 6, 2019 [Dkt. #5]. The following day, I held a
hearing at which I heard argument on and, ultimately, denied
the TRO. See Civ. No. 19-3291, Minute Entry, Nov. 7,
2019. The parties briefed the motion for P.I., and this Court
heard argument from both sides on November 21, 2019.
See Civ. No. 19-3291, Minute Entry, Nov. 21, 2019.
After review of the pleadings, oral argument, and the entire
record, I hereby GRANT the motion for P.I. for the reasons
set forth below. See id.
The H-2A Program and its Statutory and Regulatory
"H-2" temporary foreign worker program dates back
to the original enactment of the Immigration and Nationality
Act ("INA") in 1952. See Pub. L. 82-414
§ 101(15)(H)(ii) (June 27, 1952). The Immigration
Reform Control Act of 1986 ("IRCA") later split the
H-2 program into two components: H-2A for temporary
agricultural workers and H-2B for nonagricultural workers.
See Pub. L. 99-603 § 301(a). In 2005, this
portion of the INA was slightly modified once again.
See Pub. L. 109-90 § 536 (Oct. 18, 2005). This
portion of the INA now defines the term "immigrant"
an alien having residence in a foreign country which he has
no intention of abandoning who is coming temporarily to the
United States to perform agricultural labor or services, as
defined by the Secretary of Labor in regulations and
including agricultural labor defined in section 3121(g) of
title 26 [the Internal Revenue Code], agriculture as defined
in section 203(f) of title 29 [the Fair Labor Standards Act],
and the pressing of apples for cider on a farm, of a
temporary or seasonal nature.
8 U.S.C. § 1101(a)(15)(H)(ii)(a).
to the statutory directive above, the Department of Labor
("DOL") has promulgated a number of different
definitions of "agricultural labor or services"
over the years. See, e.g., 52 FR 20496 (June 1,
1987); 73 FR 8538, 8555 (Feb. 13, 2008); 73 FR 77110, 77212
(Dec. 18, 2008); 75 FR 6884, 6887-6889 (Feb. 12, 2010). The
current version of the regulations, adopted in 2010, almost
mirrors the statute, defining "agricultural labor or
services" as (additions to the statutory definition
agricultural labor as defined and applied in sec.
3121(g) of the Internal Revenue Code of 1986 at 26 U.S.C.
3121(g); agriculture as defined and applied in sec.
3(f) of the Fair Labor Standards Act of 1938 (FLSA) at 29
U.S.C. 203(f); the pressing of apples for cider on a farm;
or logging employment. An occupation included in either
statutory definition is agricultural labor or services,
notwithstanding the exclusion of that occupation from the
other statutory definition.
20 C.F.R. § 655.103(c) (emphasis added). As relevant
here, the definition of "agricultural labor" under
IRC § 3121(g)(1):
includes all service performed ... on a farm, in the employ
of any person, in connection with cultivating the soil, or in
connection with raising or harvesting any agricultural or
horticultural commodity, including the raising, shearing,
feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
26 U.S.C. § 3121(g)(1). The DOL has not adopted any of
its own regulations further elaborating on the meaning of IRC
§ 3121(g)(1), but the Department of the Treasury has:
(1) Services performed on a farm by an employee of any person
in connection with any of the following activities constitute
(i) The cultivation of the soil;
(ii) The raising, shearing, feeding, caring for, training, or
management of livestock, bees, poultry, fur-bearing animals,
or wildlife; or
(iii) The raising or harvesting of any other agricultural or
(2) Services performed in connection with the production or
harvesting of maple sap, or in connection with the raising or
harvesting of mushrooms, or in connection with the hatching
of poultry constitute agricultural labor only if such
services are performed on a farm. Thus, services performed in
connection with the operation of a hatchery, if not operated
as part of a poultry or other farm, do not constitute
26 C.F.R. §31.3121(g)-1(b).
addition to these statutes and regulations, the DOL's
most recent pronouncement regarding the H-2A program is a
document containing a series of frequently asked questions
("FAQs") and responses, which DOL distributed on
October 23, 2019 in response to the controversy that gave
rise to this case. See 2010 H-2A Final Rule FAQs:
Round 14: H-2A Definition of Agricultural Labor or Services
("H2-A FAQs"), Oct. 23, 2019 [Dkt.
#l-6]. Of course, these FAQs have not gone
through any formal rulemaking process, but they do provide
evidence of and explanations for the DOLs latest thinking on
the matters at issue here.
The H-2A Application and Appeal Process
order to obtain an H-2A Temporary Labor Certification
("TLC"), an employer must go through a multi-step
application process, the relevant parts of which can be
summarized as follows: First, the employer submits a
"job order" to a state agency between sixty and
seventy-five days before the labor is needed. See 20
C.F.R. § 655.121(a). The state agency checks for
compliance with DOL regulations, classifies the type of job
the employer seeks to fill, and attempts to recruit U.S.
workers to fill that job. See Id. § 121(b)(1),
(c). Second, while the state agency is completing these
steps, the employer submits an H-2A application and
supporting documentation to the DOL no less than forty-five
days before the labor is needed. See Id. §
655.130(b). Third, DOL employees then review the application
for compliance with all applicable program requirements.
See Id. § 655.140(a). Within seven days of
receiving the H-2A application, a DOL Certifying Officer
("CO") issues either a Notice of Acceptance
("NOA") or a Notice of Deficiency
("NOD"). Id. §§ 655.141(a),
655.143(a). NODs identify the reasons the employer failed to
meet the H-2A program's criteria and, if applicable, list
the modifications required for acceptance. See Id.
§ 655.143(b). If the employer submits modifications, the
CO will review and either accept or deny the modified
their application for an H-2A TLC is denied, an employer has
seven days to request either an expedited administrative
review by, or a de novo administrative hearing before, an
Administrative Law Judge ("ALJ"). See Id.
§§ 655.164(b), 655.171. If the employer does not
request such a review within seven days, the CO's
decision is final. See Id. § 655.164(c). If the
employer requests an expedited review, the ALJ will review
the written record and any written submissions within five
days of receiving the administrative record and either
affirm, reverse, or modify the CO's decision, or remand
to the CO for further action. See Id. §
655.171(a). If the employer requests a de novo hearing, the
ALJ will schedule a hearing for within five days of receiving
the administrative record, consider any new evidence, and
render a decision affirming, reversing, or modifying the
CO's determination, or remand to the CO for further
action, within ten days of the hearing. See Id.
§ 655.171(b). The ALJ's decision after either an
expedited review or a de novo hearing is the final decision
of the Secretary. See id. § 655.171.
H-2A Agricultural Labor Contractors
Everglades and Statewide are agricultural labor contractors
("ALCs"), also known as H-2A Labor Contractors. In
laymen's terms, these ALCs contract with growers to
provide them needed labor and then use the H-2A program to
hire foreign workers to complete this labor. More formally,
DOL regulations define an ALC as:
Any person who meets the definition of employer under this
subpart and is not a fixed-site employer, an agricultural
association, or an employee of a fixed-site employer or
agricultural association, as those terms are used in this
part, who recruits, solicits, hires, employs, furnishes,
houses, or transports any worker subject to [the H-2A
20 C.F.R. 655.103(b).
Everglades Harvesting and Hauling, Inc.
Everglades was founded in 1991 to provide harvesting and
hauling services to small and medium sized fruit and
vegetable growers in southwest Florida. See Decl. of
Paul J. Meador, Jr. ("Meador Reply Decl."),
PL's Mem. in Further Support of Mot. for P.I. ("P.I.
Reply") [Dkt. #12], Ex. 2 at 1. Over the following
years, Everglades began to rely on the H-2A program as
"the only reliable means of obtaining capable and
willing agricultural laborers" for its harvesting
operations. Id. These days, Everglades has grown to
provide harvesting, hauling, grove management, and other
agrimanagement services to fruit and vegetable growers
throughout the state of Florida. See Decl. of Paul
J. Meador, Jr. ("Meador Decl."), Mot. for P.I. Ex.
1 ¶ 3. And over the past five years, the company has
come to rely on the H-2A program to find workers to haul
harvested crops to the first point of processing or packing.
See Meador Reply Decl. at 1-2. To that end, the DOL
has certified applications filed by Everglades for H-2A
workers in connection with truck driving positions over the
past several years:
• 9 "agricultural equipment operators" whose
job duties included "hauling citrus to plants" in
• 30 "agricultural equipment operators" whose
job duties included "the collection and hauling of crops
from groves and fields to designated work sites" in
• 30 "truck drivers" whose job duties included
"the collection and hauling of crops from groves and
fields to designated work sites" in 2018.
Meador Decl. ¶ 4; Decl. of Brian D. Pasternak
("Pasternak Decl."), Gov'ts Opp'n to P.I.
Mot. ("P.I. Opp'n") [Dkt. #10], Ex. 1 ¶