Durable Manufacturing Company v. LABR ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4122
D URABLE M ANUFACTURING C O ., et al.,
Plaintiffs-Appellants,
v.
U NITED S TATES D EPARTMENT OF L ABOR,
E MPLOYMENT AND T RAINING
A DMINISTRATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 2782—Amy J. St. Eve, Judge.
A RGUED JUNE 5, 2009—D ECIDED A UGUST 18, 2009
Before M ANION, R OVNER, and T INDER, Circuit Judges.
M ANION, Circuit Judge. Fourteen unrelated Illinois
businesses and fifteen aliens sued the Employment and
Training Administration of the Department of Labor
(“DOL”) and the Bureau of Citizenship and Immigration
Services of the Department of Homeland Security (“DHS”),
2 No. 08-4122
challenging a regulation promulgated by DOL that effec-
tively invalidated labor certifications that had been
issued to the plaintiffs. Following cross-motions for
summary judgment, the district court entered judgment
in favor of DOL and DHS. The plaintiffs appeal. We affirm.
I.
Under § 203(b)(3)(A)(i) and (iii) of the Immigration
and Nationality Act, Congress has made available a
number of employment-based visas for aliens who
qualify as skilled or unskilled workers. 8 U.S.C.
§ 1153(b)(3)(A)(i), (iii). An employer seeking to hire such
a worker may file a visa petition (called a Form I-140
Petition for Immigrant Worker, 8 C.F.R. § 204.5(a)) with
DHS on the alien’s behalf. Id. § 1154(a)(1)(F).1 Before a
visa may be issued, however, the Secretary of Labor
must have issued a labor certification in conformity with
8 U.S.C. § 1182(a)(5)(A)(i). Id. § 1153(b)(3)(C). That
section provides as follows:
1
Although this provision states that the petition should be
filed with the “Attorney General,” the authority to adjudicate
immigrant visa petitions was transferred to the Director of the
Bureau of Citizenship and Immigration Services (an agency
within DHS) by the Homeland Security Act of 2002, Pub. L.
No. 107-296, § 451(b), 116 Stat. 2135, 2196 (codified at 6 U.S.C.
§ 271(b)). Under 6 U.S.C. § 557, references in federal law to
any agency or officer whose functions have been transferred
to DHS shall be deemed to refer to the Secretary of DHS
or other official or component to which the functions were
transferred.
No. 08-4122 3
Any alien who seeks to enter the United States for the
purpose of performing skilled or unskilled labor is
inadmissible, unless the Secretary of Labor has deter-
mined and certified to the Secretary of State and the
Attorney General that (I) there are not sufficient
workers who are able, willing, qualified (or equally
qualified in the case of an alien described in clause (ii))
and available at the time of application for a visa
and admission to the United States and at the place
where the alien is to perform such skilled or unskilled
labor, and (II) the employment of such alien will not
adversely affect the wages and working conditions
of workers in the United States similarly employed.
Id. § 1182(a)(5)(A)(i)(I)-(II).
Based on that statute, DOL has promulgated regulations
pertaining to the labor certification process. 20 C.F.R.
§§ 656.1-.41. Previously, with one exception not relevant
here, § 656.30 provided that approved labor certifications
were “valid indefinitely.” Id. § 656.30(a) (2006). Following
notice and comment rulemaking procedures,2 however,
§ 656.30 was amended on May 17, 2007 (with an effec-
tive date of July 16, 2007)3 to provide:
For certifications resulting from applications filed
under this part and 20 CFR part 656 in effect prior
to March 28, 2005, the following applies: (1) An ap-
proved permanent labor certification granted on or
2
See 71 Fed. Reg. 7656-60 (February 13, 2006).
3
See 72 Fed. Reg. 27,946 (May 17, 2007).
4 No. 08-4122
after July 16, 2007 expires if not filed in support of a
Form I-140 petition with the Department of Homeland
Security within 180 calendar days of the date the
Department of Labor granted the certification. (2) An
approved permanent labor certification granted
before July 16, 2007 expires if not filed in support of
a Form I-140 petition with the Department of Home-
land Security within 180 calendar days of July 16, 2007.
20 C.F.R. § 656.30(b)(1)-(2) (2009). According to DOL, one
reason for the new regulation was to curb the growing
black market in labor certifications, wherein indefinitely
valid labor certifications were traded and sold to the
highest bidder. 71 Fed. Reg. 7659. Another reason for
creating a finite validity period for labor certifications
was to “more closely adhere[]” to the command of
8 U.S.C. § 1182(a)(5)(A)(i)(I) that DOL gauge the suf-
ficiency of the supply of able, willing, qualified, and
available workers at the time of the visa application. 72
Fed. Reg. 27,924. DOL further explained that “[l]abor
market conditions are subject to rapid change, and it is
consistent with DOL’s mandate under [§ 1182(a)(5)(A)(i)(I)]
to require a retest of the market after the passage of [180
days].” Id. Moreover, DOL concluded that “[t]he imposi-
tion of a validity period is a logical mechanism by which
the Department can ensure that the information upon
which a determination was based remains legitimate.”
72 Fed. Reg. 27,925.
Between March 2001 and May 2007, fourteen unaffili-
ated Illinois businesses filed applications for labor certi-
fications on behalf of fifteen potential alien employees.
No. 08-4122 5
Thirteen of the fifteen applications were approved
before the amended § 656.30(b) took effect on July 16, 2007;
the other two applications were approved after that date.4
After eight of the alien workers’ visa petitions 5 were
rejected by DHS because of expired labor certifications,
the fourteen businesses and fifteen aliens filed suit
against DOL and DHS in the Northern District of Illinois.
In their complaint, the plaintiffs sought a declaratory
judgment that DOL’s promulgation of the amended
§ 656.30(b) was beyond its authority or, alternatively, that
retroactive application of the amended regulation is
unlawful. The eight plaintiffs who had their visa petitions
denied also sought a writ of mandamus against DHS
to compel the agency to process their visa petitions.
Following cross-motions for summary judgment, the
district court granted summary judgment in favor of the
defendants and denied the same for the plaintiffs. The
plaintiffs appeal.
II.
“We review de novo the district court’s disposition of
cross-motions for summary judgment, while construing
the evidence and all reasonable inferences in favor of the
4
These were the applications of Dijuje Group, Inc. and Country
Landscaping & Supply filed on behalf of Bolivar Bautista
Castelan and Manuel Quintana, respectively
5
Of the fifteen potential immigrant employees, ten filed visa
petitions and five did not.
6 No. 08-4122
party against whom the motion under consideration is
made.” Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th
Cir. 2008). Summary judgment is appropriate if “there is
no genuine issue as to any material fact and . . . the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).
A.
The plaintiffs first assert that DOL’s amendment of
§ 656.30 to limit the validity of labor certifications was
beyond the scope of its statutory authority.6 DOL responds
that it was acting within its authority when it amended
§ 656.30. The Supreme Court instructs that “[a]lthough
agency determinations within the scope of delegated
authority are entitled to deference, it is fundamental ‘that
an agency may not bootstrap itself into an area in which
it has no jurisdiction.’ ” Adams Fruit Co., Inc. v. Barrett,
6
The plaintiffs do not contend that DOL lacks statutory
authority to issue regulations pertaining to labor certifications
in general. In fact, they assume in their briefs that such
authority exists. We will proceed under that assumption for
the purposes of this opinion, and thus we need not resolve
the question we left unanswered in Production Tool Corp. v.
Employment & Training Administration, 688 F.2d 1161, 1167 n.1
(7th Cir. 1982), and Industrial Holographics, Inc. v. Donovan, 722
F.2d 1362, 1366 n.6 (7th Cir. 1983): whether DOL’s regulations
are legislative rules promulgated pursuant to an implied
congressional delegation of power or merely interpretive
rules issued through DOL’s inherent authority.
No. 08-4122 7
494 U.S. 638, 650 (1990) (quoting Fed. Mar. Comm’n v.
Seatrain Lines, Inc., 411 U.S. 726, 745 (1973)). Accordingly,
this circuit reviews de novo an agency’s determination
of the scope of its own jurisdiction. N. Illinois Steel
Supply Co. v. Sec’y of Labor, 294 F.3d 844, 847 (7th Cir.
2002). We examine the text and purpose of a statute to
determine whether a regulation falls within the scope of
the authority the statute delegates. See Am. Hosp. Ass’n
v. Schweiker, 721 F.2d 170, 176-78 (1983).
Under § 1182(a)(5)(A)(i), the Secretary of Labor must
make two substantive determinations before issuing a
labor certification: 1) there is an insufficient number of
able, willing, qualified, and available workers (herein-
after “sufficient workers determination”); and 2) em-
ployment of the alien will not adversely affect the
wages and working conditions of similarly situated
workers. Of key importance here, when making the
sufficient workers determination, the Secretary must
certify that the supply of such workers is insufficient at
a specific point in time: “at the time of application for
a visa and admission to the United States.” 8 U.S.C. § 1182
(a)(5)(A)(i)(I). By declaring approved labor certifications
indefinitely valid without any linkage to the filing of a
visa petition, the earlier version of § 656.30(a) did not
apply the statutory provision that the sufficient workers
determination be made “at the time of application for a
visa.” Section 656.30 was amended so that a labor certi-
fication expires if not filed in support of a visa applica-
tion within 180 days of the certification’s approval.
Thus, DOL implemented § 1182(a)(5)(A)(i)(I) by im-
posing a time limit between the certification and the visa
application. Put another way, DOL’s imposition of that
8 No. 08-4122
time limitation on the validity of a labor certification
ensures that the sufficient workers determination reflects
the state of the labor market at the time the anticipated
employee’s application for a visa and admission is made.
Assuming that DOL possessed statutory authority to
promulgate regulations pertaining to labor certifications,
then the amended § 656.30(b) is within the scope of
DOL’s authority because it complies with the explicit
language from § 1182(a)(5)(A)(i)(I).
In addition, the amendment is consistent with one of
the overarching purposes behind labor certifications:
protection of the domestic labor force from job competition.
Prod. Tool Corp., 688 F.2d at 1168. Section 656.30(b) limits
the validity of approved labor certifications: if, within
180 days of issuance, an approved certification is not filed
in support of a petition for a visa and admission, it be-
comes void. Thus, the amended § 656.30(b) ensures that the
snapshots of the labor market taken when labor certifica-
tions are approved are not stale appraisals of the labor
market when the visa petitions are filed. This protects
Americans who are currently able, willing, qualified, and
available to fill certain skilled and unskilled positions
from having to compete with aliens who were issued
labor certifications (and are now applying for visas) at a
time when the domestic work force was insufficient to
fill such positions.
As the plaintiffs point out, merely because an ap-
proved labor certification is filed in support of a visa
application within the amended § 656.30(b) time frame
does not ensure that, at the time of a visa’s issuance by
DHS (the process can take a while), the current labor
No. 08-4122 9
market is roughly the same as it was at the time the
labor certification was issued. But that is an issue for
Congress and DHS to address. The point remains that
the new § 656.30(b) advances, to some degree, the congres-
sional purpose of protecting American workers.7
In sum, we conclude that the promulgation of § 656.30(b)
was within DOL’s statutory authority because it com-
ports with the textual mandate of § 1182(a)(5)(A)(i)(I) for
DOL to ascertain the sufficiency of workers at the time
an application for a visa is made, and it furthers one of
the congressional purposes behind the labor certifica-
tion requirement.8
7
The plaintiffs rely on Medellin v. Bustos, 854 F.2d 795 (5th Cir.
1988), to argue that the amendment is outside of DOL’s author-
ity because it intrudes upon turf committed solely to DHS’s
administration, i.e., management of the visa petition process.
This case is materially distinguishable from Medellin. In
Medellin, the Fifth Circuit held that a DOL operating instruc-
tion had in effect rewritten the relevant statute (the current
§ 1182(a)(5)(A)(i)) because there was no statutory language
suggesting DOL could limit a labor certification to the alien
originally named in the application, 854 F.2d at 798. Here,
however, there is indeed statutory language clearly directing
that DOL’s sufficient workers determination be linked in time
to the filing of a visa application. Hence, the amendment
was consistent with the statutory division of administrative
authority between DOL and DHS.
8
The plaintiffs do not challenge the reasonableness of DOL’s
interpretation of § 1182(a)(5)(A)(i)(I) in its promulgation of
(continued...)
10 No. 08-4122
B.
Alternatively, the plaintiffs argue that even if DOL had
the statutory authority to promulgate the amended
§ 656.30(b), that regulation has an impermissibly retroac-
tive effect as applied to them. We review de novo the
question of whether a law operates retroactively. Faiz-
Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir. 2005).
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the
Supreme Court set forth the analytical framework for
determining whether a statute is retroactive.9 First, we
ask whether Congress has spoken clearly regarding
whether the law should apply retroactively. Landgraf, 511
U.S. at 257, 280. When, as here, an administrative rule is
at issue, the inquiry is two-fold: whether Congress has
expressly conferred power on the agency to promulgate
rules with retroactive effect and, if so, whether the
agency clearly intended for the rule to have retroactive
effect. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
8
(...continued)
§ 656.30(b), so we have no occasion to reach the issue. For
that reason, no Chevron (U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984)) analysis, which is
the level of deference we would apply given the plaintiffs’
assumption, see supra note 6, is required in this case.
9
The Landgraf analysis applies equally to administrative rules.
See Mejia v. Gonzales, 499 F.3d 991, 997 (9th Cir. 2007); Bruh
v. Bessemer Venture Partners III L.P., 464 F.3d 202, 213 (2d Cir.
2006); Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 859
(D.C. Cir. 2002).
No. 08-4122 11
(1988); Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001).
We are unaware of any express statutory provision in-
dicating congressional approval of retroactive rule-
making by DOL in regard to labor certifications. Therefore,
we proceed to the second Landgraf step, which is to ask
whether the regulation has retroactive effect. 511 U.S. at
269-70, 280. A law is not retroactive merely because it is
applied to conduct before the law was passed or
upsets expectations based in prior law. Id. at 269. Rather,
a law has retroactive effect if it “would impair rights a
party possessed when he acted, increase a party’s liability
for past conduct, or impose new duties with respect to
transactions already completed.” Id. at 280. Instead of
being a “simple or mechanical task,” id. at 268, the deter-
mination of whether a law operates retroactively
requires a “commonsense, functional judgment about
‘whether the new provision attaches new legal conse-
quences to events completed before its enactment,’ ” Martin
v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting Landgraf,
511 U.S. at 270). That judgment is informed by consider-
ations of notice, reliance, and settled expectations.
Landgraf, 511 U.S. at 270. If § 656.30(b) operates retroac-
tively, the traditional presumption against the applica-
tion of retroactive laws dictates that it cannot be applied
in this case. Id. at 280.
With regard to the two labor certifications that DOL
approved after the new regulation took effect on July 16,
2007, it is clear that § 656.30(b) has no retroactive effect.
The filing of an application for a labor certification is
simply a preliminary step for obtaining a labor certifica-
12 No. 08-4122
tion. Because it is not a final determination or event, no
new legal consequences would affect the application as
a result of the amended § 656.30(b). See Labojewski v.
Gonzales, 407 F.3d 814, 822 (7th Cir. 2005) (holding
that an application for a visa petition, which was a prereq-
uisite to the filing of an application for adjustment of
status, could not be considered a “ ‘completed transaction’
that gives rise to vested rights or settled expectations
for purposes of the presumption against retroactivity”);
see also Bellsouth Telecomms., Inc. v. Se. Tel., Inc., 462 F.3d
650, 660-61 (6th Cir. 2006) (stating that “filing an applica-
tion with an agency does not generally confer upon
the applicant an inviolable right to have the agency rule
on the application pursuant to the regulations in effect at
the time of filing”); Pine Tree Med. Assocs. v. Sec’y of Health
& Human Servs., 127 F.3d 118, 121 (1st Cir. 1997) (holding
that “the mere filing of an application is not the kind of
completed transaction in which a party could fairly
expect stability of the relevant laws as of the transaction
date”); Chadmoore Commc’ns, Inc. v. FCC, 113 F.3d 235, 241
(D.C. Cir. 1997) (finding that no right vested upon the
filing of plaintiff’s application for an extended imple-
mentation period to construct a mobile radio system).
The thirteen aliens whose labor certifications were
approved prior to July 16, 2007, argue that their labor
certifications were valid permanently and thus gave
them a vested right to file employment-based visa peti-
tions supported by such certifications at any time. They
contend the amended § 656.30(b) is impermissibly retro-
active because it impaired such a right. Not so. Any
right that might have been created with respect to the
No. 08-4122 13
time period of validity of the labor certifications would
have come from the earlier version of § 656.30(a) promul-
gated by DOL. That version simply stated that ap-
proved labor certifications were valid “indefinitely.” The
plaintiffs’ characterization of their labor certifications
as permanently valid is unfounded. In common usage,
the term “indefinite” means “having no exact limits;
indeterminate in extent or amount; not clearly fixed.”
W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY 1147
(2002). Thus, labor certifications approved under the
old regulation were not valid permanently, but only so
long as no definite period of validity was fixed by DOL.
By definition, then, any “right” that the plaintiffs may
have obtained to file their approved labor certifications
in support of visa petitions at any time they chose was co-
extensive with the duration of the “indefinite” regulation.
When DOL amended § 656.30(b) essentially to establish
a 180-day time limit for previously approved labor certifi-
cations, the plaintiffs’ right to the certifications’ indefinite
validity ended. Therefore, upon the approval of the
updated § 656.30(b), the plaintiffs did not possess any
vested right that the amended regulation could im-
pair.10 Similarly, any expectations that the plaintiffs
10
The plaintiffs rely on Maceren v. District Director, INS, 509
F.2d 934 (9th Cir. 1974), in support of their retroactivity argu-
ment, but that case is materially distinguishable. In Maceren,
an alien was denied a visa because the labor certification
supporting his preference petition expired due to the promul-
gation of a new rule by DOL. 509 F.2d at 937-38. The new
regulation, which placed a one-year validity period on all
(continued...)
14 No. 08-4122
had regarding the continued validity of their labor certifi-
cations were not settled due to the unfixed character
of the old regulation. Accordingly, we hold that applica-
tion of the new § 656.30(b) has no retroactive effect in
this case.
III.
We conclude that § 656.30(b) falls within the scope of
DOL’s statutory authority to promulgate regulations
pertaining to the labor certification process. Further, we
hold that § 656.30(b) does not operate retroactively. For
these and all foregoing reasons, we A FFIRM the judg-
ment of the district court.
10
(...continued)
labor certifications, rendered the alien’s previously approved
labor certification invalid immediately without any op-
portunity to preserve its validity. Id. After balancing the
inequities of retroactive application of the regulation against
the statutory interests, the Ninth Circuit held that retroactive
application of the regulation was improper. Id. at 939-41.
By contrast, in this case the plaintiffs’ labor certifications
were not rendered invalid on the effective date of § 656.30(b);
rather, the plaintiffs were afforded 180 days in which they
could preserve the validity of their previously approved labor
certifications. This was the same 180-day limitation attached
to certifications approved after July 16, 2007.
8-18-09