         Case: 12-12462   Date Filed: 04/01/2013   Page: 1 of 9


                                                          [PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE ELEVENTH CIRCUIT
                           _____________

                            No. 12-12462
                           _____________

             D.C. Docket No. 3:12-cv-00183-MCR-CJK


BAYOU LAWN & LANDSCAPE SERVICES,
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,
NATIONAL HISPANIC LANDSCAPE ALLIANCE,
SILVICULTURAL MANAGEMENT ASSOCIATES, INC.,
PROFESSIONAL LANDCARE NETWORK, et al.,

                                             Plaintiffs-Appellees,
                                versus
SECRETARY OF LABOR,
JANE OATES,

                                             Defendants-Appellants,


PINEROS Y CAMPESINOS UNIDOS DEL NOROESTE,
COMITE DE APOYO A LOS TRABAJADORES,
JAHEMEL ABULECHE,
ROMULO ABULECHE,
DEBORAH SANTANA,
MARIA RAMIREZ HERNANDEZ,

                                             Intervenor Defendants.
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                                       ____________

                      Appeals from the United States District Court
                          for the Northern District of Florida
                                    ____________

                                       (April 1, 2013)

Before WILSON and HILL, Circuit Judges, and HUCK,* District Judge.


HILL, Circuit Judge:


       Plaintiffs in this case challenge certain rules issued by the Department of

Labor governing the employment of temporary, non-agricultural foreign workers,

asserting that the Department of Labor had no authority to issue these rules. The

district court agreed and granted plaintiffs a preliminary injunction prohibiting the

enforcement of the rules during the pendency of this action. The Department of

Labor filed this appeal.


                                            I.


       The Immigration and Nationality Act of 1952 (the “INA”) established a

framework for the regulation of immigration that includes provisions for


____________________


*Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.


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permanent and temporary foreign workers. In 1986, Congress amended the statute

to provide for separate programs for agricultural and non-agricultural workers. See

8 U.S.C. § 1101(a)(15)(H)(ii)(a), (b). The H-2B program governs non-agricultural

workers.1 It permits an employer to hire an individual “having a residence in a

foreign country which he has no intention of abandoning who is coming

temporarily to the United States to perform other temporary service or labor if

unemployed persons capable of performing such service or labor cannot be found

in this country . . . .” 8 U.S.C. § 1101(a)(15)(H)(ii)(b). It is used primarily by

small businesses, including landscaping, hotel, construction, restaurant and forestry

businesses. 2

       The INA initially vested all authority for implementing its provisions –

including rulemaking for the H-2B program – in the Attorney General of the

United States. Later, Congress transferred this authority to the Department of

Homeland Security (the “DHS”). 3 In 1986, when Congress split the agricultural

workers and the non-agricultural workers into two separate programs, Congress

granted the Department of Labor (the “DOL”) limited rulemaking authority over


       1
           The H-2A program governs agricultural workers.
       2
      All of the plaintiffs in this action participate in the H-2B program or are comprised of
members who participate in the program.
       3
         The “Secretary of Homeland Security shall be charged with the administration and
enforcement of [the INA]” and “shall establish such regulations . . . as he deems necessary for
carrying out his authority under the provisions of this chapter.” 8 U.S.C. § 1103(a).
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the agricultural H-2A program, but declined to extend that authority to the non-

agricultural program. The DOL does not dispute that it has no express authority to

make rules for the H-2B program.


       Nonetheless, the DOL has engaged in legislative rulemaking for the H-2B

program. In 2011, DOL published proposed new rules in the Federal Register that

would make significant changes in how the program is administered. 4 Plaintiffs

filed this action, arguing that DOL has no authority to issue the rules. DOL

counters that its authority may be inferred from the “statutory scheme [that] shows

a Congressional intention to grant [it] rulemaking power.” The district court

rejected this argument, holding that plaintiffs are likely to succeed on the merits of

their claim. The district court also held that plaintiffs demonstrated a substantial

threat of irreparable harm to them from the implementation of the new rules, that

the threatened harm outweighed whatever damage the injunction might cause

DOL, and that the injunction would not be adverse to the public interest. We

review the grant of the preliminary injunction under the deferential abuse of

discretion standard. Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333, 1335 (11th

       4
          These rules would decrease the maximum number of months an employer may employ
an H-2B worker from ten to nine; require employers to guarantee that H-2B employees will work
at least seventy-five percent of the hours certified in any twelve-week period and, if not, pay the
employees the difference for the time not worked; require employers to pay non H-2B workers’
wages and benefits at least equal to those paid to H-2B workers if the two perform “substantially
the same work;” require employers to pay for the round-trip airfare and subsistence costs of H-
2B workers; and impose additional bureaucratic requirements, such as the filing of job orders,
performing extensive domestic recruitment, and applying for a temporary labor certification.
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Cir. 2002). We review the district court’s conclusions of law, however, de novo.

Id.


                                          II.


1.     Plaintiffs’ Likelihood of Success on the Merits


       In its proposed and final rules, DOL cited two statutory provisions as the

source of its rulemaking authority. First, DOL cited 8 U.S.C. § 1184(c)(1), which

instructs the Secretary of DHS to consult with the “appropriate agencies of the

Government” in resolving whether to grant a foreign worker a visa upon the

“petition of the importing employer.” Although there is no grant of rulemaking

authority to DOL in this statutory section, DOL asserts that as the result of the

permission it grants to DHS to consult with it, DOL “has authority to issue

legislative rules to structure its consultation with DHS.” The end result, in DOL’s

view, is that it is empowered to engage in rulemaking, even without the DHS.


       We reject this interpretation of “consultation.” Under this theory of

consultation, any federal employee with whom the Secretary of DHS deigns to

consult would then have the “authority to issue legislative rules to structure [his]

consultation with DHS.” This is an absurd reading of the statute and we decline to

adopt it.



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      DHS was given overall responsibility, including rulemaking authority, for

the H-2B program. DOL was designated a consultant. It cannot bootstrap that

supporting role into a co-equal one.


      Secondly, DOL cited 8 U.S.C. § § 1101(a)(15)(H)(ii)(b) as statutory

authority for its proposed new rules. This provision defines an H-2B worker as a

temporary worker who comes to perform a job that cannot be filled by people

already in the country. Again, there is no grant of rulemaking authority in this

statutory section, and it is not apparent how DOL’s authority to make rules is

implied by this section.

      Furthermore, the immediately preceding statutory section, which defines an

agricultural worker, expressly grants DOL rulemaking authority over the

agricultural worker H-2A program. The absence of a delegation of rulemaking

authority to DOL over the non-agricultural H-2B program in the presence of a

specific delegation to it of rulemaking authority over the agricultural worker H-2A

program persuades us that Congress knew what it was doing when it crafted these

sections. See Dean v. United States, 556 U.S. 568, 573 (2009) (“where Congress

includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion”). We conclude that the


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district court did not err when it decided that neither of these two statutory

provisions supports any rulemaking authority in DOL over the H-2B program.


       DOL next argues that the “text, structure and object” of the INA evidence a

congressional intent that DOL should exercise rulemaking authority over the H-2B

program. This would be a more appealing argument if Congress had not expressly

delegated that authority to a different agency. Even if it were not axiomatic that an

agency’s power to promulgate legislative regulations is limited to the authority

delegate to it by Congress, see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

208 (1988), we would be hard-pressed to locate that power in one agency where it

had been specifically and expressly delegated by Congress to a different agency.


       Furthermore, if congressional silence is a sufficient basis upon which an

agency may build a rulemaking authority, the relationship between the executive

and legislative branches would undergo a fundamental change and “agencies

would enjoy virtually limitless hegemony, a result plainly out of keeping with

Chevron and quite likely with the Constitution as well.” Ethyl Corp. v. EPA, 51

F.3d 1053, 1060 (D.C. Cir. 1995).5


       5
         The DOL also argues in its appellate brief that its rulemaking authority can be inferred
from the “relationship between the Wagner-Peyser Act and the INA.” We find that DOL has
waived this argument by not presenting it to the district court in a timely manner. In any event,
the reliance on a statute that is limited to the funding, operation and coordination of state
unemployment offices cannot be stretched to authorize DOL to issue rules to implement a visa
program committed by law to the governance of another agency.
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      We conclude that plaintiffs have shown a substantial likelihood of success

on the merits of their claim that DOL has exercised a rulemaking authority that it

does not possess.


2.    Irreparable Harm, Danger of Delay to DOL, Public Interest


      The district court took evidence at its hearing on each of the remaining

factors to be considered prior to granting a preliminary injunction. The court

found that the plaintiffs had demonstrated that the new rules would have an

immediate and significant impact on them, resulting in lost revenue, customers,

and/or goodwill. We find no clear error in these findings of fact. We have held

that these facts support a finding of irreparable injury. See BellSouth Telecomm.,

Inc., v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 970 (11th Cir.

2005). Accordingly, we find no reversible error in this holding.


      As to the danger of delay in the implementation of the rules, the district

court found that DOL did not articulate any harm it would suffer as a result in a

delay. On appeal, DOL argues that it is harmed by having “its entire regulatory

program called into question.” This is not an appealing argument. If the “entire

regulatory program” is ultra vires, then it should be called into question.


                                         III.



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      Having found that the district court’s legal conclusion regarding the

plaintiffs’ likelihood of success on the merits is without error, and that its findings

of fact supporting its conclusions that none of the other factors militates against the

issuance of the preliminary injunction are without clear error, we hold that the

judgment of the district court that the preliminary injunction should issue is due to

be


      AFFIRMED.




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