Alpha Services v. Thomas Perez , 681 F. App'x 584 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALPHA SERVICES, LLC, an Idaho No. 14-35765
Limited Liability Company; ROBERT
ZAHARIE, D.C. No. 2:14-cv-00012-BLW
Plaintiffs-Appellants,
MEMORANDUM*
v.
THOMAS E. PEREZ, U.S. Secretary of
Labor, in his official capacity; U.S.
DEPARTMENT OF LABOR
ADMINISTRATIVE REVIEW BOARD;
LAURA FORTMAN, Principal Deputy
Wage and Hour Administrator, in her
official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Richard C. TALLMAN, Circuit Judge, Presiding
Argued and Submitted February 7, 2017
Seattle, Washington
Before: FISHER, PAEZ, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
In 2010, the Department of Labor (the “Secretary”) fined Alpha Services,
LLC (“Alpha”), a forestry services company, for attaching trailers to its crew-
carrier pickup trucks in violation of 29 C.F.R. § 500.105(b)(2)(ix). The
Administrative Review Board (the “Board”) determined that Alpha’s crew-carrier
pickup trucks were “trucks” and not “buses” under this regulation, and upheld the
fine. Alpha appealed the Board’s decision to the District Court, which found that
the Board’s interpretation of the regulation was entitled to deference under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), and affirmed the Board’s decision.
Alpha timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. The Secretary challenges the District Court’s exercise of jurisdiction
over this case, contending that Alpha did not timely appeal the Board’s decision.
We “review the district court’s exercise of jurisdiction de novo.” United States v.
Powell, 24 F.3d 28, 30 (9th Cir. 1994) (citing Scott v. Younger, 739 F.2d 1464,
1466 (9th Cir. 1984)) (emphasis original). Alpha was required to file a notice of
appeal with the district court within thirty days of the Board’s decision. 29 U.S.C.
§ 1853(c). Within thirty days of the Board’s decision, Alpha filed a document
titled “complaint.” Federal Rule of Appellate Procedure 3 cautions that “[a]n
appeal must not be dismissed for informality of form or title of the notice of
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appeal,” Fed. R. App. P. 3(c)(4), and dismissal of an appeal for “[i]mperfections in
noticing an appeal” is inappropriate “where no genuine doubt exists about who is
appealing, from what judgment, to which appellate court,” Becker v. Montgomery,
532 U.S. 757, 767 (2001) (discussing signature requirement). Because Alpha’s
“complaint” sets forth Alpha’s request that the district court reverse the Board’s
decision, Alpha timely appealed the Board’s ruling and the District Court had
jurisdiction over Alpha’s appeal.
2. “A grant of summary judgment by the district court is reviewed de
novo.” Oregon v. Bureau of Land Mgmt., 876 F.2d 1419, 1425 (9th Cir. 1989)
(citing Nevada v. United States, 731 F.2d 633, 635 (9th Cir. 1984)). The Board’s
interpretation, however, is entitled to deference. We need not resolve whether the
Board’s interpretation of the regulation at issue is entitled to deference under
Skidmore, 323 U.S. 134, or Auer v. Robbins, 519 U.S. 452 (1997), because Alpha
does not prevail even under the more favorable Skidmore standard. “The weight
[accorded to an administrative] judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give
it power to persuade . . . .’” United States v. Mead Corp., 533 U.S. 218, 228
(2001) (quoting Skidmore, 323 U.S. at 140).
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Here, the Board began with the language of the regulation itself, and noted
that the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”) does
not define the terms “bus” and “truck.” While noting that the Department of
Transportation’s definitions of these terms provide “useful guidance,” the Board
first applied canons of statutory construction. The Board determined that Alpha’s
interpretation of the regulation would render the regulation “unmanageable and
absurdly cyclical” when read in conjunction with 29 C.F.R. § 500.105(b)(3)(vi),
another subsection of the same regulation. The Board found its textual analysis
bolstered by a Wage and Hour Advisory memorandum providing guidance on the
interpretation of 29 C.F.R. § 500.105 and the dictionary definitions of the terms
“design” and “construct.” The Board concluded that Alpha’s vehicles were
“trucks” under the regulation based on the original design of the vehicles as trucks.
The Board’s reasoning is persuasive. Its decision is thoroughly considered,
logical, and well-reasoned. There is no indication that the Board’s interpretation is
inconsistent with earlier or later pronouncements of the Secretary. The Board’s
interpretation is therefore entitled to deference, and we affirm the district court’s
grant of summary judgment in favor of the Secretary.
3. Alpha argues that the Secretary may not apply 29 C.F. R.
§ 500.105(b)(2)(ix) to the commercial forestry industry. Although Alpha initially
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raised this argument before the District Court, it affirmatively abandoned this
argument at the summary judgment hearing and conceded that the regulation
validly applied to Alpha. Alpha has thus waived this argument on appeal. See
Reynoso v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006) (citing Russell v. Rolfs,
893 F.2d 1033, 1038–39 (9th Cir. 1990)).
But even if Alpha had not waived this argument, it does not require a
different result. First, the Secretary was not required to engage in notice and
comment rulemaking before interpreting its own regulation to apply in a particular
way, even when the new interpretation is fundamentally different from a prior one.
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015). Second, we held in
Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987), that the MSPA applies to forestry
workers. Id. at 1166. Alpha provides no principled reason for finding that while
“agriculture” includes forestry under the MSPA statutes and “forestry workers” are
“engaged in ‘agricultural employment’” for purposes of the MSPA, id., employers
of forestry workers, such as Alpha, are not “agricultural employers” under the
MSPA’s implementing regulations such as § 500.105(b)(2)(ix).
AFFIRMED.
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