[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-12462

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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

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(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 nonagricultural 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 H2B 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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